An Act relating to the discipline of the Defence Force and for
related purposes
Part I—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Defence
Force Discipline Act 1982.
2
Commencement [see Note 1]
(1) Part I and Part XI shall come
into operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act
shall come into operation on a date to be fixed by Proclamation.
3
Interpretation
(1) In this Act, unless the contrary
intention appears:
accused person means a person who has been
charged with a service offence.
active service, in relation to a member of
the Defence Force, means:
(a) service by the member in
connection with operations against the enemy;
(b) service by the member with a force
specified in a declaration by the Governor‑General that is in force under
subsection 4(1); or
(c) service by the member in an area
specified in a declaration by the Governor‑General that is in force under
subsection 4(2).
aircraft includes any machine that can derive
support in the atmosphere from the reactions of the air.
airman means a member of the Australian Air
Force, not being an officer.
allied force means a force of another country
that is acting in co‑operation with the Defence Force.
ancillary offence, in relation to an offence
against this Act or the regulations, means an offence against:
(a) section 11.1, 11.4 or 11.5 of
the Criminal Code; or
(b) section 6 of the Crimes
Act 1914;
that relates to that other offence.
ancillary Territory offence, in relation to
another Territory offence (the first Territory offence), means an
offence against:
(a) section 11.1, 11.4 or 11.5 of
the Criminal Code; or
(b) section 6 of the Crimes
Act 1914; or
(c) section 44, 47 or 48 of the Criminal
Code 2002 of the Australian Capital Territory; or
(d) section 181 of the Crimes
Act 1900 of the Australian Capital Territory; or
(e) a provision of a law in force in
the Jervis Bay Territory (other than a Commonwealth law) that is prescribed for
the purposes of this paragraph (see subsection (3A));
that relates to the first Territory offence.
another country means a country other than Australia.
appoint includes re‑appoint.
appropriate authority:
(a) in relation to proceedings before
a court martial, means:
(i) the Registrar; or
(ii) the President of the
court martial; and
(b) in relation to proceedings before
a Defence Force magistrate, means:
(i) the Registrar; or
(ii) the Defence Force
magistrate; or
(c) in relation to proceedings before
a summary authority, means the summary authority.
audio link means facilities (for example, telephone
facilities) that enable audio communication between persons in different
places.
Australia, when used in a geographical sense,
includes the external Territories.
authorized officer means an officer, or an
officer included in a class of officers, authorized, in writing, by the Chief
of the Defence Force or a service chief for the purposes of the provision in
which the expression occurs.
charge means a charge of a service offence.
Chief Judge Advocate means the Chief Judge
Advocate appointed under section 188A.
civil court means a federal court or a court
of a State or Territory.
civil court offence means:
(a) an offence against a law of the
Commonwealth (other than a service offence); or
(b) an offence against a law of a
State or Territory.
civil detention facility means a police
station or any other premises in which persons in custody awaiting trial in a
civil court may lawfully be detained.
competent reviewing authority has the meaning
given by section 150A.
constable means a member, or a special
member, of the Australian Federal Police or a member of the police force of a
State or Territory.
convicted person means a person convicted of
a service offence by a service tribunal, a reviewing authority or the Defence
Force Discipline Appeal Tribunal.
Court Martial and Defence Force Magistrate Rules
means the rules made under section 149A.
custodial offence means:
(a) an offence against subsection
54A(1) or (2); or
(b) an offence that:
(i) is an ancillary
offence in relation to an offence against subsection 54A(1) or (2); and
(ii) was committed by a
person at a time when the person was a detainee.
custodial punishment means a punishment of a
kind referred to in subsection 68A(1).
custody means custody under this Act.
defence civilian means a person (other than a
defence member) who:
(a) with the authority of an
authorized officer, accompanies a part of the Defence Force that is:
(i) outside Australia; or
(ii) on operations against
the enemy; and
(b) has consented, in writing, to
subject himself or herself to Defence Force discipline while so accompanying
that part of the Defence Force.
Defence Force Discipline Appeal Tribunal
means the Defence Force Discipline Appeal Tribunal constituted under the Defence
Force Discipline Appeals Act 1955.
Defence Force magistrate means a Defence
Force magistrate appointed under section 127.
defence member
means:
(a) a member of the Permanent Navy,
the Regular Army or the Permanent Air Force; or
(b) a member of the Reserves who:
(i) is rendering
continuous full‑time service; or
(ii) is on duty or in
uniform.
Deputy Judge Advocate General means a Deputy
Judge Advocate General appointed under section 179.
detainee means a person who is undergoing a
punishment of detention in a detention centre.
detention centre means a place, not being a
prison, that is operated by the Defence Force as a place for the detention of
persons on whom punishments of detention have been imposed.
Director of Military Prosecutions means the
Director of Military Prosecutions appointed under section 188GF.
elective punishment means a punishment set
out in column 2 of an item of Table B or C in Schedule 3.
enemy person means a person who is:
(a) a representative or agent of the
enemy; or
(b) a member of:
(i) an armed force of a
body politic that constitutes the enemy; or
(ii) an armed force or
other force that constitutes the enemy.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
general order means:
(a) a Defence Instruction (General), a
Defence Instruction (Navy), a Defence Instruction (Army) or a Defence
Instruction (Air Force);
(b) any other order, instruction or
directive issued by, or under the authority of, the Chief of the Defence Force
or a service chief; or
(c) a general, standing, routine or
daily order in force with respect to a part of the Defence Force.
hearing, in relation to a service tribunal,
includes the announcement of the verdict of the tribunal and the taking of
action by the tribunal under Part IV in relation to a convicted person.
institution, in relation to the Defence Force
or an allied force, means a mess, club, band, canteen or other institution of
the Defence Force or of the allied force, as the case may be.
judge advocate, in relation to a court
martial, means the judge advocate of the court martial.
Judge Advocate General means the Judge
Advocate General appointed under section 179.
judge advocates’ panel means the panel
referred to in subsection 196(1).
legal officer means an officer who is a legal
practitioner.
legal practitioner means a person who is
enrolled as a barrister, a solicitor, a barrister and solicitor or a legal
practitioner of a civil court.
medical practitioner means a person who is
registered or licensed as a medical practitioner under a law of a State or
Territory that provides for the registration or licensing of medical
practitioners.
member below non‑commissioned rank means a
member of the Defence Force who is not an officer, a warrant officer or a non‑commissioned
officer.
mutiny means a combination between persons who
are, or of whom at least 2 are, members of the Defence Force:
(a) to overthrow lawful authority in
the Defence Force or in an allied force; or
(b) to resist such lawful authority in
such a manner as to prejudice substantially the operational efficiency of the
Defence Force or of, or of a part of, an allied force.
non‑commissioned officer means:
(a) a sailor holding a rank not higher
than the rank of chief petty officer and not lower than the rank of leading
seaman;
(b) a soldier holding a rank not higher
than the rank of staff sergeant and not lower than the rank of lance‑corporal;
or
(c) an airman holding a rank not
higher than the rank of flight sergeant and not lower than the rank of
corporal.
officer means:
(a) in relation to the Australian Navy—a
person appointed as an officer of the Australian Navy, including a person who
holds the rank in the Australian Navy of Acting Sub‑Lieutenant or of
Midshipman; and
(b) in relation to the Australian Army
and the Australian Air Force—a person appointed as an officer of the Australian
Army or the Australian Air Force.
old system offence means an offence under
previous service law that was committed by a member of the Defence Force at any
time during the period of 3 years that ended on the day immediately before the
proclaimed date.
order
includes:
(a) a general order; and
(b) a command given to a member of the
Defence Force by a superior officer.
overseas court means a court of a place
outside Australia that has jurisdiction to try charges of offences against the
law of that place.
overseas offence means an offence against a
law of a place outside Australia.
place of confinement means:
(a) a civil detention facility; or
(b) a detention centre.
police member means:
(a) a service police officer; or
(b) a sailor, soldier or airman who is
a member of a police corps or service.
prescribed acquittal means an acquittal of a
service offence by a court martial or a Defence Force magistrate on the ground
of unsoundness of mind.
President, in relation to a court martial,
means the President of the court martial.
previous service law means the following laws
as in force at any time during the period of 3 years that ended on the day
immediately before the proclaimed date:
(a) the Naval Defence Act 1910 and
regulations in force under that Act;
(b) the Defence Act 1903 in its
application to and in relation to the Australian Navy and the members of the
Australian Navy;
(c) where any law of the United Kingdom applied during that period to or in relation to the Australian Navy or the
members of the Australian Navy—that law in that application;
(d) the Defence Act 1903 and
the regulations in force under that Act in their application to and in relation
to the Australian Army and the members of the Australian Army;
(e) where any law of the United Kingdom applied during that period to or in relation to the Australian Army or the
members of the Australian Army—that law in that application;
(f) the Air Force Act 1923 and
regulations in force under that Act;
(g) the Defence Act 1903 in its
application to and in relation to the Australian Air Force and the members of
the Australian Air Force;
(h) where any law of the United Kingdom applied during that period to or in relation to the Australian Air Force or
the members of the Australian Air Force—that law in that application.
prisoner means a convicted person on whom a
punishment of imprisonment has been imposed.
proclaimed date means the date fixed for the
purposes of subsection 2(2).
property includes:
(a) real property; and
(b) personal property; and
(c) money; and
(d) a thing in action or other
intangible property; and
(e) electricity; and
(f) a wild creature that is:
(i) tamed; or
(ii) ordinarily kept in
captivity; or
(iii) reduced (or in the
course of being reduced) into the possession of a person.
public place, in relation to a service
offence, includes a place that at the time of the commission of the offence:
(a) was used by the public; or
(b) was open to the public, whether or
not on the payment of money.
punishment includes a combination of
punishments.
receive, in relation to property, includes
handle, retain, remove, dispose of or realize the property.
Registrar means the Registrar of Military
Justice appointed under section 188FB.
relevant Territory offence, in relation to an
offence against section 61, means the Territory offence on which the
offence against section 61 is based.
reparation order means an order under section 84.
Reserves means the Naval Reserve, the Army
Reserve and the Air Force Reserve.
restitution order means an order under
section 83.
review means a review by a reviewing
authority, or by the Chief of the Defence Force or a service chief, in
accordance with Part VIIIA, of the proceedings of a service tribunal.
reviewing authority means a reviewing
authority appointed under section 150.
rules of procedure means the following:
(a) the Summary Authority Rules;
(b) the Court Martial and Defence
Force Magistrate Rules.
sailor means a member of the Australian Navy,
not being an officer.
Schedule 1A offence means:
(a) an offence specified in
Schedule 1A; or
(b) an offence that is an ancillary
offence in relation to an offence referred to in paragraph (a).
service chief means the Chief of Navy, the
Chief of Army or the Chief of Air Force.
service land means land (including a building
or other structure) used or occupied by:
(a) the Defence Force;
(b) an allied force; or
(c) an institution of the Defence
Force or of an allied force.
service offence means:
(a) an offence against this Act or the
regulations;
(b) an offence that:
(i) is an ancillary
offence in relation to an offence against this Act or the regulations; and
(ii) was committed by a
person at a time when the person was a defence member or a defence civilian; or
(c) an old system offence.
service police officer means an officer who
is a member of a police corps or service, and includes a provost marshal and a
deputy provost marshal.
service property means property used by, or
in the possession or under the control of:
(a) the Defence Force;
(b) an allied force; or
(c) an institution of the Defence
Force or of an allied force;
and service aircraft, service armoured
vehicle, service missile, service ship, service
vehicle and service weapon have corresponding meanings.
service tribunal means a court martial, a
Defence Force magistrate or a summary authority.
ship means a vessel or boat of any
description, and includes:
(a) any floating structure; and
(b) any air cushion vehicle.
soldier means a member of the Australian
Army, not being an officer.
subordinate summary authority means a
subordinate summary authority appointed under subsection 105(2).
summary authority means:
(a) a superior summary authority;
(b) a commanding officer; or
(c) a subordinate summary authority.
Summary Authority Rules means the rules made
under section 149.
superior authority means a superior authority
appointed under section 5A.
superior officer, in relation to a member of
the Defence Force, means another member of the Defence Force who holds a higher
rank, or a higher relative rank, in the Defence Force than the member, and
includes any other member of the Defence Force who, by virtue of his or her
office or appointment, is entitled to exercise command over the member.
superior summary authority means a superior
summary authority appointed under subsection 105(1).
Territory offence
means:
(a) an offence against a law of the
Commonwealth in force in the Jervis Bay Territory other than this Act or the
regulations; or
(b) an offence punishable under any other
law in force in the Jervis Bay Territory (including any unwritten law) creating
offences or imposing criminal liability for offences.
Note 1: Paragraph (a) of this definition includes
an offence (an ancillary Territory offence) against section 11.1
(attempt), section 11.4 (incitement) or section 11.5 (conspiracy) of
the Criminal Code or section 6 (accessory after the fact) of the Crimes
Act 1914 in relation to another Territory offence within the meaning of
that paragraph.
Note 2: Paragraph (b) of this definition includes
an offence (an ancillary Territory offence) against section 44
(attempt), section 47 (incitement) or section 48 (conspiracy) of the Criminal
Code 2002 of the Australian Capital Territory or section 181
(accessory after the fact) of the Crimes Act 1900 of the Australian
Capital Territory in relation to another Territory offence within the meaning
of that paragraph.
Note 3: The laws of the Australian Capital Territory in
force in the Jervis Bay Territory apply, and Chapter 2 of the Criminal
Code does not apply, for the purpose of determining criminal liability for
offences referred to in paragraph (b) of this definition.
the enemy means a body politic or an armed
force engaged in operations of war against Australia or an allied force and includes
any force (including mutineers and pirates) engaged in armed hostilities
against the Defence Force or an allied force.
video link means facilities (for example,
closed‑circuit television facilities) that enable audio and visual
communication between persons in different places.
warrant officer means a sailor, soldier or
airman who holds the rank of warrant officer.
(2) A reference in this Act to the Defence
Force shall be read as including a reference to a part of that Force.
(3) A reference in this Act to an arm of the
Defence Force shall be read as a reference to the Australian Navy, the
Australian Army or the Australian Air Force, as the case may be.
(3A) Before the Governor‑General makes a
regulation prescribing a provision of a law for the purposes of paragraph (e)
of the definition of ancillary Territory offence in subsection (1),
the Minister must be satisfied that the provision is equivalent to, or has the
same effect as, a provision referred to in paragraph (c) or (d) of that
definition.
(4) For the purposes of subparagraph (b)(ii)
of the definition of defence member in subsection (1):
(a) a member of the Reserves is taken
to be on duty from the time appointed for him or her to report to, or to attend
at, a specified place for any naval, military or air force service that he or
she is required to render by or under the Defence Act 1903, the Naval
Defence Act 1910 or the Air Force Act 1923 until he or she is
released or discharged from that service; and
(b) a member of the Reserves is taken
to be on duty while acting, or purporting to act, in his or her capacity as a
member of the Reserves.
(5) A member of the Defence Force who is
serving in a rank or grade to which the member has not been duly appointed or
promoted shall, while so serving in that rank or grade, be deemed, for the
purposes of this Act, to hold that rank or grade.
(6) A member of the Defence Force who holds a
rank temporarily (however described) shall, while so holding that rank, be
deemed, for the purposes of this Act, to hold that rank.
(7) For the purposes of this Act, a person’s
membership of the Defence Force is not affected by reason only of the person’s
attachment to, or allotment for duty with:
(a) the armed forces of another
country;
(b) a force raised or organized by the
United Nations or another international body; or
(c) a Peacekeeping Force within the
meaning of Part IV of the Veterans’ Entitlements Act 1986.
(8) For the purposes of this Act, a
comparison of the severity of a combination of punishments with that of a
single punishment or of another combination of punishments shall be made as
follows:
(a) any punishment on one side of the
comparison that is the same as a punishment on the other side of the comparison
shall be disregarded;
(b) if, after the operation of paragraph (a),
2 or more punishments remain for consideration on either side of the
comparison, regard shall be had only to the more severe, or the most severe, of
the punishments so remaining on that side.
(9) A reference in this Act to the amount of
a convicted person’s pay for a specific number of days (including a person who
has no pay entitlement in respect of the day on which he or she was convicted)
shall be read as a reference to an amount that is the product of:
(a) the amount that is to be taken,
for the purposes of this Act, to be the amount of daily rate of pay applicable
in relation to a class of persons in which the person is included, being an
amount ascertained in accordance with regulations that are in force for the
purposes of this paragraph and are applicable in respect of the day on which
the person was so convicted; and
(b) the number of days specified in
the reference.
(10) Regulations made for the purposes of paragraph (9)(a)
may provide for an amount of daily rate of pay to be ascertained by reference
to a provision of any other regulations under any Act as in force at a
particular time or as in force from time to time, or any determination under
section 58B or 58H of the Defence Act 1903 as in force at a
particular time or as in force from time to time.
(11) A reference to a commanding officer in a
provision of this Act that confers a power on a commanding officer includes:
(a) a reference to an officer
performing the duties and functions of a commanding officer by virtue of:
(i) a direction given by
means of a Defence Instruction (Navy), a Defence Instruction (Army) or a
Defence Instruction (Air Force); or
(ii) an order, instruction
or directive issued by, or under the authority of, the Chief of the Defence
Force or a service chief; and
(b) a reference to an officer
appointed under subsection 5(1) whose instrument of appointment under that
section authorizes the officer to exercise that power;
but does not include a reference to an officer in respect
of whom a determination relating to the exercise of that power is in force
under subsection 5(3).
(12) A reference in this Act to a person who is
on guard duty shall be read as including a reference to a person who:
(a) is posted or ordered to patrol; or
(b) is a member of a guard or other
party mounted or ordered to patrol;
for the purpose of:
(c) protecting any person, any
premises or place or any ship, vehicle, aircraft or other thing;
(d) preventing or controlling access
to, or egress from, any premises or place or any ship, vehicle, aircraft or
other thing; or
(e) regulating traffic by land or
water.
(15) For the purposes of any law of the
Commonwealth other than this Act, an offence against this Act or the
regulations shall not be taken not to be an offence against a law of the
Commonwealth by reason that it forms part of the law regulating the
relationship between the Commonwealth and members of the Defence Force and
other persons.
(16) Where:
(a) a detainee is granted leave of
absence from a detention centre; and
(b) the detainee refuses or fails to
return to the detention centre before the end of the leave of absence;
the detainee shall be taken, for the purposes of this Act,
to have escaped from custody and from the detention centre.
(17) A reference in a provision of this Act to
the officer in charge of a detention centre is a reference to the officer who
is responsible for the administration of the detention centre, and includes a
reference to a member of the Defence Force, or to a member of the Defence Force
included in a class of members of the Defence Force, authorized by a commanding
officer, in writing, for the purposes of the provision in relation to the
detention centre.
(18) The provisions of this Act in so far as
they protect the individual are in addition to, and not in derogation of, any
rights and freedoms of the individual, whether under the law of the
Commonwealth or of a State or Territory, and this Act is not intended to
exclude or limit the operation of any law of the Commonwealth or of a State or
Territory providing for those rights and freedoms in so far as it is capable of
operating concurrently with this Act.
4
Declaration of active service for disciplinary purposes
(1) The Governor‑General may, by writing
under his or her hand, declare a specified force to be on active service for
the purposes of this Act.
(2) The Governor‑General may, by writing
under his or her hand, declare the members of the Defence Force who are serving
in a specified area to be on active service for the purposes of this Act.
(3) A copy of a declaration made under subsection (1)
or (2) shall be published in the Gazette.
5
Commanding officers for disciplinary purposes
(1) For the purposes of this Act, the Chief
of the Defence Force or a service chief or an authorized officer may, by
instrument in writing, appoint an officer to exercise all the powers conferred
on a commanding officer by or under this Act or such of those powers as are
specified in the instrument of appointment.
(2) An instrument of appointment under subsection (1)
takes effect on the date of the instrument or on such later date as is
specified in the instrument.
(3) For the purposes of this Act, the Chief
of the Defence Force or a service chief or an authorized officer may, by
instrument in writing, determine that a commanding officer shall not exercise
the powers conferred on a commanding officer by or under this Act or such of
those powers as are specified in the instrument.
(4) A determination under subsection (3)
takes effect on the date of the instrument or on such later date as is
specified in the determination.
5A
Appointment of superior authority
The Chief of the Defence Force or a
service chief may, by instrument in writing, appoint an officer, or each
officer included in a class of officers, to be a superior authority for the
purpose of:
(a) representing the interests of the
Defence Force in relation to charges that are being considered by the Director
of Military Prosecutions for possible trial by a Defence Force magistrate or a
court martial; and
(b) exercising the powers and
performing the functions conferred on superior authorities by or under this Act
or the regulations.
6
Further provision with respect to certain members of the Defence Force
(1) In this section, prescribed class,
in relation to members of the Defence Force, means any of the following classes
of such members:
(a) chaplains;
(b) members who have not attained the
age of 18 years;
(c) members receiving instruction or
training.
(2) The regulations may make further
provision relating to the discipline of members of the Defence Force included
in a prescribed class and, in particular, may make provision for:
(a) the exemption of those members
from any provision of this Act, other than this section; and
(b) the modification of any provision
of this Act, other than this section or subsection 68(1) or 68A(1), so far as
it relates to those members.
(3) Regulations made by virtue of subsection (2)
shall not modify a provision of this Act so as to increase the severity of the
punishment provided by this Act for a service offence.
7
Prisoners of war
(1) This Act (including the regulations and
the rules of procedure) applies to, and in relation to, prisoners of war as if
prisoners of war were members of the Defence Force and also defence members.
(2) The regulations may make further
provision relating to the discipline of prisoners of war and, in particular,
may make provision for:
(a) the exemption of prisoners of war
from any provision of this Act, other than this section; and
(b) the modification of any provision
of this Act, other than this section or subsection 68(1) or 68A(1), so far as
it relates to prisoners of war.
(2A) Regulations made by virtue of subsection (2)
shall not modify a provision of this Act so as to increase the severity of the
punishment provided by this Act for a service offence.
(3) The operation of this section is subject
to the Convention and to the Geneva Conventions Act 1957.
(4) In this section:
Convention means the Third Convention, within
the meaning of the Geneva Conventions Act 1957, being that
Convention as having effect subject to and in accordance with any reservation
or declaration referred to in subsection 5(3) of that Act.
prisoner of war means a protected prisoner of
war as defined in subsection 5(2) of the Geneva Conventions Act 1957 for
whom Australia is responsible.
8
Extension to external Territories
This Act extends to every external
Territory.
9
Extra‑territorial operation of Act
The provisions of this Act apply, according
to their tenor, both in and outside Australia but do not apply in relation to
any person outside Australia unless that person is a defence member or a
defence civilian.
Part II—Criminal liability
10
Application of the Criminal Code
Chapter 2 of the Criminal Code applies
to all service offences, other than old system offences.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
11
Recklessness and negligence in relation to a member of the Defence Force
(1) Where a member of the Defence Force is
charged with a service offence arising out of activities (in this subsection
referred to as the relevant activities) upon which the member was
engaged in the course of the member’s duty or in accordance with the
requirements of the Defence Force, a service tribunal, in deciding whether the
member, by act or omission, behaved recklessly shall have regard to the fact
that the member was engaged in the relevant activities in the course of the
member’s duty or in accordance with the requirements of the Defence Force, as
the case may be.
(2) Where a member of the Defence Force is
charged with a service offence arising out of activities (in this subsection
referred to as the relevant activities) upon which the member was
engaged in the course of the member’s duty or in accordance with the
requirements of the Defence Force, a service tribunal, in deciding whether the
member, by act or omission, behaved negligently, shall, to the extent that it
is required, for that purpose, to have regard to the standard of care of a
reasonable person, have regard to the standard of care that would have been
exercised by a reasonable person who:
(a) was a member of the Defence Force
with the same training and experience in the Defence Force or other armed force
as the member charged; and
(b) was engaged in the relevant
activities in the course of the member’s duty or in accordance with the
requirements of the Defence Force, as the case may be.
(3) This section does not, except to the
extent expressly provided, affect, modify or alter the application of Chapter 2
of the Criminal Code to service offences.
(3A) In particular, subsections (1) and (2)
merely provide for matters to which a service tribunal must have regard in
deciding whether a member was reckless, or negligent. They do not alter the
definitions of recklessness and negligence in
sections 5.4 and 5.5 of the Criminal Code.
(3B) Subsections (1) and (2) do not limit
the matters to which a service tribunal may have regard.
(4) In this section, service offence
does not include an old system offence.
14 Act
or omission in execution of law etc.
A person is not liable to be convicted
of a service offence by reason of an act or omission that:
(a) was in execution of the law; or
(b) was in obedience to:
(i) a lawful order; or
(ii) an unlawful order that
the person did not know, and could not reasonably be expected to have known,
was unlawful.
Part III—Offences
Division 1—Offences relating to operations against the enemy
15
Abandoning or surrendering a post etc.
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person has a duty to defend or
destroy a place, post, service ship, service aircraft or service armoured
vehicle; and
(b) the person knows of that duty; and
(c) the person abandons or surrenders
to the enemy the place or thing mentioned in paragraph (a).
Maximum punishment: Imprisonment for 15 years.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
15A
Causing the capture or destruction of a service ship, aircraft or vehicle
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct causes the capture or
destruction by the enemy of a service ship, service aircraft or service
armoured vehicle; and
(c) by engaging in the conduct, the
person intends to bring about that result.
Maximum punishment: Imprisonment for 15 years.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
15B
Aiding the enemy while captured
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person is captured by the enemy;
and
(b) the person serves with the enemy,
aids the enemy in prosecuting hostilities or measures likely to influence
morale or aids the enemy in any other manner that is not authorised by
international law.
Maximum punishment: Imprisonment for life.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
15C
Providing the enemy with material assistance
(1) A person who is a defence member or a
defence civilian is guilty of an offence if the person provides the enemy with,
or permits or enables the enemy to have access to, arms, ammunition, vehicles,
supplies of any description or any other thing likely to assist the enemy.
Maximum punishment: Imprisonment for life.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
15D
Harbouring enemies
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person harbours or protects
another person; and
(b) that other person is an enemy
person; and
(c) that other person is not a
prisoner of war; and
(d) the first‑mentioned person knows
that the other person is an enemy person.
Maximum punishment: Imprisonment for 15 years.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
15E
Offences relating to signals and messages
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person is engaged on service
in connection with operations against the enemy; and
(b) the person:
(i) gives a signal,
message or other communication that the person knows to be false; or
(ii) alters or interferes
with a signal, message or other communication; or
(iii) alters or interferes
with apparatus for giving or receiving a signal, message or other
communication.
Maximum punishment: Imprisonment for 15 years.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
15F
Failing to carry out orders
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person:
(i) is ordered by his or
her superior officer to prepare for, or to carry out, operations against the
enemy; or
(ii) is otherwise under
orders to prepare for, or to carry out, operations against the enemy; and
(b) the person does not use his or her
utmost exertions to carry those orders into effect.
Maximum punishment: Imprisonment for 15 years.
(2) It is a
defence if the person proves that he or she had a reasonable excuse for the
relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
15G
Imperilling the success of operations
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in any conduct;
and
(b) the conduct imperils the success
of operations against the enemy.
Maximum punishment: Imprisonment for 15 years.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
16
Communicating with the enemy
(1) A person who is a defence member or a defence
civilian is guilty of an offence if the person communicates with, or gives
intelligence to, the enemy.
Maximum punishment: Imprisonment for 15 years.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
16A
Failing to report information received from the enemy
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person receives information
from the enemy; and
(b) the person does not make the
information known to proper authority; and
(c) the information is likely to be
directly or indirectly useful in operations against the enemy; and
(d) the person knows or could
reasonably be expected to know that the information is likely to be directly or
indirectly useful in operations against the enemy.
Maximum punishment: Imprisonment for 15 years.
(2) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
16B
Offence committed with intent to assist the enemy
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct that
constitutes an offence against any of sections 15 to 16A (other than
section 15B or 15C); and
(b) the person engages in that conduct
with intent to assist the enemy.
Maximum punishment: Imprisonment for life.
(2) In paragraph (1)(a), strict
liability applies to the physical element of circumstance, that the conduct
constitutes an offence against the section concerned.
Note: For strict liability, see
section 6.1 of the Criminal Code.
17
Leaving a post, abandoning equipment or otherwise failing to perform duty
(1) A defence member is guilty of an offence
if the member is engaged on service in connection with operations against the
enemy and:
(a) the member:
(i) has a duty to be at a
post, position or other place; and
(ii) leaves the post,
position or place; or
(b) the member abandons his or her
weapons or other equipment; or
(c) the member does not properly
perform his or her duty in any other manner in attacking or defending against
the enemy.
Maximum punishment: Imprisonment for 5 years.
(2) It is a defence if the member proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
(3) In this section:
equipment includes vehicles, ammunition,
instruments and tools.
18
Endangering morale
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person spreads a report; and
(b) the report relates to operations
against the enemy; and
(c) by spreading the report the person
intends to create despondency or unnecessary alarm.
Maximum punishment: Imprisonment for 2 years.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person is engaged on service
in connection with operations against the enemy; and
(b) the person spreads a report; and
(c) the report relates to operations
against the enemy; and
(d) by spreading the report the person
intends to create despondency or unnecessary alarm.
Maximum punishment: Imprisonment for 5 years.
19
Conduct after capture by the enemy
(1) A defence member is guilty of an offence
if:
(a) the member is captured by the
enemy; and
(b) any reasonable steps are available
to the member to rejoin his or her force; and
(c) the member does not take those
steps.
Maximum punishment: Imprisonment for 5 years.
(2) A defence
member is guilty of an offence if:
(a) the member and another person are
captured by the enemy; and
(b) any reasonable steps are available
to the other person to rejoin his or her force; and
(c) the member prevents or discourages
the other person from taking those steps.
Maximum punishment: Imprisonment for 5 years.
(3) A defence member is guilty of an offence
if:
(a) the member is captured by the
enemy; and
(b) the member engages in conduct with
the intention of securing favourable treatment for himself or herself; and
(c) the conduct is detrimental to
other persons also captured by the enemy.
Maximum punishment: Imprisonment for 5 years.
(4) A defence member is guilty of an offence
if:
(a) the member is captured by the
enemy; and
(b) the member is in a position of
authority over other persons also captured by the enemy; and
(c) the member ill‑treats those other
persons.
Maximum punishment: Imprisonment for 5 years.
Division 2—Mutiny, desertion and unauthorised absence
20
Mutiny
(1) A defence member who takes part in a
mutiny is guilty of an offence.
Maximum punishment: Imprisonment for 10 years.
(2) A defence member is guilty of an offence
if:
(a) the member takes part in a mutiny;
and
(b) the mutiny’s object, or one of its
objects, is the refusal or avoidance of duty or service in connection with
operations against the enemy or the impeding of the performance of such a duty
or service.
Maximum punishment: Imprisonment for life.
21
Failing to suppress mutiny
(1) A defence member is guilty of an offence
if:
(a) a mutiny is taking place or is
intended; and
(b) the member knows that fact; and
(c) the member does not take
reasonable steps:
(i) to suppress or prevent
the mutiny; or
(ii) to report to proper
authority without delay that the mutiny is taking place or is intended.
Maximum punishment: Imprisonment for 2 years.
(2) A defence member is guilty of an offence
if:
(a) a mutiny is taking place or is
intended; and
(b) the member knows that fact; and
(c) the member knows, or could
reasonably be expected to know, that the mutiny’s object, or one of its
objects, is:
(i) the refusal or
avoidance of duty or service in connection with operations against the enemy;
or
(ii) the impeding of the
performance of such duty or service; and
(d) the
member does not take reasonable steps:
(i) to suppress or prevent
the mutiny; or
(ii) to report to proper
authority without delay that the mutiny is taking place or is intended.
Maximum punishment: Imprisonment for 5 years.
22
Desertion
(1) A defence member is guilty of an offence
if the member:
(a) is on active service or has been
warned for active service; and
(b) without leave, and with the
intention of avoiding that service, departs from, or does not attend at, his or
her place of duty.
Maximum punishment: Imprisonment for 5 years.
(2) A defence member is guilty of an offence
if:
(a) the member is absent without
leave; and
(b) the member engages in conduct; and
(c) the conduct manifests an intention
to avoid active service.
Maximum punishment: Imprisonment for 5 years.
23
Absence from duty
(1) A defence member is guilty of an offence
if the member:
(a) is required to attend for duty;
and
(b) does not attend for the duty.
Maximum punishment: Imprisonment for 12 months.
(2) A defence member is guilty of an offence
if the member:
(a) is required to perform a duty; and
(b) ceases to perform the duty before
he or she is permitted to do so.
Maximum punishment: Imprisonment for 12 months.
(3) An offence under this section is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) It is a defence to a charge under this
section if the person proves that he or she had a reasonable excuse for
engaging in the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
24
Absence without leave
(1) A defence member who is absent without
leave is guilty of an offence.
Maximum punishment: Imprisonment for 12 months.
(2) An offence under subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the member proves that
he or she was absent due to circumstances not reasonably within the member’s
control.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
Division 3—Insubordination and violence
25
Assaulting a superior officer
(1) A defence member is guilty of an offence
if:
(a) the member assaults a person; and
(b) that person is a superior officer.
Maximum punishment: Imprisonment for 2 years.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the member proves that
he or she neither knew, nor could reasonably be expected to have known, that
the person against whom the offence is alleged to have been committed was a
superior officer.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
26
Insubordinate conduct
(1) A defence member is guilty of an offence
if:
(a) the member engages in conduct that
is threatening, insubordinate or insulting to a person; and
(b) the person is a superior officer.
Maximum punishment: Imprisonment for 6 months.
(2) A defence member is guilty of an offence
if:
(a) the member uses language that is
threatening, insubordinate or insulting about a person; and
(b) the language is used in that
person’s presence; and
(c) the person is a superior officer.
Maximum punishment: Imprisonment for 6 months.
(3) An offence against this section is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) It is a defence to a charge under this
section if the person proves that he or she neither knew, nor could reasonably
be expected to have known, that the person against whom the offence is alleged
to have been committed was a superior officer.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
27
Disobeying a lawful command
(1) A defence member is guilty of an offence
if:
(a) a person gives the member a lawful
command; and
(b) the person giving the command is a
superior officer; and
(c) the member disobeys the command.
Maximum punishment: Imprisonment for 2 years.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the member proves that
he or she neither knew, nor could reasonably be expected to have known, that
the person who gave the command was a superior officer.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
28
Failing to comply with a direction in relation to a ship, aircraft or vehicle
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person is in or near a service
ship, service aircraft or service vehicle; and
(b) the person is given a lawful
direction by, or with the authority of, the person in command of the ship,
aircraft or vehicle; and
(c) the direction:
(i) relates to the sailing
or handling of the ship, the flying or handling of the aircraft or the handling
of the vehicle; or
(ii) affects the safety of
the ship, aircraft or vehicle or of the persons on board the ship, aircraft or
vehicle; and
(d) the first‑mentioned person does
not comply with the direction.
Maximum punishment: Imprisonment for 2 years.
(2) Strict liability applies to paragraph (1)(d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the person proves that
he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
29
Failing to comply with a general order
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) a lawful general order applies to
the person; and
(b) the person does not comply with
the order.
Maximum punishment: Imprisonment for 12 months.
(2) An offence under subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the member proves that
he or she neither knew, nor could reasonably be expected to have known, of the
order.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
30
Assaulting a guard
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person assaults another
person; and
(b) that other person is a member of
the Defence Force or of an allied force; and
(c) that other person is on guard
duty.
Maximum punishment: Imprisonment for 2 years.
(2) A person
who is a defence member or a defence civilian is guilty of an offence if:
(a) the person is engaged on service
in connection with operations against the enemy; and
(b) the person assaults another
person; and
(c) that other person is a member of
the Defence Force or of an allied force; and
(d) that other person is on guard
duty.
Maximum punishment: Imprisonment for 5 years.
31 Obstructing
a police member
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person obstructs another
person; and
(b) that other person:
(i) is a police member
acting in the performance of his or her duty; or
(ii) is lawfully exercising
authority under or on behalf of a service police officer.
Maximum punishment: Imprisonment for 12 months.
(2) A defence member is guilty of an offence
if:
(a) the member is called on to assist
another person; and
(b) that other person:
(i) is a police member
acting in the performance of his or her duty; or
(ii) is lawfully exercising
authority under or on behalf of a service police officer; and
(c) the member refuses to assist that
other person.
Maximum punishment: Imprisonment for 12 months.
(3) In paragraphs (1)(b) and (2)(b),
strict liability applies to the physical element of circumstance, that the
person was a police member, or a person lawfully exercising authority under or
on behalf of a service police officer.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) It is a defence to a charge under this
section if the person proves that he or she neither knew, nor could reasonably
be expected to have known, that the other person was a police member, or a
person lawfully exercising authority under or on behalf of a service police
officer, as the case requires.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
32
Person on guard or on watch
(1) A defence member is guilty of an offence
if the member is on guard duty or on watch and the member:
(a) sleeps at the member’s post or on
watch; or
(b) is not on duty at a post but
sleeps when the member’s duty requires him or her to be awake; or
(c) is intoxicated (see subsection (5));
or
(d) leaves his or her post before
being regularly relieved or otherwise absents himself or herself from a place
where it is the member’s duty to be.
Maximum punishment: Imprisonment for 12 months.
(2) Strict liability applies to paragraphs (1)(a),
(b), (c) and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A defence member is guilty of an offence
if the member:
(a) is engaged on service in
connection with operations against the enemy; and
(b) is on guard duty or on watch; and
(c) engages in conduct that
constitutes an offence against subsection (1).
Maximum punishment: Imprisonment for 5 years.
(4) Strict liability applies to paragraph (3)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) For the purposes of this section, a
person is intoxicated if, and only if, the person’s faculties
are, because of the person being under the influence of intoxicating liquor or
a drug (other than a drug administered by, or taken in accordance with the
directions of, a person lawfully authorised to administer the drug), so
impaired that the person is unfit to be entrusted with the person’s duty or
with any duty that the person may be called on to perform.
(6) It is a defence if a person charged with
an offence under this section proves that he or she had a reasonable excuse for
engaging in the relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (6). See section 13.4 of the Criminal
Code.
33
Assault, insulting or provocative words etc.
A person who is a defence member or a
defence civilian is guilty of an offence if the person is on service land, in a
service ship, service aircraft or service vehicle or in a public place and the
person:
(a) assaults another person; or
(b) creates a disturbance or takes
part in creating or continuing a disturbance; or
(c) within the view or hearing of
another person, engages in conduct that is obscene; or
(d) uses insulting or provocative
words to another person.
Maximum punishment: Imprisonment for 6 months.
34
Assaulting a subordinate
(1) A defence member is guilty of an offence
if:
(a) the member assaults or ill‑treats
a person; and
(b) the person is a member of the
Defence Force who is of subordinate rank to the member.
Maximum punishment: Imprisonment for 2 years.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the member proves that
he or she neither knew, nor could reasonably be expected to have known, that
the other person was a member of the Defence Force of subordinate rank to the
member.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
Division 4—Offences relating to performance of duty
35
Negligence in performance of a duty
(1) A person who is a defence member is
guilty of an offence if:
(a) the person is required, because of
his or her office or appointment, to perform a duty; and
(b) the person engages in conduct; and
(c) that conduct results in a failure
to perform the duty to the required standard.
Penalty: Imprisonment for 3 months.
(2) Negligence applies to paragraph (1)(c).
(3) In this section:
required standard, in relation to performing
a duty, means the standard to which a reasonably capable and careful defence
member of the same training and experience would perform the duty.
36
Dangerous conduct
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct is in or in connection
with:
(i) the operation,
handling, servicing or storage; or
(ii) the giving of
directions with respect to the operation, handling, servicing or storage;
of a ship, aircraft or vehicle
or a weapon, missile, explosive or other dangerous thing or equipment; and
(c) the conduct causes, or is likely
to cause, the death of or grievous bodily harm to another person; and
(d) the first‑mentioned person knows
of the matter mentioned in paragraph (c); and
(e) where the person mentioned in paragraph (c)
is an enemy person—the conduct is not in the execution of the first‑mentioned
person’s duty.
Maximum punishment: Imprisonment for 10 years.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct is in or in connection
with:
(i) the operation,
handling, servicing or storage; or
(ii) the giving of directions
with respect to the operation, handling, servicing or storage;
of a ship, aircraft or vehicle
or a weapon, missile, explosive or other dangerous thing or equipment; and
(c) the conduct causes, or is likely
to cause, the death of or grievous bodily harm to another person; and
(d) the first‑mentioned person is
reckless as to the matter mentioned in paragraph (c); and
(e) where the person mentioned in paragraph (c)
is an enemy person—the conduct is not in the execution of the first‑mentioned
person’s duty.
Maximum punishment: Imprisonment for 5 years.
(3) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct is in or in connection
with:
(i) the operation, handling,
servicing or storage; or
(ii) the giving of
directions with respect to the operation, handling, servicing or storage;
of a ship, aircraft or vehicle
or a weapon, missile, explosive or other dangerous thing or equipment; and
(c) the conduct causes, or is likely
to cause, the death of or grievous bodily harm to another person; and
(d) the first‑mentioned person is
negligent as to the matter mentioned in paragraph (c); and
(e) where the person mentioned in paragraph (c)
is an enemy person—the conduct is not in the execution of the first‑mentioned
person’s duty.
Maximum punishment: Imprisonment for 2 years.
36A
Unauthorised discharge of weapon
A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct causes, or contributes
to, the discharge of a weapon; and
(c) the discharge of the weapon is not
authorised.
Penalty: Imprisonment for 6 months.
36B
Negligent discharge of weapon
A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct causes, or contributes
to, the discharge of a weapon; and
(c) the person is negligent as to that
result.
Penalty: Imprisonment for 6 months.
37
Intoxicated while on duty etc.
(1) A defence member is guilty of an offence
if:
(a) the member is on duty, or reports
or should report for duty; and
(b) the member is intoxicated (see subsection (3)).
Maximum punishment: Imprisonment for 6 months.
(2) An offence under this section is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) For the purposes of this section, a
person is intoxicated if, and only if, the person’s faculties
are, because of the person being under the influence of intoxicating liquor or
a drug (other than a drug administered by, or taken in accordance with the
directions of, a person lawfully authorised to administer the drug), so
impaired that the person is unfit to be entrusted with the person’s duty or
with any duty that the person may be called on to perform.
38
Malingering
(1) A defence member is guilty of an offence
if, with intent to make or keep himself or herself unfit for duty or service,
the member:
(a) injures himself or herself or
causes or permits himself or herself to be injured; or
(b) by act or omission, causes himself
or herself to suffer from a sickness or disability or prolongs or aggravates a
sickness or disability from which he or she is suffering.
Maximum punishment: Imprisonment for 12 months.
(2) A defence member is guilty of an offence
if:
(a) the member represents himself or
herself to be suffering from a physical or mental condition; and
(b) the member makes the
representation with intent to avoid duty or service; and
(c) the representation is false; and
(d) the member knows that the
representation is false.
Maximum punishment: Imprisonment for 12 months.
Division 5—Offences relating to ships, vehicles, aircraft and weapons
39
Loss of, or hazard to, service ship
(1) A defence member is guilty of an offence
if:
(a) the member engages in conduct; and
(b) the conduct causes or allows a
service ship to be lost, stranded or hazarded; and
(c) the member intends that the
conduct will have that result.
Maximum punishment: Imprisonment for 5 years.
(2) A defence member is guilty of an offence
if:
(a) the member engages in conduct; and
(b) the conduct causes or allows a
service ship to be lost, stranded or hazarded; and
(c) the member is reckless as to whether
the conduct will have that result.
Maximum punishment: Imprisonment for 2 years.
(3) A defence member is guilty of an offence
if:
(a) the member engages in conduct; and
(b) the conduct causes or allows a
service ship to be lost, stranded or hazarded; and
(c) the member is negligent as to
whether the conduct will have that result.
Maximum punishment: Imprisonment for 6 months.
40
Driving while intoxicated
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person drives a service
vehicle in any place, whether a public place or not; and
(b) the person is under the influence
of intoxicating liquor or a drug to such an extent as to be incapable of having
proper control of the vehicle.
Maximum punishment: Imprisonment for 12 months.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person drives a vehicle on
service land; and
(b) the person is under the influence
of intoxicating liquor or a drug to such an extent as to be incapable of having
proper control of the vehicle.
Maximum punishment: Imprisonment for 12 months.
(3) An offence under this section is an
offence of absolute liability.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
40A
Dangerous driving
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person drives a service
vehicle in any place, whether a public place or not; and
(b) the person does so at a speed, or
in a manner, dangerous to another person in that place.
Maximum punishment: Imprisonment for 6 months.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person drives a vehicle on
service land; and
(b) the person does so at a speed, or
in a manner, dangerous to another person on that land.
Maximum punishment: Imprisonment for 6 months.
(3) Absolute liability applies to paragraphs (1)(a)
and (2)(a).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(4) Strict liability applies to paragraphs (1)(b)
and (2)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
40C
Driving a service vehicle for unauthorised purpose
(1) A person
who is a defence member or a defence civilian is guilty of an offence if:
(a) the person:
(i) drives a service
vehicle in any place, whether a public place or not; and
(ii) is not authorised to
drive that vehicle; or
(b) the person uses a service vehicle
for an unauthorised purpose.
Maximum punishment: Imprisonment for 3 months.
(2) An offence under this section is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence to a charge under subsection (1)
if the person proves that he or she had a reasonable excuse for the relevant
conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
40D
Driving without due care or attention etc.
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person drives a service
vehicle in any place, whether a public place or not; and
(b) the person does so without due
care and attention or without reasonable consideration for another person in
that place.
Maximum punishment:
(c) if the person is a member of the
Defence Force—a fine of the amount of the member’s pay for 7 days; or
(d) in any other case—a fine of $100.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person drives a vehicle on
service land; and
(b) the person does so without due
care and attention or without reasonable consideration for another person on
that land.
Maximum punishment:
(c) if the person is a member of the
Defence Force—a fine of the amount of the member’s pay for 7 days; or
(d) in any other case—a fine of $100.
(3) An offence under this section is an
offence of absolute liability.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
41 Low
flying
(1) A defence member is guilty of an offence
if:
(a) the member flies a service
aircraft; and
(b) by or in accordance with a lawful
general order, there is a minimum height at which the member is authorised to
fly; and
(c) the height at which the member
flies is less than that minimum height; and
(d) the member is reckless or
negligent as to the matter in paragraph (c).
Maximum punishment: Imprisonment for 12 months.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the member proves that
he or she neither knew, nor could reasonably be expected to have known, of the
general order.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
42
Inaccurate certification in relation to ships, aircraft, vehicles etc.
A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person gives a certificate,
makes or signs a document or makes an entry in a document; and
(b) the certificate, document or entry
relates to any matter affecting the safety or efficiency of a service ship,
service aircraft, service vehicle, service missile or service weapon; and
(c) the person does not take
reasonable care to ensure the accuracy of the certificate, document or entry.
Maximum punishment: Imprisonment for 12 months.
Division 5A—Property offences
Subdivision A—Service property offences
43
Destroying or damaging service property
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the
destruction of, or damage to, service property; and
(c) the person intends that result.
Maximum punishment: Imprisonment for 5 years.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the
destruction of, or damage to, service property; and
(c) the person is reckless as to that
result.
Maximum punishment: Imprisonment for 2 years.
(3) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct results in the
destruction of, or damage to, service property; and
(c) the person is negligent as to that
result.
Maximum punishment: Imprisonment for 6 months.
(4) It is a defence to a charge under subsection (1)
if the person proves that he or she had a reasonable excuse for engaging in the
relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
44
Losing service property
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person loses any property; and
(b) the property is, or forms part of,
service property issued for the person’s use, or entrusted to the person’s
care, in connection with the person’s duties.
Maximum punishment: Imprisonment for 6 months.
(2) Absolute liability applies to paragraph (1)(a).
Note: For absolute liability, see
section 6.2 of the Criminal Code.
(3) It is a defence if the person proves that
he or she took reasonable steps for the safe‑keeping of the lost property.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
45
Unlawful possession of service property
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person is in possession of
service property; and
(b) the person has no lawful authority
for being in possession of the property.
Maximum punishment: Imprisonment for 6 months.
(2) An offence under subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the person proves that
he or she:
(a) was not aware that he or she was
in possession of the property; or
(b) was not aware that the property
was service property; or
(c) had a reasonable excuse for his or
her possession of the property without authority.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
Subdivision B—Possession of property suspected of having been unlawfully
obtained
46
Possession of property suspected of having been unlawfully obtained
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person is in possession of
property; and
(b) the property may reasonably be
suspected of having been unlawfully obtained.
Maximum punishment: Imprisonment for 6 months.
(2) An offence under subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the person proves that
he or she:
(a) was not aware that he or she was
in possession of the property; or
(b) was not aware of the circumstances
by reason of which that property may reasonably be suspected of having been
unlawfully obtained; or
(c) had a reasonable excuse for his or
her possession of the property.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
(4) It is a defence if the person proves that
the property was not unlawfully obtained.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
Subdivision C—Fraudulent conduct
47
When property belongs to a person
(1) For the purposes of this Subdivision,
property belongs to a person if, and only if:
(a) the person has possession or
control of the property; or
(b) the person has a proprietary right
or interest in the property, other than an equitable interest arising only
from:
(i) an agreement to
transfer an interest; or
(ii) an agreement to grant
an interest; or
(iii) a constructive trust.
(2) Subsection (1) has effect subject to
subsections 134.1(9) and (10) of the Criminal Code (which deal with
money transfers).
47A
Dishonesty
For the purposes of this Subdivision, dishonest
means:
(a) dishonest according to the
standards of ordinary people; and
(b) known by the defendant to be
dishonest according to the standards of ordinary people.
Note: In the case of the offence of theft, see also section 47D.
47B
Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against
this Subdivision, the determination of dishonesty is a matter for the trier of
fact.
47C
Theft
(1) A person who is a defence member or a
defence civilian is guilty of an offence if the person dishonestly appropriates
property belonging to another with the intention of permanently depriving the
other of the property.
Maximum punishment: Imprisonment for 5 years.
(2) For the purposes of this Act, an offence
against subsection (1) is to be known as the offence of theft.
47D
Special rules about the meaning of dishonesty
(1) For the purposes of this Subdivision, a
person’s appropriation of property belonging to another is taken not to be
dishonest if the person appropriates the property in the belief that the person
to whom the property belongs cannot be discovered by taking reasonable steps.
(2) However, the rule in subsection (1)
does not apply if the person appropriating the property held it as trustee or
personal representative.
(3) For the purposes of this Subdivision, a
person’s appropriation of property belonging to another may be dishonest even
if the person or another person is willing to pay for the property.
47E
Appropriation of property
(1) For the purposes of this Subdivision, any
assumption of the rights of an owner to ownership, possession or control of
property, without the consent of the person to whom it belongs, amounts to an
appropriation of the property. This includes, in a case where a person has come
by property (innocently or not) without committing theft, any later such
assumption of rights without consent by keeping or dealing with it as owner.
(2) For the purposes of this Subdivision, if
property, or a right or interest in property, is, or purports to be,
transferred or given to a person acting in good faith, a later assumption by
the person of rights which the person had believed himself or herself to be
acquiring does not, because of any defect in the transferor’s title, amount to
an appropriation of the property.
47F
Theft of land or things forming part of land
(1) For the purposes of this Subdivision, a
person cannot commit theft of land, except in the following cases:
(a) the case where the person appropriates
anything forming part of the land by severing it or causing it to be severed;
(b) the case where:
(i) the person is a
trustee or personal representative, or is authorised (by power of attorney, as
liquidator of a company or otherwise) to sell or dispose of land belonging to
another; and
(ii) the person
appropriates the land, or anything forming part of it, by dealing with it in
breach of the confidence reposed in the person.
(2) For the purposes of this section, land
does not include incorporeal hereditaments.
47G
Trust property
(1) For the purposes of this Subdivision, if
property is subject to a trust, the persons to whom the property belongs
include any person who has a right to enforce the trust.
(2) Accordingly, for the purposes of this Subdivision,
an intention to defeat the trust is an intention to deprive any such person of
the property.
47H
Obligation to deal with property in a particular way
For the purposes of this Subdivision,
if:
(a) a person receives property from or
on account of another; and
(b) the person is under a legal
obligation to the other to retain and deal with that property or its proceeds
in a particular way;
the property or proceeds belong (as against the person) to
the other.
47J
Property obtained because of fundamental mistake
(1) For the purposes of this Subdivision, if:
(a) a person gets property by
another’s fundamental mistake; and
(b) the person is under a legal
obligation to make restoration (in whole or in part) of the property or its
proceeds;
then, to the extent of that obligation, the property or
proceeds belong (as against the person) to the person entitled to restoration.
(2) For the purposes of this Subdivision, an
intention not to make restoration is:
(a) an intention to permanently
deprive the person so entitled of the property or proceeds; and
(b) an appropriation of the property
or proceeds without the consent of the person entitled to restoration.
(3) For the purposes of this section, a fundamental
mistake is:
(a) a mistake about the identity of
the person getting the property; or
(b) a mistake as to the essential
nature of the property; or
(c) a mistake about the amount of any
money if the person getting the money is aware of the mistake at the time of
getting the money.
(4) In this section:
money includes anything that is equivalent to
money. For this purpose, cheques, negotiable instruments and electronic funds
transfers are taken to be equivalent to money.
47K
Property of a corporation sole
For the purposes of this Subdivision, property
of a corporation sole belongs to the corporation despite a vacancy in the
corporation.
47L
Property belonging to 2 or more persons
If property belongs to 2 or more
persons, a reference in this Subdivision to the person to whom the property
belongs is a reference to all of those persons.
47M
Intention of permanently depriving a person of property
(1) For the purposes of this Subdivision, if:
(a) a person appropriates property
belonging to another without meaning the other permanently to lose the thing
itself; and
(b) the person’s intention is to treat
the thing as the person’s own to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the
other of it.
(2) For the purposes of this section, a borrowing
or lending of a thing amounts to treating the thing as the borrower’s or
lender’s own to dispose of regardless of another’s rights if, and only if, the
borrowing or lending is for a period and in circumstances making it equivalent
to an outright taking or disposal.
(3) For the purposes of this section, if:
(a) a person has possession or control
(lawfully or not) of property belonging to another; and
(b) the person parts with the property
under a condition as to its return that the person may not be able to perform;
and
(c) the parting is done for purposes
of the person’s own and without the other’s authority;
the parting is taken to amount to treating the property as
the person’s own to dispose of regardless of the other’s rights.
Note: See also paragraph 47J(2)(a).
47N
General deficiency
(1) For the purposes of this Subdivision, a
person may be convicted of theft of all or any part of a general deficiency in
money even though the deficiency is made up of any number of particular sums of
money that were appropriated over a period of time.
(2) For the purposes of this Subdivision, a
person may be convicted of theft of all or any part of a general deficiency in
property other than money even though the deficiency is made up of any number
of particular items of property that were appropriated over a period of time.
47P
Receiving
(1) A person who is a defence member or a
defence civilian is guilty of an offence if the person dishonestly receives
stolen property, knowing or believing the property to be stolen.
Maximum punishment: Imprisonment for 5 years.
(2) For the purposes of this Act, an offence
against subsection (1) is to be known as the offence of receiving.
Stolen property
(3) For the purposes of this section,
property is stolen property if, and only if:
(a) it is original stolen property (as
defined by subsection (5)); or
(b) it is previously received property
(as defined by subsection (6)); or
(c) it is tainted property (as defined
by subsection (8)).
This subsection has effect subject to subsections (4)
and (7).
(4) For the purposes of this section, stolen
property does not include land obtained in the course of an offence
against a law of the Commonwealth, a State or a Territory that involves
obtaining property by deception (however described).
Original stolen property
(5) For the purposes of this section, original
stolen property is:
(a) property, or a part of property,
that:
(i) was appropriated in
the course of theft (whether or not the property, or the part of the property,
is in the state it was in when it was so appropriated); and
(ii) is in the possession
or custody of the person who so appropriated the property; or
(b) property, or a part of property,
that:
(i) was otherwise
unlawfully obtained (whether or not the property, or the part of the property,
is in the state it was in when it was so obtained); and
(ii) is in the possession
or custody of the person who so obtained the property or the person for whom
the property was so obtained.
Previously received property
(6) For the purposes of this section, previously
received property is property that:
(a) was received in the course of an
offence against subsection (1); and
(b) is in the possession or custody of
the person who received the property in the course of that offence.
(7) For the purposes of this section,
property ceases to be original stolen property or previously received property:
(a) after the property is restored:
(i) to the person from
whom it was appropriated or obtained; or
(ii) to other lawful
possession or custody; or
(b) after:
(i) the person from whom
the property was appropriated or obtained ceases to have any right to
restitution in respect of the property; or
(ii) a person claiming
through the person from whom the property was appropriated or obtained ceases
to have any right to restitution in respect of the property.
Tainted property
(8) For the purposes of this section, tainted
property is property that:
(a) is (in whole or in part) the
proceeds of sale of, or property exchanged for:
(i) original stolen
property; or
(ii) previously received
property; and
(b) if subparagraph (a)(i)
applies—is in the possession or custody of:
(i) if the original stolen
property was appropriated in the course of theft (whether in contravention of
this Act or of another law)—the person who so appropriated the original stolen
property; or
(ii) if the original stolen
property was otherwise unlawfully obtained—the person who so obtained the
property or the person for whom the property was so obtained; and
(c) if subparagraph (a)(ii)
applies—is in the possession or custody of the person who received the
previously received property in the course of an offence against subsection (1).
Money transfers
(9) For the purposes of this section, if, as
a result of the application of subsection 134.1(9) or (10) of the Criminal
Code, an amount credited to an account held by a person is property
obtained in the course of an offence against section 134.1 of the Criminal
Code:
(a) while the whole or any part of the
amount remains credited to the account, the property is taken to be in the
possession of the person; and
(b) if the person fails to take such
steps as are reasonable in the circumstances to secure that the credit is
cancelled—the person is taken to have received the property; and
(c) subsection (7) of this
section does not apply to the property.
Note: Subsections 134.1(9) and (10) of the Criminal
Code deal with money transfers.
Receiving property stolen before commencement
(10) For the purposes of this section:
(a) it is to be assumed that section 47C
of this Act had been in force at all times before the commencement of this
section; and
(b) property that was appropriated or
obtained at a time before the commencement of this section does not become original
stolen property unless the property was appropriated or obtained in
circumstances that (apart from paragraph (a)) amounted to an offence
against a law of the Commonwealth, a State or a Territory in force at that
time.
Definition
(11) In this section:
account has the same meaning as in section 133.1
of the Criminal Code.
Subdivision D—Looting
48
Looting
(1) A person who is a defence member or a
defence civilian is guilty of an offence if, in the course of operations
against the enemy, or in the course of operations undertaken by the Defence
Force for the preservation of law and order or otherwise in aid of the civil
authorities, the person:
(a) takes any property that has been
left exposed or unprotected; or
(b) takes any property from the body
of a person who has been killed or from a person who has been wounded, injured
or captured; or
(c) takes any vehicle, equipment or
stores captured from or abandoned by the enemy.
Maximum punishment: Imprisonment for 5 years.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person receives property; and
(b) the property has been taken in
circumstances constituting an offence against subsection (1); and
(c) the person knows of those
circumstances.
Maximum punishment: Imprisonment for 5 years.
(3) It is a defence to a charge under this
section if the person proves that he or she took or received the property for
the service of the Commonwealth or had other reasonable excuse for the relevant
conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
Division 6—Arrest, custody and proceedings before service tribunals
49
Refusing to submit to arrest
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person is ordered into arrest;
and
(b) the order is lawful; and
(c) the person disobeys the order.
Maximum punishment: Imprisonment for 12 months.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the person proves that
he or she neither knew, nor could reasonably be expected to have known, that
the other person was acting lawfully.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
49A
Assault against arresting person
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person assaults another person;
and
(b) the other person:
(i) has a power of arrest
over him or her under section 89 and is arresting, or attempting to
arrest, him or her in the exercise of that power; or
(ii) is carrying out, or
attempting to carry out, an order for his or her arrest under section 89;
or
(iii) is arresting, or
attempting to arrest, him or her under a warrant under section 88 or 90;
or
(iv) has him or her in
custody.
Maximum punishment: Imprisonment for 12 months.
(2) In paragraph (1)(b), strict
liability applies to the physical element of circumstance, that the conduct
mentioned in that paragraph is lawful.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the person proves that
he or she neither knew, nor could reasonably be expected to have known, that
the other person was acting lawfully.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
50
Delaying or denying justice
(1) A defence member is guilty of an offence
if:
(a) a person is in custody on a
charge; and
(b) the member is required by or under
this Act to take action to have the charge dealt with in accordance with this
Act; and
(c) the member does not take the
action.
Maximum punishment: Imprisonment for 12 months.
(2) A defence member is guilty of an offence
if:
(a) a person in custody is entitled to
be released; and
(b) the member is required by or under
this Act to take action to release, or to order the release of, the person; and
(c) the member does not take the
action.
Maximum punishment: Imprisonment for 12 months.
(3) It is a defence to a charge under this
section if the member proves that he or she had a reasonable excuse for not
taking the required action.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
51
Escaping from custody
A person who is a defence member or a
defence civilian is guilty of an offence if the person escapes from custody.
Maximum punishment: Imprisonment for 2 years.
52
Giving false evidence
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person has been sworn or
affirmed as a witness in proceedings before a service tribunal; and
(b) the person makes a false statement
in those proceedings; and
(c) the person knows the statement to
be false or does not believe it to be true; and
(d) the statement is material in those
proceedings.
Maximum punishment: Imprisonment for 5 years.
(2) A person is not liable to be convicted of
an offence under this section only on the evidence of one witness as to the
falsity of the statement alleged to be false.
53
Contempt of service tribunal
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person has been served, as
provided for by the rules of procedure, with a summons to appear, or has been
ordered to appear, as a witness before a service tribunal; and
(b) the person:
(i) fails to appear as
required by the summons or order; or
(ii) fails to appear and
report himself or herself from day to day and has not been excused or released
by the tribunal from further attendance.
Maximum punishment: Imprisonment for 6 months.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if the person is appearing as a
witness before a service tribunal and the person:
(a) refuses or fails to take an oath
or make an affirmation when lawfully required to do so; or
(b) refuses or fails to answer a
question that the person is lawfully required to answer by the tribunal; or
(c) refuses or fails to produce a
document that the person was required to produce by a summons served on the
person, as provided for by the rules of procedure, or by an order.
Maximum punishment: Imprisonment for 6 months.
(3) It is a defence to a charge under subsection (1)
or (2) if the person proves that he or she had a reasonable excuse for the
relevant conduct.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
(4) A person who is a defence member or a
defence civilian is guilty of an offence if the person:
(a) insults a member of a court
martial, a judge advocate, a Defence Force magistrate or a summary authority in
or in relation to the exercise of his or her powers or functions as such a
member, judge advocate, magistrate or authority; or
(b) interrupts the proceedings of a
service tribunal; or
(c) creates a disturbance or takes
part in creating or continuing a disturbance in or near a place where a service
tribunal is sitting; or
(d) engages in any other conduct that
would, if a service tribunal were a court of record, constitute a contempt of
that court.
Maximum punishment: Imprisonment for 6 months.
(5) If an offence under subsection (4)
is committed by a person in relation to a service tribunal that is a court
martial or a Defence Force magistrate, during proceedings before the tribunal,
the tribunal, if it considers it expedient to do so, may then and there order
that the person be taken into custody and call on the person to show cause why
the person should not be convicted of the offence.
(6) If a service tribunal convicts a person
under subsection (5), the maximum punishment for the offence is detention
for 21 days.
(7) An offence under this section is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
54
Unlawful release etc. of person in custody
(1) A defence member is guilty of an offence
if:
(a) a person has been delivered into a
member’s custody or the member has a duty to guard a person; and
(b) by act or omission, the member
intentionally allows the person to escape.
Maximum punishment: Imprisonment for 2 years.
(2) A defence member is guilty of an offence
if:
(a) a person has been delivered into a
member’s custody or the member has a duty to guard a person; and
(b) the member releases the person;
and
(c) the member has no authority to
release the person.
Maximum punishment: Imprisonment for 2 years.
(3) A person who is a defence member or a
defence civilian is guilty of an offence if the person intentionally
facilitates the escape of a person from custody or a place of confinement.
Maximum
punishment: Imprisonment for 12 months.
(4) A person who is a defence member or a
defence civilian is guilty of an offence if, with intent to facilitate an
escape from a place of confinement of another person, the first‑mentioned
person conveys anything into that place.
Maximum
punishment: Imprisonment for 12 months.
Division 6A—Custodial offences
54A
Custodial offences
(1) A detainee who:
(a) makes any unnecessary noise;
(b) commits a nuisance;
(c) is idle, careless or negligent at
work;
(d) without lawful authority,
converses or otherwise communicates with another person (whether or not a
detainee);
(e) without lawful authority, gives
any thing to, or receives any thing from, another person (whether or not a
detainee);
(f) without lawful authority, has in
his or her possession any thing; or
(g) without lawful authority, enters
or leaves his or her cell;
is guilty of an offence.
(2) A detainee who, while on leave of absence
from a detention centre, refuses or fails to comply with a condition of the
grant of the leave of absence is guilty of an offence.
(2A) An offence under this section is an offence
of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if a person charged with
a custodial offence proves that he or she had a reasonable excuse for engaging
in the behaviour to which the charge relates.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
(4) The maximum punishment for a custodial
offence is segregated confinement for 10 days.
(5) Subsection (4) has effect
notwithstanding anything contained in section 64.
(6) If a person (other than a detainee)
commits an offence against subsection (1) or (2) of this section by virtue
of section 11.2 or 11.2A of the Criminal Code, that section has
effect as if the maximum punishment for an offence against subsection (1)
or (2) of this section were imprisonment for 10 days.
Division 7—Miscellaneous offences
55
Falsifying service documents
(1) A person who is a defence member or a
defence civilian is guilty of an offence if, with intent to make a gain for the
person or another person or with intent to deceive, or to cause loss, damage or
injury to, another person:
(a) the person makes or signs a
service document that is false in a material particular; or
(b) the person makes in a service
document an entry that is false in a material particular; or
(c) the person alters a service
document so that the document is false in a material particular; or
(d) the person engages in conduct that
results in the suppression of, the defacing of, the making away with or the
destruction of a service document, or a part of a service document, that it is
the person’s duty to preserve or produce; or
(e) the person does not make an entry
in a service document that it is the person’s duty to make so that the document
is rendered false in a material particular.
Maximum punishment: Imprisonment for 2 years.
(2) In subsection (1):
service document means a document belonging
or pertaining to, or connected with, the Defence Force.
56
False statement in relation to application for a benefit
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person makes a statement,
(whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or
misleading; or
(ii) omits any matter or
thing without which the statement is misleading; and
(c) the person knows of the matter
mentioned in paragraph (b); and
(d) the statement is made in, in
connection with, or in support of, an application for:
(i) a grant, payment or
allotment of money or an allowance; or
(ii) leave of absence; or
(iii) any other benefit or
advantage;
for the person or another
person; and
(e) the application arises out of, or
is based on, membership of, or service in or in connection with, the Defence
Force.
Maximum punishment: Imprisonment for 12 months.
(2) Subsection (1) does not apply as a
result of subparagraph (1)(b)(i) if the statement is not false or
misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) does not apply as a
result of subparagraph (1)(b)(ii) if the statement did not omit any matter
or thing without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(4) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person makes a statement
(whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or
misleading; or
(ii) omits any matter or
thing without which the statement is misleading; and
(c) the person is reckless as to the
matter mentioned in paragraph (b); and
(d) the statement is made in, in
connection with, or in support of, an application for:
(i) a grant, payment or
allotment of money or an allowance; or
(ii) leave of absence; or
(iii) any other benefit or
advantage;
for the person or another
person; and
(e) the application arises out of, or
is based on, membership of, or service in or in connection with, the Defence
Force.
Maximum punishment: Imprisonment for 6 months.
(5) Subsection (4) does not apply as a
result of subparagraph (4)(b)(i) if the statement is not false or
misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5). See subsection 13.3(3) of the Criminal
Code.
(6) Subsection (4) does not apply as a
result of subparagraph (4)(b)(ii) if the statement did not omit any matter
or thing without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal
Code.
(7) In this section:
benefit includes any advantage and is not
limited to property.
57
False statement in relation to appointment or enlistment
(1) A person is guilty of an offence if, in
or in connection with an application for the person’s appointment to or
enlistment in the Defence Force:
(a) the person:
(i) is required to answer
a question set out in a document required to be completed in relation to the
person’s appointment or enlistment; and
(ii) with intent to
deceive, makes a false answer to the question; or
(b) with intent to deceive, the person
gives any false information or document in relation to the person’s appointment
or enlistment; or
(c) with intent to deceive, the person
does not disclose, if and when lawfully required to do so, particulars of any
prior service in the Defence Force;
and as a result of that application, the person is
appointed to or enlisted in the Defence Force.
Maximum punishment: Imprisonment for 3 months.
(2) A defence member is guilty of an offence
if:
(a) the member:
(i) is required to answer
a question set out in a document required to be completed in relation to the
person’s appointment or enlistment; and
(ii) with intent to
deceive, makes a false answer to the question; or
(b) with intent to deceive, the member
gives any false information or document in relation to the person’s appointment
or enlistment; or
(c) with intent to deceive, the member
does not disclose, if and when lawfully required to do so, particulars of any
prior service in the Defence Force.
Maximum punishment: Imprisonment for 3 months.
58
Unauthorised disclosure of information
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person discloses information;
and
(b) there is no lawful authority for
the disclosure; and
(c) the disclosure is likely to be
prejudicial to the security or defence of Australia.
Maximum punishment: Imprisonment for 2 years.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence if the person proves that
he or she neither knew, nor could reasonably be expected to have known, that
the disclosure of the information was likely to be prejudicial to the security
or defence of Australia.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
59 Dealing
in or possession of prohibited drugs
Selling, dealing or trafficking in a prohibited
drug—defence member or defence civilian outside Australia
(1) A person who is a defence member or a
defence civilian is guilty of an offence if the person:
(a) is outside Australia; and
(b) sells, or deals or traffics in, a
prohibited drug; and
(c) knows the nature of the drug.
Maximum punishment: Imprisonment for 10 years.
(2) It is a defence to a charge under subsection (1)
if the person proves that he or she had lawful authority for the conduct
mentioned in paragraph (1)(b).
Note: The defendant bears a legal burden in relation
to the matter in subsection (2). See section 13.4 of the Criminal
Code.
Possessing a prohibited drug—defence member or defence
civilian outside Australia
(3) A person who is a defence member or a
defence civilian is guilty of an offence if the person:
(a) is outside Australia; and
(b) is in possession of a prohibited
drug; and
(c) knows that he or she possesses that
drug and knows its nature.
Maximum punishment:
(d) if the offence is committed in
relation to:
(i) a prohibited drug
other than cannabis; or
(ii) a quantity of cannabis
exceeding the prescribed quantity of that drug;
imprisonment for 2 years; or
(e) if the offence is committed in
relation to a quantity of cannabis not exceeding the prescribed quantity of
that drug and the convicted person is a defence member:
(i) for a first offence—a
fine of the amount of the member’s pay for 14 days; or
(ii) for a second or later
offence—dismissal from the Defence Force; or
(f) if the offence is committed in
relation to a quantity of cannabis not exceeding the prescribed quantity of
that drug and the convicted person is a defence civilian—a fine of $100.
(4) It is a defence to a charge under subsection (3)
if the person proves that he or she had lawful authority for possessing the prohibited
drug.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
Administering a prohibited drug—defence member or
defence civilian outside Australia
(5) A person who is a defence member or a
defence civilian is guilty of an offence if the person:
(a) is outside Australia; and
(b) administers, or causes or permits
to be administered, to himself or herself, a prohibited drug.
Maximum punishment:
(c) if the offence is committed in
relation to a prohibited drug other than cannabis—imprisonment for 2 years; or
(d) if the offence is committed in
relation to cannabis and the convicted person is a defence member:
(i) for a first offence—a
fine of the amount of the member’s pay for 14 days; or
(ii) for a second or later
offence—dismissal from the Defence Force; or
(e) if the offence is committed in
relation to cannabis and the convicted person is a defence civilian—a fine of
$100.
(5A) It is a defence to a charge under
subsection (5) if the person proves that he or she had lawful authority
for the conduct mentioned in paragraph (5)(b).
Administering a prohibited drug—defence member or
defence civilian in Australia
(6) A person who is a defence member or a
defence civilian is guilty of an offence if the person:
(a) is in Australia; and
(b) administers, or causes or permits
to be administered, to himself or herself a prohibited drug.
Maximum punishment:
(c) if the offence is committed in
relation to a prohibited drug other than cannabis and the convicted person is a
defence member—imprisonment for 2 years; or
(d) if the offence is committed in
relation to cannabis and the convicted person is a defence member:
(i) for a first offence—a
fine of the amount of the member’s pay for 14 days; or
(ii) for a second or later
offence—dismissal from the Defence Force; or
(e) if the convicted person is a
defence civilian—a fine of $100.
(6A) It is a defence to a charge under
subsection (6) if the person proves that he or she had lawful authority
for the conduct mentioned in paragraph (6)(b).
Possessing non‑trafficable quantity of a prohibited
drug—defence member in Australia
(7) A defence member is guilty of an offence
if the member:
(a) is in Australia; and
(b) is in possession of a quantity of
a prohibited drug not exceeding the prescribed quantity of that drug; and
(c) knows that he or she possesses
that drug and knows its nature.
Maximum punishment:
(d) if the offence is committed in
relation to a prohibited drug other than cannabis—imprisonment for 2 years; or
(e) if the offence is committed in
relation to cannabis:
(i) for a first offence—a
fine of the amount of the member’s pay for 14 days; or
(ii) for a second or later
offence—dismissal from the Defence Force.
(8) It is a defence to a charge under subsection (7)
if the member proves that he or she had lawful authority for possessing the prohibited
drug.
Note: The defendant bears a legal burden in relation
to the matter in subsection (8). See section 13.4 of the Criminal
Code.
Definitions
(9) In this section:
cannabis means:
(a) a living cannabis plant; or
(b) cannabis resin; or
(c) any other form of cannabis
(including flowering or fruiting tops, leaves, seeds or stalks, but not
including cannabis fibre).
controlled drug has the same meaning as in
Part 9.1 of the Criminal Code.
controlled plant has the same meaning as in
Part 9.1 of the Criminal Code.
prescribed quantity, in relation to a
prohibited drug, means:
(a) for a narcotic substance that is a
controlled drug or a controlled plant in relation to which there is a
trafficable quantity specified under the Criminal Code—the trafficable
quantity so specified for that substance; or
(b) for any other prohibited drug—50
grams.
prohibited drug means:
(a) a narcotic substance (as defined
by subsection 4(1) of the Customs Act 1901); or
(b) an anabolic steroid (within the
meaning of Part 8 of the Crimes Act 1900 of the Australian Capital
Territory).
60
Prejudicial conduct
(1) A defence member is guilty of an offence
if the member does an act that is likely to prejudice the discipline of, or
bring discredit on, the Defence Force.
Maximum punishment: Imprisonment for 3 months.
(1A) A defence member is guilty of an offence
if:
(a) the member omits to perform an
act; and
(b) the omission is likely to
prejudice the discipline of, or bring discredit on, the Defence Force.
Maximum punishment: Imprisonment for 3 months.
(2) An offence against subsection (1) or
(1A) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence to a charge under
subsection (1) if the member proves that he or she had a reasonable excuse
for the relevant act.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
(4) It is a defence to a charge under
subsection (1A) if the member proves that he or she had a reasonable
excuse for omitting to perform the relevant act.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
Division 8—Offences based on Territory offences
61
Offences based on Territory offences
(1) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct in
the Jervis Bay Territory; and
(b) engaging in that conduct is a
Territory offence.
(2) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct in a
public place outside the Jervis Bay Territory; and
(b) engaging in that conduct would be
a Territory offence, if it took place in a public place in the Jervis Bay Territory.
(3) A person who is a defence member or a
defence civilian is guilty of an offence if:
(a) the person engages in conduct
outside the Jervis Bay Territory (whether or not in a public place); and
(b) engaging in that conduct would be
a Territory offence, if it took place in the Jervis Bay Territory (whether or
not in a public place).
(4) The maximum punishment for an offence
against this section is:
(a) if the relevant Territory offence
is punishable by a fixed punishment—that fixed punishment; or
(b) otherwise—a punishment that is not
more severe than the maximum punishment for the relevant Territory offence.
(5) Strict liability applies to paragraphs (1)(b),
(2)(b) and (3)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) To avoid doubt, section 10 of this
Act does not have the effect that Chapter 2 of the Criminal Code
applies to the law in force in Jervis Bay, for the purpose of determining
whether an offence against this section has been committed.
Note: Section 10
of this Act applies Chapter 2 of the Criminal Code to the content
of this section, but not to the content of the law in force in Jervis Bay. To determine, for the purposes of this section, whether Chapter 2 of the
Code applies to Jervis Bay law, it is necessary to consult Jervis Bay law.
Division 9—Miscellaneous
62
Commanding or ordering a service offence to be committed
(1) A defence member is guilty of an offence
if:
(a) the member commands or orders a
person to engage in conduct; and
(b) the conduct would constitute the
commission of a service offence.
Maximum punishment:
(c) if the last‑mentioned offence is
punishable by a fixed punishment—that fixed punishment; or
(d) otherwise—a punishment that is not
more severe than the maximum punishment for the last‑mentioned offence.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
63
Consent for proceedings for certain offences
(1) Except with the consent of the Director
of Public Prosecutions, proceedings under this Act shall not be instituted for:
(a) an offence against section 61
that is alleged to have been committed in Australia and in relation to which
the relevant Territory offence is:
(i) treason, murder,
manslaughter or bigamy;
(ia) an offence against section 51,
52, 53, 54 or 55 of the Crimes Act 1900 of the Australian Capital
Territory, in its application to the Jervis Bay Territory, as amended or
affected by Ordinances in force in that Territory;
(ii) an offence in respect
of which proceedings could not be brought in the Jervis Bay Territory without
the consent of a Minister, the Director of Public Prosecutions or a person
authorised by the Director of Public Prosecutions to give consent; or
(iii) an offence prescribed
for the purposes of this section; or
(b) an offence against section 61
that is based on an ancillary Territory offence in relation to a Territory
offence referred to in paragraph (a).
(2) Notwithstanding that a consent has not
been given as required by this section to the institution of proceedings
against a person for an offence:
(a) a warrant for the arrest of the
person for the offence may be issued in accordance with Part V;
(b) the person may be arrested for the
offence, and kept in custody, or otherwise dealt with, in accordance with Part V;
and
(c) the person may be charged with the
offence in accordance with Part V;
but no further steps in the proceedings shall be taken
until such consent is obtained.
64
Punishment for ancillary offences
Where a service offence:
(a) is an ancillary offence in
relation to another offence (other than an offence against section 61);
and
(b) is punishable otherwise than by a
fixed punishment;
then, notwithstanding anything contained in the Crimes
Act 1914, the punishment for that service offence is a punishment not more
severe than the maximum punishment for that offence.
65
Maximum punishment for old system offence
The maximum punishment for an old system
offence is the maximum punishment (in this section referred to as the old
system punishment) provided for that offence by previous service law
or, if the old system punishment is specified in column 1 of Schedule 1,
the punishment that is specified in column 2 of that Schedule opposite to the
reference to the old system punishment.
Part IV—Punishments and orders
66
Punishment or order to be in respect of a particular conviction
(1) Each punishment imposed, and each order
made, by a service tribunal shall be imposed or made, as the case may be, in
respect of a particular conviction and no other conviction.
(2) In this section, order
means a restitution order, a reparation order or an order under subsection
75(1).
67
Authorised punishments
(1) A court martial or a Defence Force
magistrate must not impose a punishment in respect of a conviction except in
accordance with this Part and Schedule 2.
(2) A summary authority shall not impose a
punishment in respect of a conviction except in accordance with this Part,
Schedule 3 and Schedule 3A.
68
Scale of punishments
(1) Subject to sections 68A and 68C, the
only punishments that may be imposed by a service tribunal on a convicted
person are, in decreasing order of severity, as follows:
(a) imprisonment for life;
(b) imprisonment for a specific
period;
(c) dismissal from the Defence Force;
(d) detention for a period not
exceeding 2 years;
(e) reduction in rank;
(f) forfeiture of service for the
purposes of promotion;
(g) forfeiture of seniority;
(h) fine, being a fine not exceeding:
(i) where the convicted
person is a member of the Defence Force—the amount of his or her pay for 28
days; or
(ii) in any other
case—$500;
(j) severe reprimand;
(k) restriction of privileges for a
period not exceeding 14 days;
(m) stoppage of leave for a period not
exceeding 21 days;
(n) extra duties for a period not
exceeding 7 days;
(na) extra drill for not more than 2
sessions of 30 minutes each per day for a period not exceeding 3 days;
(p) reprimand.
(2) The Chief of the Defence Force or a
service chief may, by legislative instrument, make rules with respect to the
consequences, in relation to a member of the Defence Force, that are to flow
from the imposition by a service tribunal on that member of any of the
following punishments:
(a) reduction in rank;
(b) forfeiture of service for the
purposes of promotion;
(c) forfeiture of seniority;
(d) restriction of privileges for a
period;
(e) stoppage of leave for a period;
(f) extra duties for a period;
(g) extra drill for a period.
(3) The commanding officer of a convicted
person subject to a punishment specified in paragraph (2)(d) or (f) may
moderate the consequences of that punishment in relation to the convicted
person in such manner as the commanding officer considers appropriate having
regard to the particular circumstances of the case and to any directions, in
writing, of the Chief of the Defence Force or a service chief.
(4) Notwithstanding that a convicted person
is subject to a punishment of stoppage of leave, the commanding officer of the
person may, if he or she is satisfied that it is appropriate to do so, grant
leave of absence to the person.
68A
Scale of custodial punishments
(1) The only punishments that may be imposed
by a service tribunal on a person convicted of a custodial offence are, in
decreasing order of severity, as follows:
(a) segregated confinement for a
period not exceeding 10 days;
(b) confinement to cell for a period
not exceeding 10 days;
(c) extra drill for a period not
exceeding 6 days;
(d) restriction of custodial
privileges for a period not exceeding 14 days.
(2) The Chief of the Defence Force or a
service chief may, by legislative instrument, make rules with respect to the
consequences, in relation to a detainee, that are to flow from the imposition
by a service tribunal on that detainee of any custodial punishment.
(3) The officer in charge of a detention
centre in which a detainee subject to a custodial punishment is undergoing a
punishment of detention may moderate the consequences of the custodial
punishment in relation to the detainee in such manner as the officer thinks
appropriate having regard to the particular circumstances of the case and to
any directions, in writing, of the Chief of the Defence Force or a service
chief.
68C
Custodial punishments may be imposed for certain non‑custodial service offences
(1) Subject to subsection 71(4), where a
person is convicted of a service offence to which this subsection applies, a
service tribunal may, in lieu of imposing a punishment of a kind referred to in
subsection 68(1), impose a custodial punishment on the person in respect of the
conviction.
(2) Subsection (1) applies to a service
offence that:
(a) is:
(i) an offence against
section 23, 25, 26, 27, 29, 33, 43, 51 or 60; or
(ii) an offence that is an
ancillary offence in relation to an offence referred to in subparagraph (i);
and
(b) was committed by a person at a
time when the person was a detainee.
69
Punishment not to be more severe than maximum punishment
The punishment that may be imposed by a
service tribunal upon a convicted person in respect of a service offence is a
punishment that is not more severe than the maximum punishment for that
offence.
70
Sentencing principles
(1) A service tribunal, in determining what
action under this Part should be taken in relation to a convicted person, shall
have regard to:
(a) the principles of sentencing
applied by the civil courts, from time to time; and
(b) the need to maintain discipline in
the Defence Force.
(2) In so far as the principles referred to
in paragraph (1)(a) require the taking into account of any mitigating or
aggravating circumstances, the circumstances to be so taken into account in
relation to a convicted person shall include:
(a) the person’s rank, age and
maturity;
(b) the person’s physical and mental condition;
(c) the person’s personal history;
(d) the absence or existence in the
person’s case of previous convictions for service offences, civil court
offences and overseas offences;
(e) if the service offence involves a
victim, the person’s relationship with the victim;
(f) the person’s behaviour before,
during and after the commission of the service offence; and
(g) any consequential effects of the
person’s conviction or proposed punishment.
(3) Where a service tribunal has, in
accordance with subsection (1), determined to impose a fine on a convicted
person, the tribunal, in fixing the amount of the fine, shall have regard to
the following additional factors:
(a) the means of the person; and
(b) the effect of the fine on the
person’s ability to meet any reparation orders that the tribunal may wish to
make.
(4) For the purposes of subsection (1)
the principles referred to in paragraph (a) of that subsection shall be
deemed to include:
(a) the principle that the period (if
any) that a convicted person has spent in custody before action is taken under
this Part by a service tribunal in relation to the person should be taken into
account by the service tribunal in determining the length of the period of any
punishment of imprisonment or detention that it imposes on the person; and
(b) the principle that, where the
offence of which the convicted person is convicted was an offence against
section 11.1 of the Criminal Code and the attempt that constitutes
the offence was voluntarily abandoned, the fact and the circumstances of that
abandonment should be taken into account in mitigation of any punishment to be
imposed in respect of the offence.
(5) In the application of paragraph (2)(d)
to a convicted person who is not a detainee, a conviction of the person by a
summary authority that resulted in the imposition of a custodial punishment on
the person shall be disregarded.
71
Restrictions on power to impose punishments
(1) A service tribunal shall not impose a
punishment of imprisonment on a member of the Defence Force whom it has
convicted of a service offence unless the tribunal also imposes on that member
in respect of that conviction the punishment of dismissal from the Defence
Force.
(1A) A service tribunal must not impose on a non‑commissioned
officer who has been convicted of a service offence a punishment of detention
unless the tribunal also imposes the punishment of reduction in rank to a rank
below non‑commissioned rank.
(2) A service tribunal shall not impose a
punishment of detention on a member of the Defence Force who has been convicted
of a service offence if the member, at the time of conviction, had not attained
the age of 18 years.
(3) A service tribunal shall not impose a
punishment of detention on a member of the Defence Force who has been convicted
of a service offence if it also imposes the punishment of dismissal from the
Defence Force in respect of that conviction or another conviction.
(4) A service tribunal shall not impose a
custodial punishment on a person who is not a detainee.
(5) A custodial punishment imposed on a
detainee shall not extend beyond the period during which the detainee is
undergoing a punishment of detention in a detention centre.
72
Application of certain provisions of Crimes Act 1914
(1) Sections 16, 19A to 19AZD (other
than section 19AH), 20, 20A and 20AA of the Crimes Act 1914 apply
to a service tribunal that imposes a punishment of imprisonment for a specific
period on a convicted person as if:
(a) the service tribunal were a court
exercising jurisdiction in or in relation to the Jervis Bay Territory; and
(b) the person were convicted in that
Territory.
(2) The fixing of a non‑parole period by a
service tribunal under the provisions of the Crimes Act 1914 as applied
by virtue of subsection (1) to the service tribunal shall be taken, for
the purposes of this Act, to be an order fixing that non‑parole period made by
the service tribunal under this Part.
73
Imposition of fines
(1) A service tribunal that imposes a
punishment of a fine shall specify in the decision imposing the punishment the
amount of money that is the amount of the fine.
(2) Where a service tribunal convicts a
person of 2 or more service offences and imposes 2 or more punishments, being
or including fines, the sum of the amounts of those fines shall not exceed the
amount of the most severe fine that the tribunal could impose on the person for
any one of the service offences of which the person has been so convicted.
74
Concurrent or cumulative punishments
(1) In this section, prescribed
punishment means a punishment of any of the following kinds:
(a) imprisonment for a specific
period;
(b) detention;
(c) restriction of privileges;
(d) stoppage of leave;
(e) extra duties;
(f) segregated confinement;
(g) confinement to cell;
(h) extra drill;
(j) restriction of custodial
privileges.
(2) Subject to this section, where:
(a) a service tribunal convicts a
person of 2 or more service offences and imposes 2 or more prescribed
punishments;
(b) a service tribunal convicts of a
service offence a person who is already subject to a prescribed punishment (not
being a punishment that is wholly suspended) and, on that conviction, imposes
another prescribed punishment;
(c) a service tribunal convicts of a
service offence a person who is already subject to a prescribed punishment
(being a punishment that is suspended in whole or in part) and, on that
conviction, revokes that suspension and also imposes another prescribed
punishment; or
(d) a service tribunal convicts a
person of a service offence that was committed during the period to which an
undertaking given by the person in accordance with subsection 75(2) relates
and, on that conviction, imposes:
(i) a prescribed
punishment for the service offence to which the conviction relates; and
(ii) a prescribed
punishment for the service offence in relation to which the undertaking was
given;
the punishments so imposed (including, where applicable,
the punishment referred to in paragraph (c) the suspension of which is
revoked) shall be concurrent.
(3) Where a service tribunal imposes a
punishment of imprisonment for a specific period for a service offence and also
a punishment of imprisonment for life for another service offence, the
punishments shall be concurrent.
(4) Subject to subsection (5), where:
(a) a service tribunal convicts a
person of 2 or more service offences and imposes 2 or more prescribed
punishments that are of the same kind;
(b) a service tribunal convicts of a
service offence a person who is already subject to a prescribed punishment (not
being a punishment that is wholly suspended) and, on that conviction, imposes
another prescribed punishment that is of the same kind as the prescribed
punishment to which the person is already subject;
(c) a service tribunal convicts of a
service offence a person who is already subject to a prescribed punishment
(being a punishment that is suspended in whole or in part) and, on that
conviction, revokes that suspension and also imposes another prescribed
punishment that is of the same kind as the suspended punishment; or
(d) a service tribunal convicts a
person of a service offence that was committed during the period to which an
undertaking given by the person in accordance with subsection 75(2) relates
and, on that conviction, imposes:
(i) a prescribed
punishment for the service offence to which the conviction relates; and
(ii) a prescribed
punishment that is of the same kind as the prescribed punishment referred to in
subparagraph (i) for the service offence in relation to which the undertaking
was given;
the tribunal may order that all or any of the punishments
so imposed (including, where applicable, the punishment referred to in paragraph (c)
the suspension of which is revoked) shall be cumulative.
(4A) Subject to this section, where:
(a) a service tribunal convicts of a
service offence a person who is already subject to a prescribed punishment
(being a punishment that is suspended in whole or in part) and, on that
conviction:
(i) recommends to a competent
reviewing authority, under subsection 80(3), that the suspension be revoked by
the reviewing authority; and
(ii) imposes another
prescribed punishment; and
(b) the reviewing authority revokes
the suspension under subsection 80(4);
the punishments so imposed (including the punishment the
suspension of which is revoked) shall be concurrent.
(4B) Subject to subsection (5), where:
(a) a service tribunal convicts of a
service offence a person who is already subject to a prescribed punishment
(being a punishment that is suspended in whole or in part) and, on that
conviction:
(i) recommends to a competent
reviewing authority, under subsection 80(3), that the suspension be revoked by
the reviewing authority;
(ii) imposes another
prescribed punishment that is of the same kind as the suspended punishment; and
(iii) recommends to the
reviewing authority that the punishments be made cumulative; and
(b) the reviewing authority revokes
the suspension under subsection 80(4);
the reviewing authority may order that the punishments so
imposed (including the punishment the suspension of which is revoked) shall be
cumulative.
(5) A service tribunal or a reviewing
authority that has revoked a suspension of a punishment on the recommendation
of a service tribunal shall not order that prescribed punishments shall be
cumulative if the effect of the order would be that the person convicted would
be subject to punishment for a total period that exceeds the period of
operation of the most severe punishment (being a punishment of the same kind as
the first‑mentioned punishments) that the tribunal could impose on the person
for the service offence, or any one of the service offences, of which the
person has been convicted by the tribunal.
(5A) A reviewing authority that has revoked the
suspension of the whole or a part of a punishment under subsection 80(4), on
the recommendation of a service tribunal, must not order that prescribed
punishments are to be cumulative if the effect of the order would be that the
person convicted would be subject to punishment for a total period that exceeds
the period of operation of the most severe punishment (being a punishment of
the same kind as the first‑mentioned punishments) that the service tribunal
could impose on the person for the service offence, or any one of the service
offences, of which the person has been convicted by the service tribunal.
(6) Where:
(a) a person is convicted by a service
tribunal of a service offence committed by the person while serving a
punishment of detention; and
(b) the
service tribunal imposes on the person for that service offence a punishment of
detention;
that last‑mentioned punishment shall commence at the
expiration of the period of detention that the person was serving when the
offence was committed.
75
Conviction without punishment
(1) Instead of imposing a punishment on a
convicted person, a service tribunal may make an order that the conviction be
recorded as a conviction without punishment.
(2) As a condition of making an order under subsection (1),
a service tribunal may require the convicted person to give an undertaking that
he or she will be of good behaviour for a period of 12 months.
76
Breach of undertaking to be of good behaviour
(1) Where:
(a) a person has, in accordance with
subsection 75(2), given an undertaking that he or she will be of good behaviour
for a period of 12 months; and
(b) a service tribunal convicts the
person of a service offence that was committed during that period;
the tribunal may, subject to subsection (3), if it is
satisfied that, by reason of the person’s commission of that offence, the
person has failed to be of good behaviour, take action under this Part in
relation to the person for the service offence in relation to which that
undertaking was given.
(2) A service tribunal, before taking action
under subsection (1), shall hear evidence relevant to the determination of
what action should be taken.
(3) The only action that a service tribunal
may take under this Part, in relation to a person for a service offence in
relation to which an undertaking was given under subsection 75(2), is action
that could have been taken under this Part in relation to the person by the
service tribunal that convicted the person of the service offence.
77
Taking other offences into consideration
(1) Where a convicted person requests a court
martial or a Defence Force magistrate to take into consideration, for the
purposes of this Part, any other service offence:
(a) that is similar to the service
offence of which the person has been convicted; and
(b) that the tribunal has jurisdiction
to try; and
(c) that the person admits having
committed;
the court martial or the Defence Force magistrate, with
the consent of the prosecution, may take the other service offence into
consideration.
(2) A court martial or a Defence Force
magistrate shall not impose a separate punishment or make a separate order
under subsection 75(1) in respect of a service offence that it has taken into
consideration under subsection (1).
(3) Where:
(a) a court martial or a Defence Force
magistrate does not take a service offence into consideration under
subsection (1) by reason of:
(i) the withholding of
consent by the prosecution; or
(ii) the rejection of the
convicted person’s request; or
(b) a reviewing authority, under
subsection 162(2), annuls the taking into consideration by a court martial or a
Defence Force magistrate of a service offence;
an admission under and for the purposes of
paragraph (1)(c) in relation to that service offence is not admissible as
evidence in:
(c) any other proceeding before a
service tribunal in respect of that service offence; or
(d) any proceeding in a civil court in
respect of a civil court offence that is substantially the same offence as that
service offence.
78
Suspension of detention
(1) Subject to this section, a service
tribunal that imposes a punishment of detention may make an order suspending the
whole or a part of that punishment.
(2) Where a service tribunal imposes on a
person 2 or more punishments of detention in respect of 2 or more service
offences, the service tribunal shall not make an order suspending the whole or
a part of any of those punishments unless it also makes an order suspending the
whole or a part of the other punishment or the other punishments.
(3) Where a service tribunal makes an order
suspending the whole or a part of a punishment of detention, the punishment, or
such part of the punishment as is suspended, does not begin, and shall not be
put into execution, while the suspension remains in force.
79
Suspension of fines
(1) A service tribunal that imposes on a
member of the Defence Force a punishment of a fine may make an order suspending
the whole or a part of that punishment.
(2) A service tribunal that imposes on a
person who is not a member of the Defence Force a punishment of a fine of an
amount not less than $100 may make an order suspending the whole or a part
of that punishment.
(3) Where a service tribunal makes an order
suspending a fine in whole or in part, the fine, or such part of the fine as is
suspended, does not take effect while the suspension remains in force.
80
Revocation of suspension of punishment
(1) Subject to subsection (2), where a
person convicted of a service offence by a service tribunal is already subject
to a punishment that is suspended, the tribunal may revoke the suspension and,
in that event, the punishment that was suspended shall, subject to subsections
172(1) and (2), take effect as if it had been imposed at the time of the
revocation.
(2) A service tribunal shall not revoke the
suspension of a punishment if the tribunal would not have had power to impose
the punishment if it had convicted the person of the service offence for which
the punishment was imposed.
(3) Where, by virtue of subsection (2),
a service tribunal is not empowered to revoke a suspension that it considers
should be revoked, the tribunal may recommend to a competent reviewing
authority that the suspension be revoked by that authority.
(4) Where, under subsection (3), a
service tribunal recommends to a competent reviewing authority that a
suspension of a punishment be revoked, the authority may revoke the suspension
and, in that event, the punishment that was suspended shall, subject to
subsections 172(1) and (2), take effect as if it had been imposed at the time
of the revocation.
81
Remission of suspended punishment
(1) Where:
(a) a punishment imposed on a member
of the Defence Force has been suspended in whole or in part and that suspension
has not been revoked; and
(b) the member ceases to be a member of
the Defence Force;
that punishment is remitted.
(2) Where a punishment of detention has been
suspended in whole or in part and that suspension has not been revoked, that
punishment, or such part of that punishment as has been suspended, is remitted
at the expiration of:
(a) a period of 12 months; or
(b) a period equal to the period for
which the punishment of detention was imposed;
whichever is the greater period, commencing on the date of
the order under subsection 78(1) or 162(8) suspending that punishment or that
part of that punishment.
(3) Where a punishment of a fine has been
suspended in whole or in part and that suspension has not been revoked, that
punishment, or so much of that punishment as is suspended, is remitted at the
expiration of a period of 12 months commencing on the date of the order under
section 79 suspending that punishment.
82
Remission of punishment of detention on imprisonment
Where a service tribunal imposes a
punishment of imprisonment on a convicted person who is already subject to a
punishment of detention (whether or not that punishment, or a part of that
punishment, has been suspended), that punishment of detention, or such part of
that punishment of detention as has not been served, is remitted.
83
Restitution orders
(1) Where a person is convicted by a service
tribunal of a service offence that involved the unlawful obtaining of property
by the convicted person, the tribunal, instead of, or in addition to, imposing
a punishment or making an order under subsection 75(1), may:
(a) if the whole or any part of the
property so unlawfully obtained is in the custody or control of the
prosecution—order the property to be repaid or restored to the person appearing
to the tribunal to be its owner; or
(b) if any property (other than money)
appearing to the tribunal to have been obtained by the conversion or exchange
of any of the property so unlawfully obtained is in the custody or control of
the prosecution—order the property to be delivered to the person appearing to
the tribunal to be the owner of the property so unlawfully obtained.
(2) Where:
(a) a person is convicted by a service
tribunal of a service offence that involved the unlawful obtaining of property
by the convicted person;
(b) it appears to the tribunal that:
(i) some or all of the
property so unlawfully obtained was given by the convicted person to another
person in exchange for other property; and
(ii) the other person did
not know, at the time of the exchange, that the property received by the other
person in the exchange had been unlawfully obtained; and
(c) the whole or a part of the
property given by the other person in the exchange is in the custody or control
of the prosecution;
the service tribunal may order that, on the restitution by
the other person of the property received by the other person in the exchange
to the person appearing to the tribunal to be its owner, the property in the
custody or control of the prosecution be restored to the other person.
(3) This section applies in relation to a service
offence that has been taken into consideration by a service tribunal under
section 77 in determining the appropriate punishment for a service offence
of which a person has been convicted by the tribunal as if the tribunal had
convicted the person of the service offence so taken into consideration.
(4) Nothing in this section affects any right
that a person may have to recover any property delivered or paid in pursuance
of an order under this section from the person to whom the property has been so
delivered or paid.
84
Reparation orders
(1) Where a person is convicted by a service
tribunal of a service offence, the tribunal may, instead of, or in addition to,
imposing a punishment or making an order under subsection 75(1), order the
person to pay such amount as it thinks just by way of reparation to a person
who has sustained loss or damage through or by reason of that service offence.
(2) Where a person is convicted by a service
tribunal that is a summary authority, the amount or the sum of the amounts that
that person may be ordered to pay by that tribunal under this section shall not
exceed:
(a) where the person is a member of
the Defence Force—the amount of the person’s pay for 14 days; or
(b) in any other case—5 times the
maximum fine that that tribunal could impose on the person.
(3) In making an order under this section, a
service tribunal may order payment to be made either in one sum or by
instalments.
(4) This section applies in relation to a
service offence that has been taken into consideration by a service tribunal
under section 77 in determining the appropriate punishment for a service
offence of which a person has been convicted by the tribunal as if the tribunal
had convicted the person of the service offence so taken into consideration.
(5) Nothing in this section affects any right
or remedy that a person may have, apart from this section, in respect of any
loss or damage occasioned by a service offence.
85
Payment of fines
(1) A service tribunal may order that a fine
shall be paid either in one sum or by instalments.
(2) A fine is payable to the Commonwealth.
Part V—Summons, arrest, custody and suspension from duty
86
Interpretation
In this Part, authorized officer
includes a commanding officer.
86A
Oaths, affirmations and affidavits
(1) An authorized officer may administer
oaths and affirmations for the purposes of this Part.
(2) The forms of oaths and affirmations
administered by an authorized officer for the purposes of this Part shall be as
prescribed.
(3) An affidavit to be used for the purposes
of this Part may be sworn before an authorized officer.
(4) This section shall not be taken to limit,
by implication, the classes of persons who may administer oaths and
affirmations for the purposes of this Part or before whom affidavits to be used
for the purposes of this Part may be sworn or affirmed.
87
Summons and order in the nature of summons
(1) Where an authorized member of the Defence
Force believes, on reasonable grounds, that a person has committed a service
offence, the authorized member may:
(a) if the person is a defence member:
(i) charge the defence
member with the service offence;
(ii) cause a copy of the
charge to be given to the defence member; and
(iii) order the defence
member to appear before a summary authority at a specified time and place to be
dealt with in accordance with section 110 or 111; or
(b) whether or not the person is a
defence member—cause to be prepared a summons directed to the person specifying
the service offence that the person is alleged to have committed and requiring
the person to appear before a commanding officer at a time and place specified
in the summons to be dealt with in accordance with section 110; or
(c) if the authorized member is the
Director of Military Prosecutions, do one of the following:
(i) if the charge is a
charge that is within the jurisdiction of a superior summary authority or a
commanding officer to try—refer the charge to a superior summary authority or a
commanding officer for trial under section 106 or 107;
(ii) request the Registrar
to refer the charge to a Defence Force magistrate for trial;
(iii) request the Registrar
to convene a court martial to try the charge.
Note: A charge referred to a Defence Force
magistrate must be referred to the magistrate nominated by the Judge Advocate
General: see subsection 129C(1).
(1A) To avoid doubt, the Director of Military
Prosecutions:
(a) may exercise any or all of the
powers referred to in paragraphs (1)(a), (b) and (c); and
(b) may exercise the power referred to
in paragraph (1)(c) in addition to, or instead of, the powers referred to
in paragraphs (1)(a) and (b).
(2) A summons under paragraph (1)(b)
shall be served on the person to whom it is directed in a manner specified in
the regulations.
(3) Where a summons relating to a service
offence is served on a person in accordance with subsection (2), the
person shall be taken, for the purposes of this Act, to have been charged with
the offence.
(4) A superior officer may order an accused
person, being a defence member, to appear before a service tribunal for any
purpose relating to the charge against the person.
(5) The appropriate authority may summon an
accused person (whether or not a defence member), in a manner provided for in
the rules of procedure, to appear before a service tribunal for any purpose
relating to the charge against the person.
(6) In this
section:
authorized member of
the Defence Force means:
(a) the Director of Military
Prosecutions; or
(b) a member of the Defence Force, or a
member of the Defence Force included in a class of members of the Defence
Force, authorized, in writing, by a commanding officer for the purposes of this
section.
88
Arrest, summons etc. where accused person not present at hearing before service
tribunal
(1) Where an accused person is not present at
a hearing before a service tribunal (otherwise than by reason of an order under
subsection 139(2)), an authorized officer or the Registrar may:
(a) if the accused person is a defence
member—order the accused person to appear before the service tribunal for any
purpose relating to the charge against the person; or
(b) whether or not the accused person
is a defence member:
(i) cause to be prepared a
summons directed to the accused person requiring the person to appear before
the service tribunal at a time and place specified in the summons for a purpose
specified in the summons relating to the charge against the person; or
(ii) issue a warrant for
the arrest of the accused person.
(1A) The Registrar may carry out an action under
subsection (1) only if a judge advocate or a Defence Force magistrate
directs the Registrar to carry out the action.
(2) A summons under paragraph (1)(b)
shall be served on the person to whom it is directed in a manner specified in the
regulations.
(3) A warrant issued under subsection (1)
shall:
(a) specify the name of the accused
person concerned and the service offence the subject of the charge; and
(b) state that the warrant is issued
because the accused person was not present at a hearing before the service
tribunal specified in the warrant.
(4) A constable or a member of the Defence
Force may, in execution of a warrant issued in accordance with subsection (1),
arrest the accused person named in the warrant.
(5) A warrant issued under subsection (1)
shall specify a date after which the warrant ceases to have effect.
89
Arrest without warrant
(1) A member of the Defence Force may,
without warrant, arrest a person over whom the member has a power of arrest if,
and only if, the member believes on reasonable grounds:
(a) that the person has committed, or
is committing, a service offence;
(b) that the arrest of the person is
necessary in order to achieve one or more of the following purposes:
(i) the purpose of
ensuring the appearance of the person before a service tribunal in respect of
the service offence;
(ii) the purpose of
preventing a continuation of or repetition of the service offence or the
commission of a further service offence;
(iii) the purpose of
preventing the concealment, loss or destruction of evidence of, or relating to,
the service offence;
(iv) the purpose of
preserving the safety or welfare of the person; and
(c) that proceedings under section 87
against the person in respect of the offence would not effectively achieve that
purpose or those purposes.
(2) For the purposes of subsection (1):
(a) an officer has a power of arrest
over:
(i) a sailor, soldier or
airman;
(ii) an officer in respect
of whom he or she is a superior officer; or
(iii) a defence civilian;
(b) a warrant officer or a non‑commissioned
officer has a power of arrest over a sailor, soldier or airman in respect of
whom he or she is a superior officer;
(c) a
member of:
(i) the regulating staff;
(ii) the staff of the
officer of the watch; or
(iii) the staff of the
officer of the day;
of a ship or establishment of
the Australian Navy has a power of arrest over any sailor;
(d) a police member or a person
lawfully exercising authority under or on behalf of a service police officer
has, subject to the regulations, a power of arrest over any person; and
(e) where the service offence
concerned is mutiny or a service offence involving disorderly or violent
behaviour:
(i) an officer has a power
of arrest over any other officer; and
(ii) a warrant officer or a
non‑commissioned officer has a power of arrest over any other sailor, soldier
or airman.
(3) A power of arrest under subsection (1)
may be exercised:
(a) personally;
(b) by ordering the person concerned
into arrest; or
(c) by giving an order for the arrest
of the person concerned.
(4) Nothing in subsection (1) authorizes
the arrest, without warrant, of a person who is not a defence member or a
defence civilian.
(5) A constable may, without warrant, arrest
a person who the constable believes, on reasonable grounds, is escaping from
custody or has escaped from custody to which the person is still liable.
90
Arrest under warrant
(1) Subject to this section, where an
authorized officer:
(a) is satisfied by information on
oath or affirmation that there are reasonable grounds for suspecting that a
person has committed a service offence; and
(b) believes on reasonable grounds
that proceedings under section 87 would not be effective;
the authorized officer may issue a warrant for the arrest
of the person.
(2) An authorized officer shall not issue a
warrant under subsection (1) for the arrest of a person for a service
offence unless:
(a) an affidavit of the informant has
been furnished to the authorized officer setting out the reasons for which the
issue of the warrant is sought (including the reasons why it is believed that
the person has committed the service offence and the reasons why it is claimed
that proceedings under section 87 would not be effective);
(b) the informant or some other person
has furnished to the authorized officer, on oath or affirmation, such further
information (if any) as the authorized officer requires concerning the reasons
for which the issue of the warrant is sought; and
(c) the authorized officer is satisfied,
after considering the affidavit and any such further information, that there
are reasonable grounds for the issue of the warrant.
(3) Where an authorized officer issues a
warrant under subsection (1), the officer shall indicate, by writing under
the officer’s hand, on the affidavit referred to in subsection (2), which
of the reasons specified in that affidavit, and any other reasons, the officer
has relied on as justifying the issue of the warrant.
(4) A warrant issued under subsection (1)
shall specify the name of the person concerned and the service offence that the
person is alleged to have committed.
(5) A constable or a member of the Defence
Force may, in execution of a warrant issued in accordance with subsection (1),
arrest the person named in the warrant.
(6) A warrant issued under subsection (1)
shall specify a date after which the warrant ceases to have effect.
91
Power to enter to make arrest
(1) Subject to subsection (3), where a
constable has, under a warrant issued under this Act, power to arrest a person,
the constable may enter any premises, by force if necessary, at any time of the
day or night for the purpose of arresting the person, and may search the
premises for the person, if the constable believes on reasonable grounds that
the person is on the premises.
(2) Subject to subsection (3), where, by
virtue of subsection 89(5), a constable may, without warrant, arrest a person,
the constable may enter any premises, by force if necessary, at any time of the
day or night for the purpose of arresting the person, and may search the
premises for the person, if the constable believes on reasonable grounds that
the person is on the premises.
(3) Subsections (1) and (2) do not
authorize a constable to enter premises at any time during the period
commencing at 9 o’clock in an evening and ending at 6 o’clock in the next
following morning for the purpose of arresting a person if the constable
believes, on reasonable grounds, that it will be practicable to arrest the
person, either on the premises or elsewhere, at any other time.
92 Use
of force in making arrest
(1) A person shall not, in the course of
arresting another person under this Act, use more force, or subject the other
person to greater indignity, than is necessary to make the arrest or to prevent
the escape of the other person after the other person has been arrested.
(2) A person:
(a) shall not, in the course of
arresting another person under this Act, do an act likely to cause the death
of, or grievous bodily harm to, the other person unless the person making the
arrest believes on reasonable grounds that the doing of that act is necessary
to protect life or to prevent serious injury to any other person (including the
person making the arrest); and
(b) without limiting the application
of paragraph (a), shall not, in the course of so arresting another person
who is attempting to escape arrest by fleeing, do such an act unless the other
person has, if practicable, been called upon to surrender and the person making
the arrest believes on reasonable grounds that the other person cannot be
apprehended in any other manner.
93
Persons to be informed of grounds of arrest
(1) A person who arrests another person for a
service offence shall inform the other person, at the time of the arrest, of
the service offence for which the other person is arrested.
(2) A person who arrests another person for a
service offence shall be taken to have complied with subsection (1) if the
person informs the other person of the substance of the service offence for
which the other person is arrested, and it is not necessary for the person to
do so in language of a precise or technical nature.
(3) Subsection (1) does not apply to or
in relation to the arrest of a person:
(a) if that person ought, by reason of
the circumstances in which the person is arrested, to know the substance of the
service offence for which the person is arrested; or
(b) if that person makes it
impracticable, by reason of his or her actions, for the person making the
arrest to inform him or her of the service offence for which the person is
arrested.
94
Civil detention of arrested person
(1) A constable may detain a person arrested
(whether by himself or herself or by another constable) under this Act at a
civil detention facility for such time as is reasonably necessary to enable the
arrested person to be delivered into the custody of a police member or an
authorized officer.
(2) Where:
(a) a person has been arrested under
this Act and is in the custody of a member of the Defence Force; and
(b) a commanding officer or the senior
member of the escort of the arrested person certifies, in writing, that it is
necessary for the arrested person to be detained in a place of detention and
that no suitable place of detention controlled by the Defence Force is
reasonably available for the purpose;
a constable may detain the arrested person in a civil
detention facility for a period not exceeding 7 days.
95
Avoidance of delay after arrest
(1) Where a member of the Defence Force:
(a) arrests a person under this Act;
or
(b) receives into his or her custody a
person who has been arrested under this Act;
the member shall, as soon as practicable, take all
reasonable steps in the member’s power to ensure that the arrested person is
delivered into the custody of a commanding officer.
(2) Where a person has been delivered into
the custody of a commanding officer, the commanding officer or an officer
authorized, in writing, by the commanding officer shall, unless the person has
been arrested in execution of a warrant issued under section 88, before
the expiration of the period of 24 hours after the person has been delivered
into the custody of the commanding officer, either charge the person with a
service offence or release the person from custody.
(3) Where a person is charged with a service
offence in accordance with subsection (2), the commanding officer shall
forthwith cause a copy of the charge to be given to the person.
(4) Where a person is charged with a service
offence in accordance with subsection (2), the commanding officer shall,
as soon as practicable, cause proceedings to be commenced for dealing with the
charge and, if no such proceedings are commenced before the expiration of a
period of 48 hours after the person has been delivered into the custody of the
commanding officer, the commanding officer shall, at the expiration of that
period, report, in writing, to a superior authority and the Director of
Military Prosecutions his or her reasons for not causing those proceedings to
be commenced.
(5) Where a person remains in the custody of
the commanding officer for a period of 8 days or more without the charge
against the person having been dealt with, the commanding officer shall, at the
expiration of the first 8 day period of such custody and, thereafter, at the
expiration of each subsequent 8 day period of such custody, report, in writing,
to a superior authority and the Director of Military Prosecutions his or her
reasons for the delay in dealing with the charge.
(6) For the purposes of subsection (5),
a charge that is dealt with by a summary authority by referring it to another
summary authority shall be deemed not to have been dealt with.
(7) If due to the exigencies of service it is
not reasonably practicable for the commanding officer to make a report in
accordance with subsection (5) on the date on which that report is due, he
or she shall make that report as soon as it becomes reasonably practicable to
do so and shall state in that report why it was not reasonably practicable to
report on the due date.
(8) Where a person remains in custody for 30
days and the charge against the person has not been dealt with within the
meaning of subsection (5), the superior authority to whom a report under subsection (5)
or subsection (7) has been made shall notify the Director of Military
Prosecutions and the Chief of the Defence Force, a service chief or an
authorized officer of the reasons why the charge has not been dealt with.
(9) Upon receipt of a notification in
accordance with subsection (8), the Chief of the Defence Force, the
service chief or the authorized officer shall, unless he or she is satisfied
that it is proper that the person should continue in custody, order the release
of the person from custody.
95A
Search of persons in custody in custodial facilities
(1) Where:
(a) a person (in this section referred
to as the accused person) is in custody on a charge in a
custodial facility; and
(b) an authorized person in relation
to the custodial facility believes that it is necessary to do so for the
purpose of ascertaining whether there is concealed on the accused person or in
the accused person’s clothing:
(i) a weapon or other
thing capable of being used to:
(A) inflict
death or bodily injury; or
(B) assist
him or her to escape from custody; or
(ii) any thing that is
likely to affect the security or discipline of the custodial facility;
the authorized person may direct an authorized member in
relation to the custodial facility to search the accused person and the
clothing that the accused person is wearing.
(2) The search shall be conducted in
accordance with the following provisions:
(a) the search shall be conducted in
the presence of at least 2 other persons who are authorized persons, or
authorized members, in relation to the custodial facility;
(b) the search shall not be conducted
in the presence of a person who is not an authorized person, or an authorized
member, in relation to the custodial facility;
(c) the accused person shall not be
searched by, or in presence of, a person who is not of the same sex as the
accused person.
(3) The
authorized member directed to conduct the search may:
(a) require the accused person to
remove any clothing that the accused person is wearing;
(b) if the accused person refuses or
fails to comply with such a requirement—remove the clothing;
(c) use such reasonable force as is
necessary to conduct the search; and
(d) seize any weapon or thing of a
kind referred to in paragraph (1)(b) found as in the course of the search.
(4) In this section:
authorized member, in relation to a custodial
facility, means a member of the Defence Force, or a member of the Defence Force
included in a class of members of the Defence Force, appointed by a commanding
officer, in writing, to be an authorized member or authorized members, as the
case may be, in relation to the custodial facility.
authorized person, in relation to a custodial
facility, means a member of the Defence Force, or a member of the Defence Force
included in a class of members of the Defence Force, appointed by a commanding
officer, in writing, to be an authorized person or authorized persons, as the
case may be, in relation to the custodial facility.
custodial facility means a place or facility:
(a) under the control of the Defence
Force; and
(b) at or in which a person in custody
on a charge is detained.
96
Time limitation on charges
(1) A person shall not be charged with:
(a) an offence against this Act (other
than section 61) or the regulations; or
(b) a service offence that is an ancillary
offence in relation to an offence referred to in paragraph (a);
after the expiration of a period of 5 years after the time
at which the offence is alleged to have been committed.
(2) Notwithstanding
anything in subsection (1), a person may be charged with:
(a) an offence against any of sections 15
to 16B, section 20 or section 22; or
(b) a service offence that is an
ancillary offence in relation to an offence referred to in paragraph (a);
at any time.
(3) A reference in subsection (1) to a
period shall be read as not including a reference to a period during which the
person:
(a) was a prisoner of war;
(b) was absent without leave; or
(c) was serving a sentence of
imprisonment.
(4) A person shall not be charged with an
offence against section 61 if the time that has elapsed since the offence
is alleged to have been committed equals or exceeds the period of time that
would bar trial by, or institution of proceedings in, a court exercising
jurisdiction in or in relation to the Jervis Bay Territory for the relevant
Territory offence.
(5) A person shall not be charged with, or
tried for, an old system offence if the person could not have been charged
with, or tried for, as the case may be, that offence if the provisions of
previous service law imposing a time limitation on such a charge or trial were
still in force.
(6) A person who has ceased to be a member of
the Defence Force or a defence civilian shall not be charged with a service
offence unless:
(a) the period that has elapsed since
the person so ceased does not exceed 6 months; and
(b) the maximum punishment for the
service offence is imprisonment for a period of 2 years or a punishment that is
more severe than that punishment.
97
Release from custody
(1) A commanding officer or an officer
authorized, in writing, by a commanding officer may at any time release from
custody a person charged with a service offence and may impose on that person,
in relation to that release, such conditions and restrictions, being conditions
or restrictions of a kind authorized by the Chief of the Defence Force or a
service chief, by instrument in writing, for the purposes of this section, as
he or she considers necessary.
(2) An officer referred to in subsection (1)
may at any time vary or revoke a condition or restriction in force in relation
to a person under this section.
(3) An officer who:
(a) imposes a condition or restriction
under subsection (1) on a person; or
(b) varies or revokes a condition or
restriction in force in relation to a person under this section;
shall cause the imposition, variation or revocation to be
notified to the person as soon as practicable.
(4) A person released under subsection (1)
may again be taken into custody if, and only if:
(a) the person is in breach of a
condition or restriction in force in relation to the person under this section;
or
(b) the person is arrested for another
service offence.
(5) A
condition or restriction in force in relation to a person under this section
ceases to have effect if:
(a) a summary authority or the
Director of Military Prosecutions directs that the charge against the person be
not proceeded with;
(b) the person is acquitted or
convicted of the service offence charged; or
(c) the charge against the person is
dismissed.
98
Suspension from duty on suspicion of offence etc.
(1) Where a member of the Defence Force is
charged with a service offence, a civil court offence or an overseas offence,
an authorized officer may, by notice in writing served on the member, suspend
the member from duty.
(2) Where an authorized officer suspects on
reasonable grounds that a member of the Defence Force has committed a service
offence and orders an investigation, an authorized officer may, by notice in
writing served on the member, suspend the member from duty.
(3) Where a member of the Defence Force is
suspended from duty under subsection (1), the suspension ceases:
(a) if the charge is not proceeded
with or the prosecution of the charge is abandoned—at the time the member is
notified to that effect; or
(b) in any other case—on the
termination of the proceedings before the service tribunal, the civil court or
the overseas court hearing the charge.
(4) Where a member of the Defence Force is
suspended from duty under subsection (2), the suspension ceases on the
completion of the investigation referred to in that paragraph unless the member
concerned is charged with a service offence.
(5) Where on the completion of an
investigation referred to in subsection (2) the member concerned is
charged with a service offence, the suspension of the member under that
subsection continues as a suspension of the member under subsection (1).
(6) A notice under subsection (1) or (2)
shall be served in a manner specified in the regulations.
99
Suspension from duty after conviction
(1) Where a service tribunal imposes upon a
member of the Defence Force a punishment that does not take effect unless it is
approved by a reviewing authority, the service tribunal or a reviewing
authority may, by notice in writing served on the member, suspend the member
from duty pending the decision of the reviewing authority.
(2) Where a member of the Defence Force is
convicted of a service offence, a civil court offence or an overseas offence,
an authorized officer may, by notice in writing served on the member, suspend
the member from duty pending a decision as to the termination of the member’s
service.
(3) A notice under subsection (1) or (2)
shall be served in a manner specified in the regulations.
100
Effect of custody or suspension from duty
(1) A member of the Defence Force is not
required to perform any duty of the member’s office or appointment (other than
such duties as may be necessary to relieve the member of that office or
appointment) during any period of custody or any period of suspension from duty
under section 98 or 99.
(2) Subject to subsection (3), a member
of the Defence Force who is suspended from duty under subsection 98(1) or
section 99 is not entitled to remuneration in respect of the period of
suspension.
(3) If a member of the Defence Force is
suspended from duty under subsection 98(1) or section 99, the relevant
authority may, at any time, on application by the member or otherwise, direct
that the member receive remuneration during the whole, or a specified part, of
the period of suspension.
(4) A direction may only be given under subsection (3)
if the relevant authority is satisfied that the member is suffering, or has
suffered, hardship as a result of the suspension.
(5) For the purposes of subsection (3),
the relevant authority is:
(a) in the case of a suspension under
subsection 98(1) or 99(2)—an authorised officer; or
(b) in the case of a suspension under
subsection 99(1)—the service tribunal by which the suspension was imposed or a
reviewing authority.
(6) A member of the Defence Force who is
suspended from duty under subsection 98(1) or section 99 is entitled to
engage in employment outside the Defence Force during any period of suspension
in respect of which the member is not receiving remuneration.
(7) This section does not affect any
requirement to perform a duty, or any remuneration entitlement, of a member of
the Defence Force who is undergoing a punishment of detention.
(8) In this section, remuneration
has the same meaning as in Division 1 of Part IIIA of the Defence
Act 1903.
Part VI—Investigation of service offences
Division 1—Preliminary
101
Interpretation
(1) In this Part, unless the contrary
intention appears:
confession includes any admission or
incriminating statement.
interview, in relation to a person, includes
asking the person questions in the course of investigating a service offence.
investigating officer means:
(a) a police member; or
(b) an officer, warrant officer or non‑commissioned
officer (not being a police member) engaged in the investigation of a service
offence.
relevant act, in relation to a service
offence, means:
(a) an act or omission that
constituted, or was done or omitted to be done, as the case requires, in
connection with, the commission of the service offence; or
(b) an act or omission believed by an
investigating officer investigating the service offence to have constituted, or
to have been done or omitted to have been done, as the case requires, in
connection with, the commission of the service offence.
relevant person, in relation to a relevant
act, means a person who was seen by another person doing or omitting to do, as
the case requires, the relevant act.
serious service offence means a service
offence punishable by a maximum punishment, or a fixed punishment, of
imprisonment for life or a period exceeding 6 months.
suspect, in relation to a relevant act, means
a person whom an investigating officer investigating the service offence in
relation to the relevant act believes may be a person who did or omitted to do,
as the case requires, the relevant act.
tape recording includes sound recording and
video recording.
telephone includes telex, radio or similar
facilities.
witness, in relation to a relevant act, means
a person who saw another person doing or omitting to do, as the case requires,
the relevant act.
(2) For the purposes of this Part, a person
is in custody in respect of a service offence if the person is being detained
as a person charged with the service offence or as a person arrested for, but
not yet charged with, the service offence.
(3) If a person is not in custody in respect
of a particular service offence (in this subsection referred to as the
relevant service offence), but:
(a) is in custody, or is undergoing
detention or imprisonment, in respect of another service offence or is in
custody for another reason; or
(b) in connection with the
investigation of the relevant service offence, is in the company of an
investigating officer;
and an investigating officer concerned in the investigation
of the relevant service offence:
(c) in the case of a person to whom paragraph (a)
applies—has come to the belief, or has given the person reasonable grounds for
believing that the person has come to the belief, that it is probable that the
person committed the relevant service offence; or
(d) in the case of a person to whom paragraph (b)
applies—would not allow the person to leave, or has given the person reasonable
grounds for believing that the person would not be allowed to leave, if the
person wished to do so;
then, unless the contrary intention appears, the
provisions of this Part have effect as if the person were in custody in respect
of the relevant service offence.
(4) Unless the contrary intention appears, a
reference in this Part to custody includes a reference to custody that was
unlawfully commenced or is being unlawfully continued.
(5) Unless the contrary intention appears, a
reference in this Part to a service offence includes a reference to a service
offence that an investigating officer has reasonable grounds for believing is
being, has been, or will be committed.
(6) Without prejudice to the interpretation
of a provision of this Act (other than a provision of this Part):
(a) it is the duty of an investigating
officer to comply with the provisions of this Part in exercising his or her
powers, or performing his or her duties, as an investigating officer; and
(b) where an investigating officer
contravenes a provision of this Part that is applicable to the officer—the
contravention is not punishable as a service offence unless a penalty is
provided by this Act or the regulations in respect of the contravention.
(7) Nothing in subsection (6) shall be
taken to affect:
(a) the operation of any provision of
this Act or the regulations relating to the exclusion of evidence; or
(b) any civil proceedings.
101AA
Oaths, affirmations and affidavits
(1) An authorized officer may administer
oaths and affirmations for the purposes of this Part.
(2) The forms of oaths and affirmations
administered by an authorized officer for the purposes of this Part shall be as
prescribed.
(3) An affidavit to be used for the purposes
of this Part may be sworn before an authorized officer.
(4) This section shall not be taken to limit,
by implication, the classes of persons who may administer oaths and
affirmations for the purposes of this Part or before whom affidavits to be used
for the purposes of this Part may be sworn or affirmed.
Division 2—Duties of investigating officers when interviewing suspects
101A
Interpretation
Where the investigating officer in
charge of investigating a service offence has grounds for believing that a
person who is in custody in respect of the service offence has committed
another service offence, the person shall, for the purposes of this Division,
be deemed to be in custody in respect of both of the service offences.
101B
Investigating officer may question persons
(1) Where an investigating officer who is
investigating a service offence believes that a person (including a person
believed by the investigating officer to have committed the service offence)
may be able to furnish information that may assist the investigating officer in
his or her investigation of the service offence, the investigating officer may,
subject to this Part, ask the person questions relevant to his or her
investigation of the service offence.
(2) A person who is asked a question by an
investigating officer under subsection (1) is not required to answer the
question.
101C
Questioning and cautioning of person in custody
(1) Where a person is in custody, an
investigating officer shall not ask the person any questions or ask the person
to do any thing, for a purpose connected with the investigation of a service
offence, unless the investigating officer has told the person his or her name
and rank.
(2) Where, at or after the time when a person
comes into custody in respect of a service offence, an interview of the person
in connection with the service offence is being conducted by an investigating
officer, the investigating officer shall not:
(a) ask the person any questions, or
ask the person to do any thing, for a purpose connected with the investigation
of the service offence; or
(b) cause or permit another person to
ask the person any questions, or ask the person to do any thing, for a purpose
connected with the investigation of the service offence;
unless an investigating officer has, at or since the
commencement of the interview cautioned the person that he or she does not have
to say or do anything, but that anything the person does say or do may be used
in evidence.
(2A) A caution for the purpose of subsection (2)
must be given in, or translated into, a language in which the person being
cautioned is able to communicate with reasonable fluency, but need not be given
in writing.
(2B) An investigating officer who is required by
subsection (2) to caution a person must, if practicable, tape record the
giving of the caution and the person’s response (if any).
(2C) If:
(a) an investigating officer cautions
a person under this section; and
(b) the giving of the caution and the
person’s response (if any) to the caution are not tape recorded;
then, in any proceedings before a service tribunal, the
prosecution has the burden of proving that it was not practicable to tape
record the giving of the caution or the person’s response (if any) to the
caution.
(3) Subsection (2) does not apply in
relation to asking a person to take part in an identification parade conducted
in accordance with section 101N.
101D Cautioning
once decision to charge or summon has been made
(1) After an investigating officer has
decided to charge a person with a service offence, to seek the issue of a
summons against a person for a service offence or to recommend that a person be
so charged or that a summons be so sought:
(a) an investigating officer must not
ask the person any question, or request the person to do anything, for a
purpose connected with the investigation of the service offence unless the
investigating officer or another investigating officer has cautioned the person
that he or she does not have to say or do anything, but that anything the
person does say or do may be used in evidence; and
(b) the investigating officer who made
the decision must take reasonable steps to ensure that paragraph (a) is
not contravened.
(2) A caution for the purpose of paragraph (1)(a)
must be given in, or translated into, a language in which the person being
cautioned is able to communicate with reasonable fluency, but need not be given
in writing.
(3) An investigating officer who is required
by subsection (1) to caution a person must, if practicable, tape record
the giving of the caution and the person’s response (if any).
(4) If:
(a) an investigating officer cautions
a person under this section; and
(b) the giving of the caution and the
person’s response (if any) to the caution are not tape recorded;
then in any proceedings before a service tribunal, the
prosecution has the burden of proving that it was not practicable to tape
record the giving of the caution or the person’s response (if any) to the
caution.
(5) Subsection (1) does not apply in
relation to asking a person to take part in an identification parade.
101E
Access to friend, relative and legal practitioner
(1) Subject to section 101G, if a person
is in custody in respect of a service offence, an investigating officer
concerned in the investigation of the offence must, before starting to question
the person, inform the person that he or she may:
(a) communicate, or attempt to
communicate, with a friend or relative to inform that person of his or her
whereabouts; and
(b) communicate, or attempt to
communicate, with a legal practitioner of the person’s choice and arrange, or
attempt to arrange, for a legal practitioner of the person’s choice to be
present during the questioning;
and the investigating officer must defer the questioning
for a reasonable time to allow the person to make, or attempt to make, the
communication and, if the person has arranged for a legal practitioner to be
present, to allow the legal practitioner to attend the questioning.
(2) Subject to section 101G, if a person
in custody in respect of a service offence wishes to communicate with a friend,
relative or legal practitioner, the investigating officer holding the person in
custody must:
(a) as soon as practicable, give the
person reasonable facilities to enable the person to do so; and
(b) in the case of a communication
with a legal practitioner—allow the legal practitioner or a clerk of the legal
practitioner to communicate with the person in circumstances in which, as far
as practicable, the communication will not be overheard.
(3) Subject to section 101G, if a person
in custody in respect of a service offence arranges for a legal practitioner to
be present during the questioning, the investigating officer holding the person
in custody must:
(a) allow the person to consult with
the legal practitioner in private and provide reasonable facilities for that
consultation; and
(b) allow the legal practitioner to be
present during the questioning and to give advice to the person, but only while
the legal practitioner does not unreasonably interfere with the questioning.
101F
Lists of legal officers
(1) In this section, prescribed place
means a place prescribed for the purposes of this section.
(2) Subject to and in accordance with the
regulations, the Chief of the Defence Force shall establish and, so far as it
is reasonably practicable to do so, update at such intervals as the Chief of
the Defence Force thinks appropriate, a list, in relation to each prescribed
place, of the names of legal officers who are willing to assist persons who are
in custody at, or in the vicinity of, the prescribed place.
(2A) The Chief of
the Defence Force may delegate his or her powers under subsection (2) to a
member of the Defence Force who holds a rank that is not lower than the naval
rank of captain, or the rank of colonel or group captain.
(3) Where a person is in custody in respect
of a service offence at, or in the vicinity of, a prescribed place, an
investigating officer shall furnish to the person a copy of the list of the
names of legal officers kept in relation to the prescribed place if:
(a) the person, to the knowledge of
the investigating officer, seeks to communicate, but is unable to communicate,
with a legal practitioner of the person’s choice; or
(b) the investigating officer has
reasonable grounds for believing that the person wishes to communicate with a
legal practitioner but does not know of a legal practitioner whom the person
could consult.
(4) The requirements of subsection (3)
apply only if, and to the extent that, the exigencies of service permit.
(5) A reference in this section to a person
in custody in respect of a service offence shall be read:
(a) as not including a reference to a
person who is undergoing a punishment of detention or imprisonment in respect
of the service offence or is in custody under subsection 172(3A), (4) or (5) in
respect of the service offence; and
(b) as including a reference to a
person (other than a person referred to in paragraph (a)) who is being, or
will be, interviewed by an investigating officer in connection with the
investigation of the service offence and has been given a caution of a kind
referred to in subsection 101C(2).
101G
Exceptions to requirements of section 101E
(1) Subject to subsections (2), (3) and
(4), if a requirement imposed on an investigating officer by section 101E
is expressed to be subject to this section, the requirement does not apply if,
and so long as, the investigating officer has reasonable grounds for believing
that:
(a) compliance with the requirement is
likely to result in:
(i) an accomplice of the
person taking steps to avoid apprehension; or
(ii) the concealment,
fabrication or destruction of evidence or the intimidation of a witness; or
(b) if the requirement relates to the
deferral of questioning—the questioning is so urgent, having regard to the
safety of other people, that it should not be delayed by compliance with that
requirement.
(2) If the application of subsection (1)
results in:
(a) preventing or delaying the person
communicating with a legal practitioner of his or her choice; or
(b) preventing or delaying a legal
practitioner of the person’s choice attending at any questioning;
the investigating officer must offer the services of
another legal practitioner and, if the person accepts the offer, make the
necessary arrangements.
(3) If a requirement referred to in subsection (1)
relates to things done by or in relation to a legal practitioner:
(a) subsection (1) applies only
in exceptional circumstances; and
(b) if subsection (1) applies,
the investigating officer must comply with the requirement as soon as possible
after subsection (1) ceases to apply.
(4) If a requirement referred to in subsection (1)
relates to things done by or in relation to a legal practitioner, subsection (1)
only applies if an appropriate officer has authorised the application of subsection (1)
and has made a record of the investigating officer’s grounds for belief.
(5) An appropriate officer, for the purposes
of subsection (4) is:
(a) if the person in custody is a
member of the Australian Navy—a member of the Australian Navy holding the rank
of Commander or a higher rank; or
(b) if the person in custody is a
member of the Australian Army—a member of the Australian Army holding the rank
of Lieutenant‑Colonel or a higher rank; or
(c) if the person in custody is a
member of the Australian Air Force—a member of the Australian Air Force holding
the rank of Wing Commander or a higher rank.
101H
Treatment of persons in custody
(1) A person shall, while in custody in
respect of a service offence, be treated with humanity and with respect for
human dignity.
(2) A person shall not, while in custody in
respect of a service offence, be subjected to cruel, inhuman or degrading
treatment.
(3) Where a member of the Defence Force
responsible for the custody of a person:
(a) is informed by the person that the
person wishes to be provided with medical treatment in respect of illness or an
injury; or
(b) has reasonable grounds for
believing that the person wishes to be provided with, or requires, medical
treatment in respect of illness or an injury;
the member of the Defence Force shall, forthwith, take
such reasonable action as is necessary to provide the person with medical
treatment.
(4) Where a person is in custody in respect
of a service offence, the investigating officer in charge of investigating the
service offence shall take all reasonable steps to ensure that the person is
provided with reasonable refreshments and reasonable access to toilet
facilities.
(5) Where a person who is in custody in
respect of a service offence is to be brought before a service tribunal while
still in custody, the investigating officer in charge of investigating the
service offence shall take all reasonable steps to ensure that the person is
provided with facilities to wash or shower, and with the opportunity to obtain,
and change into, other clothes, before the person is brought before the service
tribunal.
(6) Where an investigating officer has
reasonable grounds for believing that a person in custody is unable, by reason
of inadequate knowledge of the English language or any physical disability, to
communicate orally with reasonable fluency in the English language, the
investigating officer shall not ask the person any questions in connection with
the investigation of a service offence unless:
(a) a person competent to act as
interpreter is present and acts as interpreter during the questioning;
(b) the investigating officer
questions the person in a language in which both the investigating officer and
the person are able to communicate with reasonable fluency, or by any other
means by which the investigating officer and the person are able to communicate
with reasonable proficiency; or
(c) the investigating officer has
reasonable grounds for believing that it is necessary to question the person
otherwise than in accordance with paragraph (a) or (b) without delay in
order to avoid danger of the death of, or serious injury to, any person or
serious damage to property.
(7) The provisions of subsection (1) or
(2) shall not be taken to be contravened by the taking of any action by an
investigating officer in accordance with section 101L or by the taking of
necessary custodial measures.
Division 3—Confessions
101J
Admissibility of confessional evidence
(1) Evidence of a confession made by a person
in the presence of an investigating officer is not admissible in proceedings
against the person for a service offence unless the service tribunal or, in the
case of a court martial, the judge advocate of the court martial, is satisfied
that the confession was made voluntarily.
(2) For the purposes of subsection (1),
a confession that is obtained from a person in consequence of:
(a) the use of physical violence, or a
threat of physical violence, to any person; or
(b) the making of a promise, threat or
other inducement (not being physical violence or a threat of physical violence)
likely to cause the person to make a confession that is untrue;
shall be deemed not to be made voluntarily.
101JA
Tape recording of confessions and admissions
(1) If a person who is being interviewed as a
suspect (whether under arrest or not) makes a confession or admission to a
police member, the confession or admission is inadmissible as evidence against
the person in proceedings for a service offence unless:
(a) if the confession or admission was
made in circumstances where it was reasonably practicable to tape record the
confession or admission—the questioning of the person and anything said by the
person during that questioning was tape recorded; or
(b) in any other case:
(i) at the time of the
interview of the person or as soon as practicable afterwards, a record in
writing was made, either in English or in another language used by the person
in the interview, of the things said by or to the person in the course of the
interview; and
(ii) as soon as practicable
after the record was made, it was read to the person in the language used by
him or her in the interview and a copy of the record was made available to the
person; and
(iii) the person was given
the opportunity to interrupt the reading at any time for the purpose of drawing
attention to any error or omission that he or she claimed had been made in or
from the record and, at the end of the reading, the person was given the
opportunity to state whether he or she claimed that there were any errors in or
omissions from the record in addition to any to which he or she had drawn
attention in the course of the reading; and
(iv) a tape recording was
made of the reading referred to in subparagraph (ii) and of everything
said by or to the person as a result of compliance with subparagraph (iii),
and the requirements of subsection (2) were observed in respect of that
recording; and
(v) before the reading
referred to in subparagraph (ii), an explanation, in accordance with the
form set out in subsection (6), was given to the person of the procedure
that would be followed for the purposes of compliance with that subparagraph
and subparagraphs (iii) and (iv).
(2) If the questioning, confession or
admission, or the confirmation of a confession or admission, of a person is
recorded as required under this section, the police member concerned must,
without charge:
(a) if the recording is a sound
recording only or a video recording only—make the recording or a copy of it
available to the person or his or her legal representative within 7 days after
the making of the recording; and
(b) if both a sound recording and a
video recording were made—make the sound recording or a copy of it available to
the person or his or her legal representative within 7 days after the making of
the recording, and notify the person or his or her legal representative that an
opportunity will be provided, on request, for viewing the video recording; and
(c) if a transcript of the tape
recording is prepared—make a copy of the transcript available to the person or
his or her legal representative within 7 days after the preparation of the
transcript.
(3) In proceedings for a service offence,
evidence to which this section applies may be admitted even if the requirements
of this section have not been complied with, or there is insufficient evidence
of compliance with those requirements, if, having regard to the nature of and
the reasons for the non‑compliance or insufficiency of evidence and any other
relevant matters, the service tribunal or, in the case of a court martial, the
judge advocate of the court martial, is satisfied that, in the special
circumstances of the case, admission of the evidence would not be contrary to
the interests of justice.
(4) In proceedings for a service offence,
evidence to which this section applies may be admitted even if a provision of subsection (2)
has not been complied with if, having regard to the reasons for the non‑compliance
and any other relevant matters, the service tribunal or, in the case of a court
martial, the judge advocate of the court martial, is satisfied that it was not
practicable to comply with that provision.
(5) If the judge advocate of a court martial
permits evidence to be given under subsection (3) or (4), the judge
advocate must inform the members of the court martial of the non‑compliance
with the requirements of this section, or of the absence of sufficient evidence
of compliance with those requirements, as the case may be, and give the members
such warning about the evidence as he or she thinks appropriate in the circumstances.
(6) The explanation referred to in subparagraph (1)(b)(v)
is to be in accordance with the following form:
When you were interviewed by [name
of police member], a written record was made of what you said, and what was
said to you, in the interview. The record was made *at the time of the interview *as soon as
practicable after the interview. It is in *English *the language you used at the interview.
You will be given a copy.
I am now going to read it to you
in [language], the language you used in the interview.
You have the right to interrupt
the reading at any time if you think there is something wrong with the record.
At the end of the reading, you have the right to tell me about anything else
you think is wrong with the record, as well as the things you mentioned during
the reading.
A tape recording will be made of
the reading of the record and of everything you say, and everything said to
you, during the reading and at the end. You will be given a copy of that tape
recording and, if a transcript is made, a copy of that transcript.
*Delete whichever is not applicable.
101K
Admissibility of oral confessions
(1) Subject to subsection (10), in
proceedings against a person (in this section referred to as the accused)
before a service tribunal in respect of a serious service offence, evidence by
an investigating officer who is not a police member of a confession made by the
accused in his or her presence, after the proclaimed date, is not admissible on
behalf of the prosecution unless the requirements of subsection (2), (3)
or (4) are complied with in respect of the interview during which the
confession is alleged to have been made.
(2) This subsection is complied with in
respect of an interview:
(a) if 2 sound recordings of
everything said by and to the accused during the interview are made by the one
multiple sound recording apparatus; or
(b) where a multiple sound recording
apparatus is not available at the place of interview for use by the
investigating officer conducting the interview—if one sound recording of
everything said by and to the accused during the interview is made by a sound
recording apparatus and a copy of the sound recording is made as soon as
practicable thereafter;
and the requirements of subsections (5) and (6) are
observed in respect of the sound recordings.
(3) This subsection is complied with in
respect of an interview if, at the time of the interview or as soon as
practicable thereafter, a record in writing is made, either in English or in
another language used by the accused during the interview, of everything said
by and to the accused during the interview and:
(a) the record, with or without
alteration, is acknowledged, in writing in the prescribed manner, by the
accused to be a full and correct record and a copy of the record as so
acknowledged is given to him or her; and
(b) if the language used by the
accused during the interview is a language other than English but the record is
made in English—the record is read to the accused, in the language used by the
accused during the interview, before he or she so acknowledges it.
(4) This subsection is complied with in
respect of an interview if:
(a) at the time of the interview or as
soon as practicable thereafter, a record in writing is made, either in English
or in another language used by the accused during the interview, of everything
said by and to the accused during the interview;
(b) as soon as practicable after the
record is made, the record is read to the accused in the language used by the
accused during the interview and a copy of the record is given to the accused;
(c) the accused is given the
opportunity to interrupt the reading at any time for the purpose of drawing
attention to any error or omission that the accused claims has been made in or
from the record and, at the end of the reading, the accused is given the
opportunity of stating whether the accused claims that there are any errors in
or omissions from the record, in addition to any to which the accused has drawn
attention during the reading;
(d) either:
(i) 2 sound recordings are
made by the one multiple sound recording apparatus of the reading referred to
in paragraph (b) and of everything said by and to the accused as a result
of compliance with paragraph (c) and the requirements of subsections (5)
and (6) are observed in respect of the sound recordings; or
(ii) an appropriate witness
is present when the requirements of paragraphs (b) and (c) are complied
with and:
(A) a record
in writing is made of everything said by and to the accused as a result of
compliance with paragraph (c) while it is being said or as soon as
practicable thereafter; and
(B) the
appropriate witness signs a certificate in the prescribed form certifying that paragraphs (b)
and (c) were complied with in his or her presence and that the record is a full
and correct record; and
(e) before conducting the reading
referred to in paragraph (b), an explanation, in accordance with the
prescribed form, is given to the accused of the procedure that will be followed
for the purpose of compliance with that paragraph and paragraphs (c) and
(d).
(5) Where 2 sound recordings are made as
referred to in paragraph (2)(a) or subparagraph (4)(d)(i), the
investigating officer in charge of the making of the sound recordings shall:
(a) hand one of the sound recordings
to the accused;
(b) inform the accused that the other
sound recording will be retained by the Defence Force and may be used in
evidence; and
(c) advise the accused to make
arrangements for the safe‑keeping of the sound recording handed to him or her
so that it will be available for comparison with the sound recording retained
by the Defence Force and, if requested to do so by the accused, afford the
accused an opportunity of making arrangements for the safe‑keeping of the sound
recording on his or her behalf.
(6) Where a sound recording has been handed
to a person in accordance with subsection (5), the investigating officer
in charge of the investigation shall, upon request, provide, as soon as
practicable, reasonable facilities to the accused or the accused’s legal
practitioner to enable the sound recording to be reproduced in sound.
(7) For the purposes of subsection (1),
the requirements of subsection (4) shall be taken to be complied with in
respect of an interview if, where the explanation referred to in paragraph (4)(e)
is given to the accused after paragraph (4)(a) has been complied with in
respect of the interview, the actions of the accused prevent the following of
the procedure that would, but for this subsection, be required to be followed
for the purposes of compliance with paragraphs (4)(b), (c) and (d).
(8) In proceedings against a person before a
service tribunal, the burden of satisfying the service tribunal or, in the case
of a court martial, the judge advocate of the court martial, that, in relation
to evidence to which this section applies, the requirements of this section
have been complied with lies on the prosecution.
(9) Subject to the power of a service
tribunal, or, in the case of a court martial, the judge advocate of the court
martial, to exclude evidence:
(a) on the ground of unfairness to the
accused; or
(b) on the ground that it is evidence
of a confession not shown to have been made voluntarily; or
(c) otherwise in the interests of
justice;
the prosecution is not prevented from leading evidence of
a confession by reason only of anything said by the accused, during, or at the
end of, the reading to the accused of a record in writing containing the
confession, concerning the accuracy of the record, but this subsection does not
prevent a judge advocate from directing the members of a court martial with
respect to the weight to be accorded to the statement as evidence.
(10) A service tribunal or, in the case of a
court martial, the judge advocate of the court martial, may admit evidence of a
confession notwithstanding that the requirements of this section have not been
complied with, or that there is insufficient evidence of compliance with those
requirements, if, having regard to the nature of, and the reasons for, the non‑compliance
or insufficiency of evidence and any other relevant matters, the service
tribunal or the judge advocate is satisfied that, in the special circumstances
of the case, admission of the evidence would not be contrary to the interests
of justice.
(11) Where the judge advocate of a court
martial, in pursuance of subsection (10), permits evidence to be given
before the members of the court martial, the judge advocate shall, if he or she
considers that the interests of justice so require, inform the members of the
court martial of the non‑compliance with the requirements of this section, or
of the absence of sufficient evidence of compliance with those requirements,
and give the members of the court martial such warning concerning the evidence
as he or she thinks appropriate in the circumstances.
(12) A reference in this section to a multiple
sound recording apparatus is a reference to a sound recording apparatus:
(a) capable of making 2 or more
recordings of the same sound at the one time; or
(b) that, at the same time as, or
immediately after, it makes one recording, automatically makes a copy of the
recording.
(13) A reference in this section to an
interview includes a reference to any occasion on which anything is said by the
accused in the presence of an investigating officer.
(14) A reference in subsection (4) to an
appropriate witness is a reference to:
(a) a person included in a prescribed
class of persons;
(b) a legal practitioner advising the
accused; or
(c) a relative or friend of the
accused who is present at the reading referred to in paragraph (4)(b) at
the request or with the approval of the accused.
Division 4—Other investigative action
101L
Fingerprints, photographs etc.
(1) An investigating officer who is an
officer or warrant officer may take, or cause to be taken, prints of the hands,
fingers, feet or toes, sound recordings of the voice, samples of the
handwriting, or photographs, of a person who is in lawful custody in respect of
a service offence if:
(a) the investigating officer believes
on reasonable grounds that it is necessary to do so for the purpose of
establishing who the person is or of identifying the person as the person who
committed the service offence or of providing evidence of, or relating to, the
service offence;
(b) the investigating officer believes
on reasonable grounds that the person has committed another service offence and
the prints, recordings, samples or photographs are to be taken for the purpose
of identifying the person as the person who committed the other service offence
or of providing evidence of, or relating to, the other service offence; or
(c) the investigating officer has the
consent in writing of the person to do so.
(2) Except as provided in subsection (1)
or in accordance with an approval under subsection (4), or for the
purposes of section 101K or subsection 101N(5), an investigating officer
shall not:
(a) take, or cause to be taken, a
print, recording, sample or photograph of a kind referred to in subsection (1)
in respect of a person who is in custody in respect of a service offence; or
(b) require any other person to submit
to the taking of any such print, recording, sample or photograph.
(3) An investigating officer who is an
officer or warrant officer may:
(a) make application to an authorized
officer in person; or
(b) if it is impracticable for the
investigating officer to make application to an authorized officer in
person—make application to an authorized officer by telephone;
for approval to take, or cause to be taken, prints of the
hands, fingers, feet or toes, sound recordings of the voice, samples of the
handwriting, or photographs, of:
(c) a person who is in lawful custody
in respect of a service offence; or
(d) a person against whom proceedings
have been instituted under section 87 in respect of a service offence.
(4) The authorized officer may, if he or she
thinks it proper in all the circumstances, give his or her approval, in
writing, to the taking of the prints, recordings, samples or photographs, as
the case may be.
(5) Where the application was made to the
authorized officer by telephone, the authorized officer shall cause the
instrument of approval to be forwarded to the applicant.
(6) An investigating officer may use such
reasonable force as may be necessary in acting in accordance with subsection (1)
or in pursuance of an approval of an authorized officer under subsection (4).
101M
Identification by means of photographs
(1) Where a suspect in relation to a relevant
act in relation to a service offence is in custody, an investigating officer
investigating the service offence shall not show a photograph of a person, or a
series of photographs of persons, to a witness to the relevant act for the
purpose of ascertaining, or obtaining evidence of, the identity of a relevant
person in relation to the relevant act unless:
(a) the suspect has refused to take
part in an identification parade; or
(b) the holding of an identification
parade would be:
(i) unfair to the suspect;
or
(ii) impracticable in all
the circumstances.
(2) Where an investigating officer
investigating a service offence shows a photograph of a person, or a series of
photographs of persons, to a witness to a relevant act in relation to the
service offence for the purpose of ascertaining, or obtaining evidence of, the
identity of a relevant person in relation to the relevant act, the
investigating officer:
(a) shall not, in doing so, act
unfairly towards a suspect in relation to the relevant act or suggest to the
witness that a particular photograph is the photograph of such a suspect or of
a person who is being sought by the police or by the Defence Force in respect
of a civil court offence, an overseas offence or a service offence;
(b) shall keep, or cause to be kept, a
record identifying each photograph or series of photographs that is shown to
the witness; and
(c) shall, upon application by a
suspect in relation to the relevant act:
(i) provide the suspect
with a copy of the record so kept; and
(ii) afford the suspect a reasonable
opportunity to inspect each photograph or series of photographs shown to the
witness.
(3) Where a suspect in relation to a relevant
act in relation to a service offence is in custody, an investigating officer
investigating the service offence shall not show a picture of the kind known as
an Identikit picture or a picture of a similar kind, or a series
of pictures of the kind known as an Identikit picture or a series
of pictures of a similar kind, to a witness to the relevant act for the purpose
of assisting the witness to describe the features of a relevant person in
relation to the relevant act.
(4) Nothing in subsection (3) precludes
an investigating officer from obtaining the assistance of a witness to a
relevant act in relation to a service offence in the preparation of a picture
of the kind known as an Identikit picture or a picture of a
similar kind.
(5) Where, after an investigating officer
investigating a service offence has shown a witness to a relevant act in
relation to the service offence a picture or series of pictures for the purpose
of assisting the witness to describe the features of a relevant person in
relation to the relevant act, a suspect in relation to the relevant act comes
into custody, the investigating officer in charge of investigating the service
offence shall, unless it is impracticable to do so, cause the witness to attend
an identification parade in relation to the suspect.
(6) Where, after a witness to a relevant act
in relation to a service offence has been shown a picture or series of pictures
for the purpose of assisting the witness to describe the features of a relevant
person in relation to the relevant act, a person is charged with the service
offence, the investigating officer in charge of investigating the service
offence shall, upon application by the person, provide the person with
particulars of the picture or series of pictures that was shown to the witness
and the comments (if any) of the witness concerning the picture or series of
pictures.
(7) Where a suspect in relation to a relevant
act in relation to a service offence is in custody and an investigating officer
investigating the service offence believes on reasonable grounds that a person
who is not in custody is a relevant person in relation to the relevant act:
(a) subsection (1) shall not be
taken to prevent an investigating officer from showing a photograph of a
person, or a series of photographs of persons, to a witness to the relevant act
for the purpose of ascertaining, or obtaining evidence of, the identity of the
other person; and
(b) subsection (3) shall not be
taken to prevent an investigating officer from showing a picture of the kind
known as an Identikit picture or a picture of a similar kind, or
a series of pictures of the kind known as an Identikit picture or
a series of pictures of a similar kind, to a witness to the relevant act for
the purpose of assisting the witness to describe the features of a relevant
person in relation to the relevant act (other than the suspect).
101N
Identification parades
(1) An investigating officer investigating a
service offence shall not cause or permit an identification parade to be held
for the purpose of ascertaining whether a witness to a relevant act in relation
to the service offence can identify a suspect in relation to the relevant act
as a relevant person in relation to the relevant act unless the suspect has
agreed to the holding of the parade and has been informed by an investigating
officer in writing in a language in which the suspect is reasonably fluent and,
if practicable, orally in such a language:
(a) that the suspect is entitled to
refuse to agree to the holding of the parade;
(b) that, if the suspect does not
agree to the holding of the parade and take part in the parade, evidence may be
given, in any proceedings with respect to the service offence, of any
identification of the suspect by the witness as a result of:
(i) having seen a
photograph or series of photographs; or
(ii) having seen the
suspect otherwise than during an identification parade;
(c) that, if the suspect does take
part in the identification parade, evidence may be given, in any proceedings
with respect to the service offence:
(i) of any identification
made by the witness;
(ii) of any doubts
expressed by the witness, during or immediately following the holding of the
parade; and
(iii) of any unfairness in
the conducting of the parade; and
(d) that the suspect may have present,
during the holding of the parade, a legal practitioner or other person of his
or her choice if arrangements can be made for the legal practitioner or other
person to be present within a reasonable time.
(2) Where the investigating officer informs
the suspect as provided in subsection (1), the investigating officer shall
ask the suspect to sign an acknowledgment, in accordance with the prescribed
form, of the fact that the suspect has been so informed and of the date on
which, and the time at which, the suspect was so informed.
(3) Where it is necessary, in proceedings
with respect to a service offence, for a service tribunal to determine whether
an investigating officer has informed a person as provided in subsection (1)
and an acknowledgment of the kind referred to in subsection (2), signed by
the person, is not produced in evidence, the service tribunal shall presume,
unless the contrary is proved, that the person was not so informed.
(4) Where an identification parade is held in
relation to a suspect in relation to a relevant act in relation to a service
offence, for the purpose of ascertaining whether a witness to the relevant act
can identify the suspect as a relevant person in relation to the relevant act,
the investigating officer responsible for conducting the parade:
(a) shall arrange and conduct the
parade in such a manner as will not unfairly prejudice the suspect; and
(b) shall, as far as the investigating
officer is able to do so, ensure that nothing in the arranging and conducting
of the parade, or in what happens during the conducting of the parade,
suggests, or is likely to suggest, to the witness which of the persons included
in the parade is the suspect.
(5) The investigating officer responsible for
conducting the identification parade shall:
(a) cause:
(i) at least one
photograph, if practicable in colour, to be taken of the identification parade
while it is being conducted; or
(ii) a videotape recording
of the parade to be taken; and
(b) cause to be recorded particulars
of:
(i) what happens during
the parade (including particulars of any words spoken by the witness and of any
doubts expressed, and any gestures made, by the witness); and
(ii) the name, address and
occupation of each person (other than the suspect) who is included in the
parade and consents to the recording of those particulars.
(6) The suspect is entitled, upon request to
the investigating officer responsible for conducting the identification parade,
to be provided with:
(a) if a photograph of the
identification parade has been taken in pursuance of paragraph (5)(a)—a
copy of the photograph;
(b) if a videotape recording of the
identification parade has been taken in pursuance of paragraph (5)(a)—reasonable
facilities to enable the videotape recording to be reproduced in images and, if
practicable, sound; and
(c) a copy of the record made in
pursuance of subparagraph (5)(b)(i).
101P
Searches of arrested persons
(1) An investigating officer may, upon
lawfully taking a person into custody in respect of a service offence, search
the person, the clothing the person is wearing and any property under his or
her immediate control if the investigating officer believes on reasonable
grounds that it is necessary to do so:
(a) for the purpose of ascertaining
whether there is concealed on the person, in his or her clothing or in that
property a weapon or other thing capable of being used to:
(i) inflict death or
bodily injury; or
(ii) assist the person to
escape from custody; or
(b) for the purpose of preventing the
concealment, loss or destruction of evidence of, or relating to, the service
offence.
(2) Subsection (1) does not authorize
the investigating officer to remove, or to require the person to remove, any
clothing that the person is wearing.
(3) The investigating officer may seize:
(a) any weapon or other thing of a
kind referred to in paragraph (1)(a); or
(b) any thing that the investigating
officer has reasonable grounds to believe is a thing:
(i) with respect to which
a service offence has been committed;
(ii) that will afford
evidence of the commission of a service offence; or
(iii) that was used, or is
intended to be used, for the purpose of committing a service offence;
being a weapon or thing found in the course of the search.
(4) Nothing in this section shall be taken to
affect the operation of section 95A or 178A.
101Q
Medical examinations
(1) An investigating officer may arrange for
a medical practitioner to examine a person in lawful custody in respect of a
service offence for the purpose of securing evidence of, or relating to, the
service offence if, and only if, the investigating officer believes on
reasonable grounds that the examination is likely to provide such evidence and:
(a) the person has given his or her
consent in writing; or
(b) an authorized officer has, under subsection (4),
approved the examination.
(2) An investigating officer may arrange for
a medical practitioner to take a specimen from a person in lawful custody in
respect of a service offence for the purpose of having the specimen analysed or
otherwise examined if, and only if, the investigating officer believes on
reasonable grounds that analysis or other examination of the specimen is likely
to provide evidence of, or relating to, the service offence and:
(a) the person has given his or her
consent in writing; or
(b) an authorized officer has, under subsection (4),
approved the taking of the specimen.
(3) An investigating officer may:
(a) make application to an authorized
officer in person; or
(b) if it is impracticable for the
investigating officer to make application to an authorized officer in person—make
application to an authorized officer by telephone;
for an approval for the purpose of subsection (1)
or (2).
(4) The authorized officer may, if he or she
is satisfied that the investigating officer has reasonable grounds for the
belief referred to in subsection (1) or (2), whichever is applicable, give
his or her approval by instrument in writing.
(4A) The authority conferred by subsection (4)
on an authorised officer only extends to the giving of approval in respect of a
medical examination of a kind, or the taking of a specimen, that is reasonably
necessary for the purpose of obtaining evidence relating to the presence or
absence of a narcotic substance in the blood or urine of a person.
(4B) In subsection (4A), narcotic
substance has the same meaning as in the Customs Act 1901.
(4C) In considering whether to give approval
under subsection (4), an authorised officer may take into account the
physical health of the person to whom the application for approval relates.
(5) Where the application was made to the
authorized officer by telephone, the authorized officer shall cause the
instrument of approval to be forwarded to the investigating officer.
(6) Before arranging for a medical
practitioner to examine a person in lawful custody or to take a specimen from
such a person, an investigating officer shall inquire whether the person wishes
to have a medical practitioner of the person’s choice present during the
examination or the taking of the specimen, as the case may be, and, if the
person states that the person does so wish, shall:
(a) provide reasonable facilities to
enable the person to arrange for a medical practitioner of the person’s choice
to be so present; and
(b) unless it would be impracticable
to do so—arrange for the examination to be made or the specimen to be taken, as
the case may be, at a time when the medical practitioner chosen by the person
can be present.
(7) Subsection (6) does not apply in
relation to a person in custody in respect of a service offence where an
investigating officer believes on reasonable grounds that, if the examination
of the person or the taking of a specimen from the person, as the case
requires, is delayed until a time when a medical practitioner chosen by the
person can be present, evidence of, or relating to, the service offence may be
lost or destroyed or may otherwise disappear.
(8) An investigating officer may use such
reasonable force as is necessary to take a person to a medical practitioner for
the purpose of an examination of the person in accordance with subsection (1)
or the taking of a specimen from the person in accordance with subsection (2),
as the case requires.
(9) Where, in accordance with this section, a
medical practitioner examines a person in lawful custody in respect of a
service offence or takes a specimen from such a person and:
(a) no proceedings in respect of the
service offence, or a related service offence, are instituted against the
person:
(i) within a period of 12
months after the examination is made or the specimen is taken, as the case may
be; or
(ii) if that period is
extended under subsection (10)—within that period as from time to time so
extended; or
(b) proceedings in respect of the
service offence, or a related service offence, are instituted within that
period, but a service tribunal acquits the person of a charge of the service
offence, or a related service offence, or dismisses such a charge;
the person having the custody of the report of the
examination or the report of the analysis or other examination of the specimen,
as the case may be, and any investigating officer having the custody of a copy
of such a report, shall cause it to be destroyed.
(10) An authorized officer may, upon
application by a person having the custody of the report of an examination by a
medical practitioner of a person in lawful custody in respect of a service
offence, or of the report of an analysis or other examination of a specimen
taken from such a person, or by an investigating officer having the custody of
a copy of such a report, and upon being satisfied, by information on oath or
affirmation, that there are special reasons for doing so, extend, in respect of
the examination or the analysis or other examination of the specimen, as the
case may be, the period referred to in subparagraph (9)(a)(i), or that
period as previously extended under this subsection.
(11) Where a person in lawful custody in
respect of a service offence is examined by a medical practitioner in
accordance with subsection (1), or a specimen is taken from such a person
in accordance with subsection (2), an investigating officer concerned in
the investigation of the service offence, shall, upon application by the
person, cause the person to be provided with a copy of the report of the
medical practitioner in respect of the examination or the report of the
analysis or other examination of the specimen, as the case may be.
(12) Where a medical practitioner makes an
examination of a person, or takes a specimen from a person, in pursuance of
arrangements duly made, or purporting to be duly made, by an investigating
officer under this section, proceedings do not lie against the medical
practitioner, or against any other person acting under his or her direction or
otherwise assisting him or her, in respect of anything reasonably done in good
faith by the medical practitioner or by the other person for the purpose of
making the examination or taking the specimen, as the case may be.
(13) Nothing in this section:
(a) prevents a medical practitioner
from examining, or taking a specimen from, a person at the request of the
person or for the purpose of treating the person for illness or an injury; or
(b) affects the power of a service
tribunal or, in the case of a court martial, the judge advocate of the court
martial, to exclude evidence obtained through unreasonable force or inhuman
treatment.
(14) In this section, specimen,
in relation to a person, includes a sample of, or taken from, the body of the
person.
(15) In the application of this section to a
person who is in custody at a place outside Australia, a reference to a medical
practitioner includes a reference to a person who is registered or licensed as
a medical practitioner under:
(a) a law of that place; or
(b) a law of a prescribed place;
being a law that provides for the registration or
licensing of medical practitioners.
101QA
Offence of refusing to submit to medical examination etc.
(1) If:
(a) a person is in lawful custody in
respect of a service offence; and
(b) an investigating officer has
arranged for a medical practitioner to examine the person for the purpose of
securing evidence of, or relating to, the service offence; and
(c) either:
(i) the person has given
his or her consent in writing to the examination; or
(ii) an authorised officer
has, under subsection 101Q(4), approved the examination; and
(d) the investigating officer has
informed the person that refusal or failure by him or her to submit to the
examination will constitute an offence; and
(e) after having been so informed, the
person refuses or fails to submit to the examination;
the person is guilty of an offence for which the maximum
punishment is imprisonment for 6 months.
(1A) It is a defence to a charge under subsection (1)
if the person proves that he or she had a reasonable excuse for refusing or
failing to submit to the examination.
Note: The defendant bears a legal burden in relation
to the matter in subsection (1A). See section 13.4 of the Criminal
Code.
(2) If:
(a) a person is in lawful custody in
respect of a service offence; and
(b) an investigating officer has
arranged for a medical practitioner to take a specimen from the person; and
(c) the officer believes on reasonable
grounds that analysis or other examination of the specimen is likely to provide
evidence of, or relating to, the service offence; and
(d) either:
(i) the person has given
his or her consent in writing to the taking of the specimen; or
(ii) an authorised officer
has, under subsection 101Q(4), approved the taking of the specimen; and
(e) the investigating officer has
informed the person that refusal or failure by him or her:
(i) to submit to the
taking of the specimen; or
(ii) to do any act
reasonably necessary to enable the specimen to be taken;
will constitute an offence; and
(f) after being so informed, the
person:
(i) refuses or fails to
submit to the taking of the specimen; or
(ii) refuses or fails to do
an act reasonably necessary to enable the specimen to be taken;
the person is guilty of an offence for which the maximum
punishment is imprisonment for 6 months.
(2A) It is a defence to a charge under subsection (2)
if the person proves that he or she had a reasonable excuse for refusing or
failing to do the act mentioned in subparagraph (2)(f)(i) or (ii).
Note: The defendant bears a legal burden in relation
to the matter in subsection (2A). See section 13.4 of the Criminal
Code.
(3) It is a reasonable excuse for the
purposes of subsection (1A) or (2A) that a person has a medical condition
that may be aggravated by the conduct of the medical examination or the taking
of the specimen, as the case requires.
(4) Nothing in this section renders a person
guilty of an offence for refusing to submit to a medical examination or the
taking of a specimen to the extent that the person proves that the examination
or the taking of the specimen, as the case may be, was not reasonably necessary
for the purpose of obtaining evidence relating to the presence or absence of a
narcotic substance in the blood or urine of a person.
Note: The defendant bears a legal burden in relation
to the matter in subsection (4). See section 13.4 of the Criminal
Code.
(5) In subsection (4), narcotic
substance has the same meaning as in the Customs Act 1901.
101R
Application of Division
This Division shall not be taken to
prohibit an investigating officer from taking investigative action of a kind
not referred to in this Division where the taking of that action is not
inconsistent with a provision of this Division.
Division 5—Rights of persons charged with service offences
101S Persons
to be cautioned
Immediately after a person in custody is
charged with a service offence, the investigating officer in charge of
investigating the service offence shall caution the person, or cause the person
to be cautioned, in a language in which the person is reasonably fluent, in
writing, and also, if practicable, orally, that the person is not obliged to,
but may if the person wishes to do so, answer any questions, or do any thing,
asked of the person by an investigating officer and that anything said or done
by the person may be used in evidence.
101T
Questioning of persons charged with service offences
(1) An investigating officer shall not, after
a person is charged with, or summoned in respect of, a service offence, ask the
person any question in relation to the service offence other than:
(a) a question with respect to an
ambiguity in an answer previously made by the person to a question asked of the
person by an investigating officer, being a question asked before the person
was charged with, or summoned in respect of, the service offence or duly asked
in accordance with this section after the person was so charged;
(b) a question with respect to an
ambiguity in a statement made by the person, whether before or after the person
was charged with, or summoned in respect of, the service offence; or
(c) a question necessary to assist the
investigating officer in dealing with an emergency.
(2) Subsection (1) shall not be taken to
prevent an investigating officer from asking a person who has been charged
with, or summoned in respect of, a service offence, whether the person wishes
to make a statement with respect to any information or other evidence of, or
relating to, the service offence, that, at the time when the person was so
charged or summoned, was not in the possession of any investigating officer
concerned in the investigation of the offence, but nothing in this subsection
shall be taken to permit an investigating officer to ask such a person any
further question other than a question with respect to an ambiguity in a
statement referred to in this subsection.
(3) Immediately before an investigating
officer asks a person who has been charged with, or summoned in respect of, a
service offence any questions relating to the service offence, the
investigating officer shall give the person a caution of the kind referred to
in section 101S or draw the attention of the person to the caution
previously given to the person in accordance with that section, as the case
requires.
(4) Where a person who has been charged with,
or summoned in respect of, a service offence voluntarily proposes to make, or
commences to make, a statement to an investigating officer in relation to the
service offence (including a statement of the kind referred to in subsection (2)),
the investigating officer shall caution the person in a language in which the
person is reasonably fluent, in writing, and also, if practicable, orally,
before the person commences to make the statement or, if it is not practicable
to do so, as soon as practicable after the person commences to make the
statement, that the person is not obliged to, but may if the person wishes,
make a statement and that the statement may be used in evidence.
101U
Persons charged with same service offence
(1) Where, after 2 or more persons have been
charged with the same service offence, one of those persons furnishes to an
investigating officer a written statement in relation to the service offence,
not being a statement made jointly with the other person or all the other
persons, as the case may be, charged with the service offence, the
investigating officer to whom the statement is furnished may cause a copy of
the statement to be furnished to the other person or each of the other persons,
as the case may be, charged with the service offence who did not join in making
the statement, but shall not, subject to subsection (2), read the
statement to the other person or any of those other persons, as the case may
be, or invite, either orally or otherwise, the other person or any of those
other persons, as the case may be, to comment on the statement.
(2) Where a person to whom a copy of a
statement is furnished in accordance with subsection (1) is unable for any
reason to read the copy of the statement, the investigating officer shall:
(a) in a case where the person is not
reasonably fluent in the language in which the statement is written—cause the
statement to be translated into a language in which the person is reasonably
fluent and cause a copy of the translation to be furnished to the person and,
if the person is unable to read the copy of the translation and the person
consents, read the copy of the translation, or cause the copy of the
translation to be read, to the person; or
(b) in any other case—if the person
consents, read the copy of the statement, or cause the copy of the statement to
be read, to the person.
(3) Where a person to whom a copy of a
statement is furnished in accordance with subsection (1) voluntarily
proposes to make, or commences to make, a statement to an investigating officer
in relation to the relevant service offence by way of comment on the first‑mentioned
statement, the investigating officer shall caution the person in a language in
which the person is reasonably fluent, in writing, and also, if practicable,
orally, before the person commences to make the statement or, if it is not
practicable to do so, as soon as practicable after the person commences to make
the statement, that the person is not obliged to, but may if the person wishes,
make a statement and that the statement may be used in evidence.
(4) A reference in this section to a written
statement includes a reference to a record in writing of an interview, being an
interview in respect of which subsection 101K(3) has been complied with.
Division 6—Search and seizure
101V
Interpretation
(1) For the purposes of this Division, a
thing is connected with a particular service offence if it is:
(a) a thing with respect to which the
service offence has been committed;
(b) a thing that will afford evidence
of the commission of the service offence; or
(c) a thing that was used, or is
intended to be used, for the purpose of committing the service offence.
(2) A reference in a provision of this
Division other than subsection 101W(3) to land or premises is a reference to
service land or premises on service land (other than land or premises in Australia occupied by, or comprising, married quarters), as the case requires.
(3) A reference in a provision of this
Division other than subsection 101W(3) to a ship, aircraft or vehicle is a
reference to:
(a) a service ship, service aircraft
or service vehicle, as the case requires; or
(b) a ship, aircraft or vehicle, as
the case requires, on service land.
101W
Search and seizure
(1) An investigating officer may search a
defence member or defence civilian, or clothing being worn by, or property
under the immediate control of, a defence member or defence civilian, and may
seize any thing found in the course of the search that the investigating
officer believes on reasonable grounds to be connected with a service offence
if, and only if, the search and seizure is made by the investigating officer:
(a) in pursuance of a search warrant
issued under section 101X or 101Y;
(b) in accordance with section 101P
or 101Z; or
(c) after obtaining, in accordance
with section 101ZA, the consent of the defence member or defence civilian,
as the case may be, to the search.
(2) An investigating officer may enter upon
land, or upon or into premises or a ship, aircraft or vehicle, and may search
the land, premises, ship, aircraft or vehicle and may seize any thing found in
the course of the search that the investigating officer believes on reasonable
grounds to be connected with a service offence if, and only if, the entry,
search and seizure is made by the investigating officer:
(a) in pursuance of a search warrant
issued under section 101X or 101Y;
(b) in accordance with section 101Z;
or
(c) after obtaining, in accordance
with section 101ZA, the consent of the occupier of the land or premises or
of the person in charge of the ship, aircraft or vehicle, as the case may be,
to the entry.
(3) An investigating officer may:
(a) enter upon land, not being land
referred to in subsection (2), or upon or into premises or a ship,
aircraft or vehicle, not being premises or a ship, aircraft or vehicle referred
to in subsection (2);
(b) search the land, premises, ship,
aircraft or vehicle; and
(c) seize any thing found in the
course of the search that the investigating officer believes on reasonable
grounds to be connected with a service offence;
if, and only if, the entry, search and seizure are made by
the investigating officer after obtaining, in accordance with section 101ZA,
the consent of the occupier of the land or premises or of the person in charge
of the ship, aircraft or vehicle, as the case may be, to the entry.
101X
Search warrants
(1) Where an information on oath or
affirmation is laid before an authorized officer alleging that there are
reasonable grounds for suspecting that a thing of a particular kind connected
with a particular service offence may be found on a defence member or defence
civilian, or in clothing being worn by, or property under the immediate control
of, a defence member or defence civilian, and the information sets out those
grounds, the authorized officer may issue a search warrant authorizing an
investigating officer named in the warrant, with such assistance as he or she
thinks necessary and if necessary by force:
(a) to search the defence member or
defence civilian, as the case may be, and clothing being worn by, and property
under the immediate control of, the defence member or defence civilian, as the
case may be, for things of that kind; and
(b) to seize any thing of that kind found
in the course of the search that he or she believes on reasonable grounds to be
connected with the service offence.
(2) Where an information on oath or
affirmation is laid before an authorized officer alleging that there are
reasonable grounds for suspecting that there may be, at that time or within the
next following 24 hours, upon any land or upon or in any premises, ship,
aircraft or vehicle, a thing of a particular kind connected with a particular
service offence, and the information sets out those grounds, the authorized
officer may issue a search warrant authorizing an investigating officer named
in the warrant, with such assistance as he or she thinks necessary and if
necessary by force:
(a) to enter upon the land or upon or
into the premises, ship, aircraft or vehicle, as the case may be;
(b) to search the land, premises,
ship, aircraft or vehicle, as the case may be, for things of that kind; and
(c) to seize any thing of that kind
found in the course of the search that he or she believes on reasonable grounds
to be connected with the service offence.
(3) An authorized officer shall not issue a
warrant under subsection (1) or (2) unless:
(a) the informant or some other person
has given to the authorized officer, either orally or by affidavit, such
further information (if any) as the authorized officer requires concerning the
grounds on which the issue of the warrant is being sought; and
(b) the authorized officer is
satisfied that there are reasonable grounds for issuing the warrant.
(4) There shall be stated in a warrant issued
under this section:
(a) in the case of a warrant issued
under subsection (1):
(i) a statement of the
purpose for which the warrant is issued, which shall include a reference to the
nature of the service offence in relation to which the search is authorized;
(ii) a description of the
kind of things authorized to be seized; and
(iii) a date, not being
later than one month after the day on which the warrant is issued, upon which
the warrant ceases to have effect; and
(b) in the case of a warrant issued
under subsection (2):
(i) a statement of the
purpose for which the warrant is issued, which shall include a reference to the
nature of the service offence in relation to which the entry and search are
authorized;
(ii) whether entry is
authorized to be made at any time of the day or night or only during specified
hours of the day or night;
(iii) a description of the
kind of things authorized to be seized; and
(iv) a date, not being later
than one month after the day on which the warrant is issued, upon which the
warrant ceases to have effect.
(5) Where:
(a) in the course of searching, in
accordance with a warrant issued under this section or section 101Y, for
things connected with a particular service offence, being things of a kind
specified in the warrant, an investigating officer finds:
(i) any thing that he or
she believes on reasonable grounds to be connected with the service offence,
although not of the kind specified in the warrant; or
(ii) any thing that he or
she believes on reasonable grounds to be connected with another service
offence; and
(b) the investigating officer believes
on reasonable grounds that it is necessary to seize that thing in order to:
(i) prevent its
concealment, loss or destruction; or
(ii) its use in committing,
continuing or repeating a service offence;
the warrant shall be deemed to authorize the investigating
officer to seize that thing.
(6) An investigating officer acting in
accordance with a warrant issued under subsection (1) may:
(a) require a person to remove any
clothing that the person is wearing; and
(b) if the person refuses or fails to
comply with the requirement—remove the clothing.
(7) A person shall not be searched by, or in
the presence of, a person who is not of the same sex as the first‑mentioned
person.
101Y
Search warrants may be granted by telephone
(1) Where, by reason of circumstances of
urgency, an investigating officer considers it necessary to do so, the
investigating officer may make application to an authorized officer, by
telephone, for a search warrant.
(2) Before making the application, the
investigating officer shall prepare an information of the kind referred to in
subsection 101X(1) or (2), as the case requires, being an information that sets
out the grounds on which the issue of the warrant is being sought, but may, if
it is necessary to do so, make the application before the information has been
sworn or affirmed.
(3) Where, upon application under subsection (1),
an authorized officer is satisfied, after having:
(a) considered the terms of the
information prepared in accordance with subsection (2); and
(b) had given to him or her such
further information (if any) as he or she requires concerning the grounds on
which the issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant,
the authorized officer shall complete and sign a search warrant of such a kind
as he or she would have issued under section 101X if the application had
been made in accordance with that section.
(4) Where an authorized officer signs a
warrant under subsection (3):
(a) the authorized officer shall:
(i) inform the
investigating officer of:
(A) the
terms of the warrant; and
(B) the date
on which, and the time at which, it was signed; and
(ii) record on the warrant
his or her reasons for granting the warrant; and
(b) the investigating officer shall:
(i) complete a form of
warrant in the terms furnished to him or her by the authorized officer; and
(ii) write on the form of
warrant:
(A) the name
of the authorized officer; and
(B) the date
on which, and the time at which, the warrant was signed.
(5) Where an investigating officer completes
a form of warrant in accordance with paragraph (4)(b), the investigating
officer shall, not later than the day next following the date of expiry of the
warrant, send to the authorized officer who signed the warrant the form of
warrant and the information duly sworn or affirmed by him or her in connection
with the issue of the warrant.
(6) Upon receipt of the form of warrant and
information, the authorized officer shall attach to them the warrant.
(7) A form of warrant duly completed by an
investigating officer in accordance with paragraph (4)(b) is, if it is in
the terms of the warrant signed by the authorized officer, authority for any
search, seizure or entry that the warrant so signed authorizes.
(8) Where it is material, in any action or
proceeding, for a civil court or service tribunal to be satisfied that a
search, seizure or entry was authorized by this section, and a warrant signed
by an authorized officer in accordance with this section authorizing the
search, seizure or entry is not produced in evidence, the civil court or
service tribunal, as the case may be, shall presume, unless the contrary is
proved, that the search, seizure or entry was not authorized by such a warrant.
101Z
Searches in emergencies
(1) An investigating officer may:
(a) search a defence member or defence
civilian, or clothing being worn by, or property under the immediate control
of, a defence member or defence civilian, whom the investigating officer
believes on reasonable grounds to be carrying anything connected with a service
offence; or
(b) enter upon land, or upon or into
premises or a ship, aircraft or vehicle, on or in which the investigating
officer believes on reasonable grounds that any thing connected with a service
offence is situated and search the land, premises, ship, aircraft or vehicle,
as the case may be;
and may seize any such thing found in the course of the
search if:
(c) the investigating officer believes
on reasonable grounds that it is necessary to do so in order to:
(i) prevent its
concealment, loss or destruction; or
(ii) prevent its use in
committing, continuing or repeating a service offence; and
(d) the search or entry and search, as
the case may be, is made in circumstances of such seriousness and urgency as to
require and justify immediate search or entry and search, as the case may be,
without the authority of a warrant issued under section 101X or 101Y.
(2) Where an investigating officer believes
on reasonable grounds that a defence member or defence civilian is, without
lawful authority or reasonable excuse, carrying an offensive weapon, or any
thing connected with a serious service offence, the investigating officer may:
(a) stop the defence member or defence
civilian;
(b) search the defence member or
defence civilian, and the clothing being worn by, and property under the
immediate control of, the defence member or defence civilian, as the case may
be; and
(c) seize any such weapon or thing
found in the course of the search.
(3) Where an investigating officer believes
on reasonable grounds that an offensive weapon, or any thing connected with a
serious service offence, is in a ship, aircraft or vehicle, the investigating
officer may:
(a) stop the ship, aircraft or
vehicle;
(b) enter upon or into the ship,
aircraft or vehicle;
(c) search the ship, aircraft or
vehicle; and
(d) seize any such weapon or thing
found in the course of the search.
(4) An investigating officer conducting a
search in accordance with paragraph (1)(a) may:
(a) require a person to remove any
clothing that the person is wearing; and
(b) if the person refuses or fails to
comply with the requirement—remove the clothing.
(5) A person shall not be searched by, or in
the presence of, a person who is not of the same sex as the first‑mentioned
person.
(6) In subsections (2) and (3), offensive
weapon means any thing:
(a) made or adapted for use for causing
death or bodily injury; or
(b) intended by the person having it
for such use.
101ZA
Consent to search
(1) Before obtaining the consent of a person
for the purposes of section 101W, an investigating officer shall inform
the person that the person may refuse to give his or her consent.
(2) An investigating officer who obtains the
consent of a person for the purposes of section 101W shall ask the person
to sign an acknowledgement, in accordance with the prescribed form:
(a) of the fact that the person has
been informed that the person may refuse to give his or her consent;
(b) of the fact that the person has
voluntarily given his or her consent; and
(c) of the date on which, and the time
at which, the person gave his or her consent.
(3) A search or entry and search, as the case
requires, by an investigating officer by virtue of the consent of a person is
not lawful unless the person concerned voluntarily consented to the search or
entry and search, as the case may be.
(4) Where it is material, in any action or
proceeding, for a civil court or service tribunal to be satisfied of the
voluntary consent of a person for the purposes of section 101W and an
acknowledgment of the kind referred to in subsection (2) signed by the
person is not produced in evidence, the civil court or service tribunal, as the
case may be, shall presume, unless the contrary is proved, that the person did
not give such a voluntary consent.
Division 7—Exclusion of evidence
101ZB
Exclusion of evidence illegally obtained
(1) Where, in proceedings before a service
tribunal in respect of a service offence, upon objection being taken to the
admission of evidence on the ground that the evidence was obtained in
contravention of, or in consequence of a contravention of, a provision of this
Part, the service tribunal or, in the case of a court martial, the judge
advocate of the court martial, is satisfied, on the balance of probabilities
but having regard to any provision of this Act or the regulations relating to
proof of particular matters, that the evidence was so obtained, the service
tribunal or judge advocate must not admit the evidence unless the service
tribunal or judge advocate is of the opinion that:
(a) admission of the evidence would
substantially benefit the public interest in the administration of justice; and
(b) this benefit would outweigh any
prejudice to the rights and freedoms of any person, including the accused
person, that has occurred, or is likely to occur, as a result of the
contravention or the admission of the evidence.
(2) The matters that the service tribunal or
judge advocate may have regard to in deciding whether to admit the evidence
include:
(a) the seriousness of the service
offence, the urgency and difficulty of detecting the offender and the need to preserve
evidence of the facts;
(b) the nature and seriousness of the
contravention;
(c) the effect that admission of the
evidence in the particular circumstances of the case is likely to have on the
operation of the provisions of this Part;
(d) the effect (if any) of the
contravention on the cogency of the evidence so obtained; and
(e) the extent to which the evidence
might have been obtainable lawfully.
(3) This section is in addition to, and not
in substitution for, any other law or rule under which a service tribunal or,
in the case of a court martial, the judge advocate of the court martial, may
refuse to admit evidence.
(4) Subsection (3) shall not be taken to
authorize a service tribunal or judge advocate, in proceedings in respect of a
service offence, to refuse to admit a statement in evidence on the ground that
an investigating officer contravened the rules known as the Judge’s Rules.
(5) Nothing in this section derogates from
the application of section 101J or 101K.
Division 8—Application of Part
101ZC
Application of Part
Nothing in this Part shall be taken to
limit or restrict, by implication:
(a) any action that may be taken, in
accordance with any other law of the Commonwealth or the law of a State or
Territory, for a purpose not connected with the investigation of a service
offence; or
(b) any action that a constable, or
any other person who is not an investigating officer, may take, in accordance
with any other law of the Commonwealth or the law of a State or Territory, for
the purpose of investigating a service offence.
Part VII—Service tribunals
Division 1—Director of Military Prosecutions
103
Courses open to Director of Military Prosecutions
(1) Where a charge is referred to the
Director of Military Prosecutions under subsection 105A(2), paragraph 109(b) or
110(1)(d), subsection 129D(2) or 130(5), section 131A or subsection
141(8), 145(1) or (3) or 194(7), the Director of Military Prosecutions may:
(a) direct that the charge be not
proceeded with;
(b) if the charge is a charge that is
within the jurisdiction of a superior summary authority or a commanding officer
to try (other than a charge referred under subsection 145(1) or (3))—refer the
charge to the superior summary authority or the commanding officer for trial;
(c) request the Registrar to refer the
charge to a Defence Force magistrate for trial; or
(d) request the Registrar to convene a
general court martial or a restricted court martial to try the charge.
Note 1: See also paragraph 87(1)(c) for additional
powers that may be exercised by the Director of Military Prosecutions in
relation to a charge.
Note 2: A charge referred to a Defence Force magistrate
must be referred to the magistrate nominated by the Judge Advocate General: see
subsection 129C(1).
(2) If, under the Defence Force Discipline
Appeals Act 1955, the Defence Force Discipline Appeal Tribunal or the
Federal Court of Australia orders a new trial of a person, the Director of
Military Prosecutions may request the Registrar to refer the charge to a court
martial or Defence Force magistrate for trial.
(2A) If, under section 160 or 166, a
reviewing authority orders a new trial of a person, the Director of Military
Prosecutions may request the Registrar to refer the charge that was the subject
of the proceedings to which the order relates to a court martial or Defence
Force magistrate for a new trial.
(3) Nothing in subsection (2) or (2A) requires
the Director of Military Prosecutions to proceed with a new trial of a person
unless the Director of Military Prosecutions is satisfied that there is
sufficient cogent evidence to justify a new trial of the person.
(4) If under subsection 111C(1) or 131AA(1):
(a) an accused person elects to be
tried by a court martial or Defence Force magistrate; and
(b) the summary authority refers the
charge to the Director of Military Prosecutions;
the Director of Military Prosecutions may:
(c) direct that the charge be not
proceeded with; or
(d) request the Registrar to refer the
charge to a Defence Force magistrate for trial; or
(e) request the Registrar to convene a
general court martial or a restricted court martial to try the charge.
Division 2—Summary authorities
104
Interpretation
In this Division, prescribed
offence means:
(a) an offence against section 61
in relation to which the relevant Territory offence is:
(i) treason, murder,
manslaughter or bigamy; or
(ii) an offence against section 51,
52, 53, 54 or 55 of the Crimes Act 1900 of the Australian Capital
Territory, in its application to the Jervis Bay Territory, as amended or
affected by Ordinances in force in that Territory; or
(iii) an offence prescribed
for the purposes of this subparagraph; or
(iv) an ancillary Territory
offence in relation to a Territory offence referred to in subparagraph (i),
(ii) or (iii); or
(b) a service offence prescribed for
the purposes of this paragraph; or
(c) a service offence that is an
ancillary offence in relation to an offence referred to in paragraph (b).
105
Appointment of certain summary authorities
(1) The Chief of the Defence Force or a
service chief may, by instrument in writing, appoint an officer, or each
officer included in a class of officers, to be a superior summary authority.
(2) A commanding officer may, by instrument
in writing, appoint an officer, or each officer included in a class of
officers, to be a subordinate summary authority.
105A
Referral of charge to Director of Military Prosecutions before dealing with
charge under section 109, 110 or 111
(1) This section applies if:
(a) a person has been charged with a
service offence; and
(b) the charge has not yet been dealt
with under section 109, 110 or 111.
(2) The person’s commanding officer, or a
superior officer in relation to the person’s commanding officer, may refer the
charge to the Director of Military Prosecutions.
(3) Subject to paragraph 103(1)(b), if a
charge is referred to the Director of Military Prosecutions under this section,
the charge must not be dealt with under section 109, 110 or 111.
Note: Under paragraph 103(1)(b), the Director of
Military Prosecutions may refer a charge that is referred to him or her under
this section to a superior summary authority or a commanding officer for trial.
106
Jurisdiction of superior summary authority
A superior summary authority has
jurisdiction to try a charge against:
(a) an officer who is 2 or more ranks
junior to him or her, being an officer of or below the rank of rear admiral,
major‑general or air vice‑marshal; or
(b) a warrant officer; or
(c) a person who is not a member of
the Defence Force;
in respect of a service offence that is not a prescribed
offence.
Note: A superior summary authority may be
disqualified from trying a charge against a person because of subsection
108A(1).
107
Jurisdiction of commanding officer
(1) A commanding officer has jurisdiction to
deal with any charge against any person.
(2) A commanding officer has jurisdiction to
try a charge against:
(a) a member of the Defence Force who
is 2 or more ranks junior to him or her, being a member of or below the naval
rank of lieutenant, the military rank of captain or the rank of flight
lieutenant; or
(b) a person who is not a member of
the Defence Force;
in respect of a service offence that is not a prescribed
offence.
Note: A commanding officer may be disqualified from trying
a charge against a person because of subsection 108A(1).
108
Jurisdiction of subordinate summary authority
(1) A subordinate summary authority has
jurisdiction to deal with a charge against a member of the Defence Force who is
not an officer in respect of a service offence of a kind notified, in writing,
to the authority by the commanding officer who appointed him or her.
(1A) A subordinate summary authority has
jurisdiction to deal with a charge against a prescribed officer in respect of a
service offence of a kind notified, in writing, to the authority by the
commanding officer who appointed him or her.
(2) A subordinate summary authority has
jurisdiction to try a charge against a member of the Defence Force of, or
below, the rank of leading seaman or corporal in respect of a service offence
(other than a prescribed offence) of a kind notified, in writing, to the
authority by the commanding officer who appointed him or her.
Note: A subordinate summary authority may be
disqualified from trying a charge against a person because of subsection
108A(1).
(3) A subordinate summary authority has
jurisdiction to try a charge against a prescribed officer in respect of a
service offence (other than a prescribed offence) of a kind notified, in
writing, to the authority by the commanding officer who appointed him or her.
Note: A subordinate summary authority may be
disqualified from trying a charge against a person because of subsection
108A(1).
(4) In this section, prescribed officer
means an officer who is:
(a) included in a prescribed class of
officers; and
(b) receiving instruction or training.
108A
Disqualification of summary authority from trying a charge
(1) A summary authority must not try a charge
of a service offence against a person if the summary authority was involved in:
(a) the investigation of the offence;
or
(b) the issuing of a warrant for the
arrest of the person; or
(c) charging the person with the
offence.
(2) If a summary authority is not permitted
to try a charge of a service offence against a person because of
subsection (1), the summary authority must refer the charge to another
summary authority, being a summary authority who:
(a) has jurisdiction to try the
charge; and
(b) is not prevented from trying the
charge because of subsection (1).
109
Dealing with a charge by superior summary authority
A superior summary authority to whom a
charge is referred by a commanding officer under paragraph 110(1)(c) may:
(a) make a decision to try the charge
under section 106; or
(b) refer the charge to the Director
of Military Prosecutions.
110
Dealing with a charge by commanding officer
(1) In dealing with a charge, a commanding
officer may:
(a) where the charge is within his or
her jurisdiction to try under subsection 107(2)—make a decision to try the
charge under that subsection;
(b) where the charge is not within his
or her jurisdiction to try under subsection 107(2) and he or she is of the
opinion that there is insufficient evidence to support the charge—direct that
the charge be not proceeded with;
(c) where the charge is within the
jurisdiction of a superior summary authority to try under section 106—refer
the charge to a superior summary authority;
(d) refer the charge to the Director
of Military Prosecutions; or
(e) where it is desirable in the
interests of justice or for any other reason—refer the charge to be dealt with
by another commanding officer.
(2) A commanding officer may refer a charge
under paragraph (1)(c) or (d) whether or not the charge is within his or
her jurisdiction to try under subsection 107(2).
111
Dealing with charge by subordinate summary authority
(1) Unless a commanding officer otherwise
directs in a particular case or in relation to a class of cases in which the
particular case is included, a charge of a service offence that a subordinate
summary authority has jurisdiction to deal with under subsection 108(1) or (1A)
shall be dealt with by that authority in accordance with subsection (2).
(2) In dealing with a charge, a subordinate
summary authority may:
(a) where the charge is within his or
her jurisdiction to try under subsection 108(2) or (3)—make a decision to try
the charge under subsection 108(2) or (3), as the case requires;
(b) where the charge is not within his
or her jurisdiction to try under subsection 108(2) or (3) and he or she is of
the opinion that there is insufficient evidence to support the charge—direct
that the charge be not proceeded with; or
(c) whether or not the charge is
within his or her jurisdiction to try under subsection 108(2) or (3)—refer the
charge to the commanding officer of the authority or to another subordinate
summary authority.
111A
Proceedings by way of dealing with a charge
(1) A summary authority may, if he or she
thinks it desirable to do so, hear evidence in relation to a charge for the
purpose of determining, under section 109, 110 or 111, the manner in which
the charge is to be dealt with, but, if he or she does so, nothing in this
subsection precludes him or her from trying the charge.
Note: A summary authority is not bound by the rules
of evidence and may hear any evidence that it considers to be of assistance and
relevance in proceedings for the purpose referred to in this subsection: see
section 146A.
(2) The regulations may make provision for
and in relation to the admissibility, in proceedings before a service tribunal
(including proceedings by way of trying a charge), of evidence adduced in
proceedings before a summary authority for the purpose referred to in subsection (1).
111B
Accused person may elect to be tried by a court martial or Defence Force
magistrate—election before commencement of trial
(1) At the commencement of dealing with a
charge against an accused person, the summary authority must give the person an
opportunity to elect, in accordance with section 111C, to have the charge
tried by a court martial or Defence Force magistrate.
Note 1: If the summary authority is dealing with an
accused person in respect of 2 or more charges (the linked charges)
that arise from the same facts or circumstances, and the accused person makes
an election to have one or more of the linked charges tried by a court martial
or Defence Force magistrate, the summary authority must refer that charge or
those charges and, unless the Director of Military Prosecutions agrees
otherwise, any other linked charge to the Director of Military Prosecutions:
see subsection 111C(3).
Note 2: If the summary authority is dealing with 2 or
more accused persons together, the summary authority must give each accused
person an opportunity to make an election in accordance with section 111C.
(2) Subsection (1)
does not apply in relation to:
(a) a charge of a prescribed offence;
or
(b) a charge of any other service
offence that:
(i) arises from the same
facts and circumstances as a prescribed offence; and
(ii) is being dealt with
together with that offence; or
(c) a charge of a Schedule 1A
offence (other than a Schedule 1A offence covered by paragraph (b)),
unless the accused person is:
(i) an officer of or below
the rank of rear admiral but above the rank of lieutenant commander; or
(ii) an officer of or below
the rank of major‑general but above the rank of major; or
(iii) an officer of or below
the rank of air vice‑marshal but above the rank of squadron leader.
(3) The accused person must be given an
opportunity to obtain legal advice in relation to the election if a legal
officer is reasonably available to give such advice.
111C
Decision by accused person whether to elect to be tried by a court martial or
Defence Force magistrate—decision before commencement of trial
When election decision must be made
(1) If, under section 111B, a summary
authority gives an accused person an opportunity to elect to have a charge
tried by a court martial or Defence Force magistrate, the accused person must
decide whether or not to make the election:
(a) within 24 hours after the
opportunity to make the election is given; or
(b) if the exigencies of service do
not permit the person to make the decision within that time—within such longer
period (not exceeding 14 days) as the summary authority allows.
(2) The summary authority must ensure that a
decision under subsection (1) is recorded in writing.
Decision to elect to have charge tried by a court
martial or Defence Force magistrate
(3) If the accused person elects to have the
charge tried by a court martial or Defence Force magistrate, the summary
authority must:
(a) refer the charge (the first
charge) to the Director of Military Prosecutions; and
(b) unless the Director of Military Prosecutions
agrees otherwise, refer any other charge (including a charge in respect of a
Schedule 1A offence) against the accused person that is linked to the
first charge, and that is being dealt with together with the first charge, to
the Director of Military Prosecutions; and
(c) inform the Registrar that the
charge or charges have been referred to the Director of Military Prosecutions.
(4) For the purposes of
paragraph (3)(b), a charge (the first charge) against a
person is linked to another charge against the person if the first charge and
the other charge arise from the same facts or circumstances.
Decision not to elect to have charge tried by a court
martial or Defence Force magistrate
(5) If:
(a) the accused person:
(i) does not elect to have
the charge tried by a court martial or Defence Force magistrate; or
(ii) does not make a
decision within the time allowed under subsection (1); and
(b) the charge is not referred to the
Director of Military Prosecutions under paragraph (3)(b);
the summary authority must deal with the charge.
Withdrawal of election
(6) An accused person who has elected to have
a charge tried by a court martial or Defence Force magistrate may withdraw the
election at any time before a date is fixed for hearing by a court martial or
Defence Force magistrate.
(7) If an accused person withdraws an
election to have a charge tried by a court martial or Defence Force magistrate:
(a) the Director of Military
Prosecutions must inform the Registrar; and
(b) the Director of Military
Prosecutions must refer the charge, and any other charge referred to the
Director of Military Prosecutions under paragraph (3)(b), to a summary
authority; and
(c) the summary authority must deal
with the charge or charges.
112
Discontinuance
Where a summary authority, after
commencing to deal with a charge:
(a) refers the charge under paragraph
110(1)(c) or (e) or 111(2)(c) or subsection 141(9) to another summary
authority;
(b) is unable to conclude the hearing
of the charge because of death, illness, transfer or other circumstances; or
(c) considers that it would not be in
the interests of justice to continue;
a summary authority who subsequently deals with the charge
shall deal with the charge afresh.
113
Powers of officer in command of detachment
(1) Subject to such limitations and
restrictions as are determined, in writing, by the Chief of the Defence Force
or a service chief or by an authorized officer, in relation to a specified
detachment or a detachment included in a specified class of detachments, an
officer in command of a detachment has, and may exercise, in relation to a
member of the detachment, the powers under this Part of a commanding officer.
(2) In this
section, detachment means an organized body of members of the
Defence Force that is declared by an authorized officer, by instrument in
writing, to be a detachment for the purposes of this section, and includes an
organized body of members of the Defence Force that is so separated from the
unit of the Defence Force to which it belongs that the commanding officer of
the unit could not effectively exercise disciplinary powers with respect to
that body of members.
Division 3—Courts martial
114
Types of court martial
(1) A court martial shall be either a general
court martial or a restricted court martial.
(2) A general court martial shall consist of
a President and not less than 4 other members.
(3) A restricted court martial shall consist
of a President and not less than 2 other members.
115
Jurisdiction of court martial
(1) A court martial has, subject to
section 63 and to subsection (1A) of this section, jurisdiction to
try any charge against any person.
(1A) A court martial does not have jurisdiction
to try a charge of a custodial offence.
(2) A court martial has jurisdiction to take
action under Part IV in relation to a convicted person if it has been
convened under subsection 125(6) or 129A(4) for that purpose.
(3) A court martial, before taking action
under subsection (2), shall hear evidence relevant to the determination of
what action should be taken.
116
Eligibility to be member of court martial
(1) For the purposes of this Act, a person is
eligible to be a member, or a reserve member, of a court martial if, and only
if:
(a) the person is an officer;
(b) the person has been an officer for
a continuous period of not less than 3 years or for periods amounting in the
aggregate to not less than 3 years; and
(c) the person holds a rank that is
not lower than the rank held by the accused person (being a member of the Defence
Force) or by any of the accused persons (being members of the Defence Force).
(2) For the purposes of this Act, an officer
is eligible to be President of a court martial if, and only if, the officer
holds a rank that is not lower than:
(a) in the case of a general court
martial—the naval rank of captain or the rank of colonel or group captain; or
(b) in the case of a restricted court
martial—the rank of commander, lieutenant‑colonel or wing commander.
(2A) Subsection (2) does not apply in
relation to a person who becomes President of a court martial in pursuance of:
(a) an appointment made by virtue of
paragraph 124(1)(e); or
(b) subsection 126(1).
(3) The requirements set out in
paragraph (1)(c) and subsection (2) apply only if, and to the extent that,
the exigencies of service permit.
117
Eligibility to be judge advocate
For the purposes of this Act, a person
is eligible to be the judge advocate of a court martial if, and only if, the
person is a member of the judge advocates’ panel.
119
Convening order
(1) The Registrar must, in an order convening
a court martial:
(a) appoint:
(i) the President and the
other members;
(ii) an adequate number of
reserve members; and
(iii) the judge advocate;
and
(b) fix, or provide for the fixing of,
the time and place for the assembling of the court martial.
Note: The Registrar must not appoint a person as the
judge advocate of a court martial unless the person has been nominated by the
Judge Advocate General: see section 129B.
(2) At any time before a court martial
assembles to try a charge, the Registrar may:
(a) vary the order convening the court
martial; or
(b) make an order under
subsection (1) convening a new court martial.
120
Convening order to be notified to accused person
(1) The Registrar must, as soon as
practicable after he or she makes an order convening a court martial for the
purpose of trying an accused person (including an order made by virtue of
subsection 119(2)), cause a copy of that order to be given to the accused
person.
(2) If an order convening a court martial is
subsequently varied, the Registrar must notify the accused person accordingly.
121
Objection on ground of ineligibility etc.
At any time before a court martial is
sworn or affirmed, the accused person may lodge an objection with the Registrar
to any member or reserve member of the court martial or to the judge advocate
on the ground that the member or judge advocate:
(a) is ineligible;
(b) is, or is likely to be, biased; or
(c) is likely to be thought, on
reasonable grounds, to be biased.
122
Notification of belief of bias
A member or reserve member, or the judge
advocate, of a court martial who believes himself or herself:
(a) to be biased, or likely to be
biased; or
(b) likely to be thought, on
reasonable grounds, to be biased;
shall notify the Registrar forthwith.
123
Substitution of members etc.
At any time before a court martial is
sworn or affirmed, the Registrar may revoke the appointment of an officer to be
a member or reserve member of the court martial or the judge advocate and
appoint an officer to be a member or reserve member or the judge advocate, as
the case may be, in the place of that first‑mentioned officer.
Note: The Registrar must not appoint a person as the
judge advocate of a court martial unless the person has been nominated by the
Judge Advocate General: see section 129B.
124
Replacement of members etc.
(1) Where, after a court martial has
assembled but before it is sworn or affirmed, the judge advocate:
(a) finds that a member of the court
martial who has not appeared at the place of assembly is not, or is not likely
to be, available;
(b) upholds an objection entered under
subsection 141(2) to a member of the court martial; or
(c) finds that, for some other reason,
a member of the court martial should be excused from further attendance as such
a member;
the judge advocate shall:
(d) where the member concerned is not
the President—appoint a reserve member in the place of that member;
(e) where the member concerned is the
President and the next senior member is not more than one rank junior to the
President—appoint that next senior member to be the President in the place of
the member concerned; or
(f) where the member concerned is the
President and the next senior member is more than one rank junior to the
President—report the situation to the Registrar and request the Registrar to
appoint a President in the place of the member concerned.
(2) Where, after a court martial has
assembled but before it is sworn or affirmed, the judge advocate finds that
there are insufficient members and reserve members properly to constitute the
court martial, the judge advocate shall report the situation to the Registrar
and request the Registrar to appoint as many new members or new reserve members,
or both, as the Registrar considers necessary.
(3) Where the judge advocate upholds an
objection entered under subsection 141(3) to himself or herself, he or she
shall report the situation to the Registrar and request the Registrar to
appoint another judge advocate in his or her place.
Note: The Registrar must not appoint a person as a
judge advocate of a court martial unless the person has been nominated by the
Judge Advocate General: see section 129B.
125
Dissolution of court martial
(1) Where, after a court martial has
assembled but before it is sworn or affirmed, the judge advocate considers that
by reason of the exigencies of service or for any other reason it is desirable
to do so, he or she may direct the Registrar to dissolve the court martial.
(2) Where:
(a) at any time after a court martial
is sworn or affirmed, there is an insufficient number of members properly to
constitute the court martial; or
(b) at any time after the accused
person’s plea of guilty or not guilty has been recorded by a court martial, the
judge advocate is unable to attend;
the Registrar must dissolve the court martial.
(3) Where, at any time after a court martial
is sworn or affirmed, the judge advocate considers that, in the interests of
justice, the court martial should be dissolved, the judge advocate must direct
the Registrar to dissolve the court martial.
(4) Where:
(a) a court martial has adjourned the
hearing of the proceedings before it; and
(b) the judge advocate considers that,
by reason of the exigencies of service, it will not be practicable to continue
the hearing of the proceedings at a later date;
the judge advocate must direct the Registrar to dissolve
the court martial.
(5) Where a court martial is dissolved under
subsection (1), (2), (3) or (4), the Director of Military Prosecutions may
request the Registrar to convene another court martial in its stead.
(6) Where a court martial is dissolved as
mentioned in subsection (2), (3) or (4) after it has convicted a person
but before it has taken action under Part IV in relation to the convicted
person, the Registrar may convene another court martial for the purpose of
taking such action.
(7) A court martial, before taking action
under subsection (6), shall hear evidence relevant to the determination of
what action should be taken.
(8) For the purposes of this Part, a member
of a court martial convened under subsection (6) shall not be taken to be
biased by reason only of his or her having been a member of the court martial
that was dissolved as mentioned in that subsection.
126
Inability to attend after plea
(1) Where the President is unable to attend
at any time after the accused person’s plea of not guilty or guilty has been
recorded by a court martial, the next senior member shall become the President
of the court martial and the first‑mentioned President shall take no further
part in the proceedings.
(2) Where a member of a court martial is
unable to attend at any time after the accused person’s plea of not guilty or
guilty has been recorded by a court martial, that member shall take no further
part in the proceedings.
Division 4—Defence Force magistrates
127
Appointment of Defence Force magistrates
(1) The Judge Advocate General may, by
instrument in writing, appoint officers to be Defence Force magistrates.
(2) An officer is not eligible to be a
Defence Force magistrate unless the officer is a member of the judge advocates’
panel.
Note: A member of the judge advocates’ panel is
appointed for a maximum period of 3 years but is eligible for reappointment:
see subsection 196(2A).
128
Oath or affirmation of Defence Force magistrate
(1) A Defence Force magistrate shall, before
proceeding to discharge the duties of his or her office, make and subscribe an
oath or affirmation in accordance with the form in Schedule 4.
(2) An oath or affirmation under this section
shall be made before the Judge Advocate General or an officer authorized, in
writing, by the Judge Advocate General for the purpose.
129
Jurisdiction and powers of Defence Force magistrate
(1) A Defence Force magistrate has the same
jurisdiction and powers as a restricted court martial (including the powers of
the judge advocate of a restricted court martial).
(2) A Defence Force magistrate has
jurisdiction to take action under Part IV in relation to a convicted
person if the case has been referred to the magistrate under subsection 129A(4)
for that purpose.
(3) A Defence Force magistrate, before taking
action under subsection (2), shall hear evidence relevant to the
determination of what action should be taken.
129A
Discontinuance of proceedings before Defence Force magistrate etc.
(1) If a charge or case has been referred to
a Defence Force magistrate under subparagraph 87(1)(c)(ii), section 103 or
subsection (4) of this section, the Registrar must terminate the reference
if:
(a) at a time before the Defence Force
magistrate commences to try the charge or hear the case, it appears to the
Registrar that, by reason of the exigencies of service, or for any other
reason, it is desirable to terminate the reference; or
(b) at a time after the Defence Force
magistrate commences to try the charge or hear the case:
(i) it appears to the
Defence Force magistrate that it would not be in the interests of justice for
the Defence Force magistrate to continue; and
(ii) the Defence Force
magistrate directs the Registrar to terminate the reference.
(2) Where:
(a) a charge or case has been referred
to a Defence Force magistrate under subparagraph 87(1)(c)(ii), section 103
or subsection (4) of this section; and
(b) at a time after the Defence Force
magistrate commences to try the charge or hear the case, the Defence Force
magistrate is unable to conclude the trial of the charge or the hearing of the
case because of death, illness, the exigencies of service or other
circumstances;
the Registrar must terminate the reference.
(3) Where a reference of a charge is
terminated by the Registrar under subsection (1) or (2) at a time before
the dismissal of the charge or the acquittal or conviction of the accused person,
the charge shall, by virtue of the termination of the reference, be taken to
have been referred to the Director of Military Prosecutions.
(4) Where:
(a) a reference of a charge is
terminated under subsection (1) or (2) after the conviction of the accused
person and before action has been taken under Part IV in relation to the
person; or
(b) a reference of a case is
terminated under subsection (1) or (2) before action has been taken under
Part IV in relation to the convicted person;
the Registrar may:
(c) refer the charge or case, as the
case may be, to a Defence Force magistrate to take action under Part IV in
relation to the person; or
(d) if no Defence Force magistrate is
available or the Director of Military Prosecutions considers that it would be
more appropriate for the matter to be dealt with by a court martial—convene a
general court martial or a restricted court martial to take action under
Part IV in relation to the person.
Note: A charge or case referred to a Defence Force
magistrate must be referred to the magistrate nominated by the Judge Advocate
General: see section 129C.
Division 5—Nomination of Defence Force magistrates and members of courts
martial
129B
Appointment of members of courts martial
(1) The Registrar must not appoint a person
as:
(a) the President of a court martial;
or
(b) a member or reserve member of a
court martial; or
(c) a judge advocate of a court
martial;
if the Registrar believes the person to be:
(d) biased or likely to be biased; or
(e) likely to be thought, on
reasonable grounds, to be biased.
(2) The Registrar must not appoint a person
as a judge advocate of a court martial unless the Judge Advocate General has
nominated that person for that position.
(3) The appropriate service chief must make
available, for the purposes of a court martial, a defence member who is
appointed to be a member of that court martial.
129C
Judge Advocate General to nominate Defence Force magistrates
(1) The Registrar must not refer a charge to
a Defence Force magistrate unless the Judge Advocate General has nominated the
magistrate to try the charge.
(2) The Registrar must not refer a case to a
Defence Force magistrate to take action under Part IV in relation to a
convicted person unless the Judge Advocate General has nominated the magistrate
to take action in relation to the person.
Part VIII—Procedure of service tribunals
Division 1—Trial by summary authority
129D
Time within which trial must be commenced
(1) The trial of a charge of a service
offence that is to be tried by a summary authority:
(a) must be commenced:
(i) as soon as practicable
within the period of 3 months after the accused person is charged with the
service offence; or
(ii) if the exigencies of
service or other circumstances do not permit the trial to be commenced within
this period—within a longer period as allowed by a superior authority; and
(b) must be completed as soon as
practicable.
(2) If a summary authority that is to try a
charge does not commence the trial within the period allowed under
paragraph (1)(a), the summary authority must refer the charge to the
Director of Military Prosecutions.
130
Trial by summary authority
(1) A summary authority shall try a charge in
accordance with the following provisions:
(a) if the accused person is present
at the hearing:
(i) the authority, before
hearing any evidence on the charge, must ask the accused person whether he or
she pleads guilty or not guilty to the charge; and
(ii) if the accused person
pleads guilty and the authority is satisfied that the accused person
understands the effect of that plea—the authority must, subject to subsection
131(3), convict the accused person;
(aa) if:
(i) the accused person has
pleaded guilty to the charge in writing; and
(ii) the authority has made
an order under subsection 139(4) (permitting the accused person not to be
present at the hearing);
the authority must convict the
accused person;
(b) if the accused person pleads not
guilty or the authority is not satisfied that the accused person, in pleading
guilty, understands the effect of that plea, the authority shall record a plea
of not guilty and proceed to hear the evidence on the charge;
(c) if the authority, after hearing
the evidence on the charge adduced by the prosecution, is of the opinion that
that evidence is insufficient to support the charge, the authority shall
dismiss the charge;
(d) if the authority, after hearing
the evidence on the charge adduced by the prosecution, is of the opinion that
that evidence is sufficient to support the charge, the authority shall proceed
with the trial;
(e) if the authority finds that the
charge is not proved, the authority shall dismiss the charge;
(f) if the authority finds the charge
proved, the authority shall convict the accused person;
(g) if the authority convicts the
accused person, the authority shall take action under Part IV in relation
to the convicted person.
(2) Where the accused person:
(a) refuses to plead; or
(b) does not plead intelligibly;
the summary authority shall record a
plea of not guilty and proceed accordingly in accordance with subsection (1).
(3) Where an accused person who has pleaded
not guilty withdraws his or her plea and pleads guilty, the summary authority
shall, if it is satisfied that the accused person understands the effect of
that plea, substitute a plea of guilty for the plea of not guilty and proceed
accordingly in accordance with subsection (1).
(3A) Nothing in subsection (1) shall be
taken to require the summary authority, in trying a charge in accordance with
that subsection, to form either an opinion of the kind referred to in paragraph (1)(c)
or an opinion of the kind referred to in paragraph (1)(d) unless:
(a) the accused person has submitted
that the summary authority should form an opinion of the first‑mentioned kind;
or
(b) the interests of justice require
that the summary authority should form an opinion of the first‑mentioned kind.
(4) A summary authority, before taking action
under paragraph (1)(g), shall hear evidence relevant to the determination
of what action should be taken.
(5) A summary authority trying a charge may,
at any stage of the trial, refer the charge to the Director of Military
Prosecutions if the summary authority considers that it is desirable, in the
interests of justice, that the charge be so referred.
(6) Subsection (5) does not affect the
operation of any other provision of this Act.
131
Accused person may elect to be tried by a court martial or Defence Force
magistrate—election during trial
(1) This section applies to a trial by a
superior summary authority, or a commanding officer, of a charge of a
Schedule 1A offence (other than a custodial offence).
(2) However, this section does not apply in
relation to an accused person who is an officer referred to in paragraph 111B(2)(c).
(3) If, during the trial, the summary
authority considers:
(a) that the evidence adduced by the
prosecution is sufficient to support the charge; and
(b) that, if the accused person were
convicted, it would be appropriate to impose an elective punishment on the
person;
the summary authority must, before making a finding in
relation to the charge, give the accused person an opportunity to elect, in
accordance with section 131AA, to have the charge tried by a court martial
or Defence Force magistrate.
Note 1: If the summary authority considers that it
would be appropriate to impose elective punishments in relation to 2 or more
charges that are being tried together, the summary authority must give the
accused person an opportunity to make an election in relation to each charge.
If the accused person makes an election to have one or more of those charges
tried by a court martial or Defence Force magistrate, the summary authority
must refer that charge or those charges and, unless the Director of Military
Prosecutions agrees otherwise, any other linked charge to the Director of
Military Prosecutions: see subsection 131AA(3).
Note 2: If the summary authority considers that it
would be appropriate to impose, on 2 or more accused persons who are being
tried together, elective punishments in relation to one or more charges, the
summary authority must give each accused person an opportunity to make an
election in relation to each of those charges.
Note 4: See section 67 and Schedule 3 (in
particular, subclauses 1(3) and (4) and 2(2) and (3) of that Schedule) in
relation to the punishments that a superior summary authority or a commanding
officer may impose on a person convicted of a Schedule 1A offence.
(4) The accused person must be given an
opportunity to obtain legal advice in relation to the election if a legal
officer is reasonably available to give such advice.
131AA
Decision by accused person whether to elect to be tried by a court martial or
Defence Force magistrate—decision during trial
When election decision must be made
(1) If, under section 131, a summary
authority gives an accused person an opportunity to elect to have a charge of a
Schedule 1A offence tried by a court martial or Defence Force magistrate,
the accused person must decide whether or not to make the election:
(a) within 24 hours after the
opportunity to make the election is given; or
(b) if the exigencies of service do
not permit the person to make the decision within that time—within such longer
period (not exceeding 14 days) as the summary authority allows.
(2) The summary authority must ensure that a
decision under subsection (1) is recorded in writing.
Decision to elect to have charge tried by a court
martial or Defence Force magistrate
(3) If the accused person elects to have the
charge tried by a court martial or Defence Force magistrate, the summary
authority must:
(a) refer the charge (the first
charge) to the Director of Military Prosecutions; and
(b) unless the Director of Military
Prosecutions agrees otherwise, refer any other charge against the accused
person that is linked to the first charge, and that is being tried together
with the first charge, to the Director of Military Prosecutions; and
(c) inform the Registrar that the
charge or charges have been referred to the Director of Military Prosecutions.
(4) For the purposes of
paragraph (3)(b), a charge (the first charge) against a
person is linked to another charge against the person if the first charge and
the other charge arise from the same facts or circumstances.
Decision not to elect to have charge tried by a court
martial or Defence Force magistrate
(5) If:
(a) the accused person:
(i) does not elect to have
the charge tried by a court martial or Defence Force magistrate; or
(ii) does not make a
decision within the time allowed under subsection (1); and
(b) the charge is not referred to the
Director of Military Prosecutions under paragraph (3)(b);
the summary authority must proceed with the trial of the
charge.
Withdrawal of election
(6) An accused person who has elected to have
a charge tried by a court martial or Defence Force magistrate may withdraw the
election at any time before a date is fixed for hearing by the court martial or
Defence Force magistrate.
(7) If an accused person withdraws an
election to have a charge tried by a court martial or Defence Force magistrate:
(a) the Director of Military
Prosecutions must inform the Registrar; and
(b) the Director of Military
Prosecutions must refer the charge, and any other charge referred to the
Director of Military Prosecutions under paragraph (3)(b), to the summary
authority referred to in subsection 131(1); and
(c) the summary authority must proceed
with the trial of the charge or charges.
Punishments that may be imposed by summary authority
(8) If:
(a) under subsection (5) or (7),
a summary authority proceeds with the trial of a charge of a Schedule 1A
offence; and
(b) the summary authority convicts the
accused person of the offence;
the summary authority may impose an elective punishment on
the convicted person in respect of the offence.
131A
Reference of charge to Director of Military Prosecutions
Where on a trial of a charge a superior
summary authority or commanding officer is of the opinion:
(a) that the evidence adduced by the
prosecution is sufficient to support the charge; and
(b) that, in the event of his or her
convicting the accused person, he or she would be precluded by a provision of
this Act from taking such action under Part IV in relation to the accused
person as he or she considers to be warranted by that evidence;
the superior summary authority or commanding officer, as
the case may be, shall terminate the trial and refer the charge to the Director
of Military Prosecutions.
131B
Conviction by summary authority to have effect for service purposes only
(1) If a person has been convicted by a
summary authority of a service offence:
(a) the conviction has effect for
service purposes only; and
(b) the person is not required to
disclose to any person, for any purpose (other than a service purpose), the
fact that the person was convicted of the offence.
(2) This section applies to a conviction by a
summary authority whether the conviction occurs before or after the
commencement of this section.
Division 2—Trial by court martial or Defence Force magistrate
132
Trial by court martial
(1) A court martial shall try a charge in
accordance with the following provisions:
(a) before the court martial commences
to hear the evidence on the charge, the judge advocate shall ask the accused person
whether he or she pleads guilty or not guilty to the charge and, if the accused
person pleads guilty and the judge advocate is satisfied that the accused
person understands the effect of that plea, the court martial shall convict the
accused person;
(b) if the accused person pleads not
guilty or if the judge advocate is not satisfied that the accused person, in
pleading guilty, understands the effect of that plea, the court martial shall
record a plea of not guilty and proceed to hear the evidence on the charge;
(c) if the judge advocate, after
hearing the evidence on the charge adduced by the prosecution, rules that that
evidence is insufficient to support the charge, the court martial shall dismiss
the charge;
(d) if the judge advocate, after hearing
the evidence on the charge adduced by the prosecution, rules that that evidence
is sufficient to support the charge, the court martial shall proceed with the
trial;
(e) if the court martial finds the
accused person not guilty, the court martial shall acquit the accused person;
(f) if the court martial finds the
accused person guilty, the court martial shall convict the accused person;
(g) if the court martial convicts the
accused person, the court martial shall take action under Part IV in
relation to the convicted person.
(2) Where an accused person:
(a) refuses to plead; or
(b) does not plead intelligibly;
the court martial shall record a plea of not guilty and
proceed accordingly in accordance with subsection (1).
(3) Where, under paragraph (1)(a), an
accused person pleads guilty to a service offence that is one (other than the
first) of 2 or more charges stated in the charge sheet in the alternative, the
court martial shall:
(a) if the Director of Military
Prosecutions notifies the court martial that he or she does not object to the
acceptance of the plea—accept the plea and proceed accordingly in accordance
with subsection (1); or
(b) in any other case—record a plea of
not guilty and proceed accordingly in accordance with subsection (1).
(4) Where an accused person who has pleaded
not guilty withdraws his or her plea and pleads guilty, the court martial
shall, if the judge advocate is satisfied that the accused person understands
the effect of that plea, substitute a plea of guilty for the plea of not guilty
and proceed accordingly in accordance with subsection (1).
(4A) Nothing in subsection (1) shall be
taken to require the judge advocate to give either a ruling of the kind
referred to in paragraph (1)(c) or a ruling of the kind referred to in
paragraph (1)(d) unless:
(a) the accused person has submitted
that the judge advocate should give a ruling of the first‑mentioned kind; or
(b) the interests of justice require
that the judge advocate should give a ruling of the first‑mentioned kind.
(5) A court martial, before taking action
under paragraph (1)(g), shall hear evidence relevant to the determination
of what action should be taken.
133
Determination of questions by court martial
(1) Subject to section 134, in any
proceeding before a court martial:
(a) the President shall preside; and
(b) every question shall be determined
by the members of the court martial.
(2) Every question determined by the members
of the court martial shall be decided by a majority of the votes of the
members.
(3) Subject to subsections (4) and (5),
in the case of an equality of votes on any question referred to in
subsection (2), the President has a casting vote.
(4) In the case of an equality of votes on
the question whether an accused person is guilty or not guilty of a service
offence, the court martial shall find the accused person not guilty.
(5) In the case of an equality of votes on
the question whether an accused person, at the time of the act or omission the
subject of the charge, was suffering from such unsoundness of mind as not to be
responsible, in accordance with law, for that act or omission, the court
martial shall find that the person was, at that time, suffering from such
unsoundness of mind.
(6) Notwithstanding anything contained in
this Act, the members of a court martial:
(a) in determining the question
whether an accused person:
(i) is guilty or not
guilty of a service offence; or
(ii) at the time of the act
or omission the subject of the charge, was suffering from such unsoundness of mind
as not to be responsible, in accordance with law, for that act or omission; or
(b) in determining what action shall
be taken under Part IV in relation to a convicted person;
shall sit without any other person present.
134
Powers of judge advocate
(1) In proceedings before a court martial,
the judge advocate shall give any ruling, and exercise any discretion, that, in
accordance with the law in force in the Jervis Bay Territory, would be given or
exercised by a judge in a trial by jury.
(2) Where, for any purpose in connection with
the giving of a ruling, or the exercise of a discretion, by a judge in a trial
by jury in the Jervis Bay Territory, the judge would, in accordance with the
law in force in that Territory, sit in the absence of the jury, the judge
advocate shall, for any purpose in connection with the giving of such a ruling,
or the exercise of such a discretion, by the judge advocate, sit without the
members of the court martial.
(3) Notwithstanding subsections (1) and
(2), in a proceeding before a court martial, the members of the court martial
shall determine what action shall be taken under Part IV in relation to a
convicted person, but the judge advocate shall give a ruling on any question of
law arising in connection with the making of such a determination.
(4) A ruling given by the judge advocate in
accordance with subsection (1) or (3) and a decision made by the judge
advocate under subsection 141(5) or (6) is binding on the court martial.
(5) The judge advocate when sitting without
the members of a court martial may exercise such of the powers of the court
martial or the President as are necessary for the performance of his or her
duties.
(6) The powers conferred on the judge
advocate by this section are in addition to any other powers conferred on the
judge advocate by any other provision of this Act, the regulations or the rules
of procedure.
135
Trial by Defence Force magistrate
(1) A Defence Force magistrate shall try a
charge in accordance with the following provisions:
(a) before the Defence Force
magistrate commences to hear the evidence on the charge, the Defence Force
magistrate shall ask the accused person whether he or she pleads guilty or not
guilty to the charge and, if the accused person pleads guilty and the Defence
Force magistrate is satisfied that the accused person understands the effect of
that plea, the Defence Force magistrate shall convict the accused person;
(b) if the accused person pleads not
guilty or if the Defence Force magistrate is not satisfied that the accused
person, in pleading guilty, understands the effect of that plea, the Defence
Force magistrate shall record a plea of not guilty and proceed to hear the
evidence on the charge;
(c) if the Defence Force magistrate,
after hearing the evidence on the charge adduced by the prosecution, rules that
that evidence is insufficient to support the charge, the Defence Force
magistrate shall dismiss the charge;
(d) if the Defence Force magistrate,
after hearing the evidence on the charge adduced by the prosecution, rules that
that evidence is sufficient to support the charge, the Defence Force magistrate
shall proceed with the trial;
(e) if the Defence Force magistrate
finds the accused person not guilty, the Defence Force magistrate shall acquit
the accused person;
(f) if the Defence Force magistrate
finds the accused person guilty, the Defence Force magistrate shall convict the
accused person;
(g) if the Defence Force magistrate
convicts the accused person, the Defence Force magistrate shall take action
under Part IV in relation to the convicted person.
(2) Where an accused person:
(a) refuses to plead; or
(b) does not plead intelligibly;
the Defence Force magistrate shall record a plea of not
guilty and proceed accordingly in accordance with subsection (1).
(3) Where, under paragraph (1)(a), an
accused person pleads guilty to a service offence that is one (other than the
first) of 2 or more charges stated in the charge sheet in the alternative, the
Defence Force magistrate shall:
(a) if the Director of Military
Prosecutions notifies the Defence Force magistrate that he or she does not
object to the acceptance of the plea—accept the plea and proceed accordingly in
accordance with subsection (1); or
(b) in any other case—record a plea of
not guilty and proceed accordingly in accordance with subsection (1).
(4) Where an accused person who has pleaded
not guilty withdraws his or her plea and pleads guilty, the Defence Force
magistrate shall, if the Defence Force magistrate is satisfied that the accused
person understands the effect of that plea, substitute a plea of guilty for the
plea of not guilty and proceed accordingly in accordance with
subsection (1).
(4A) Nothing in subsection (1) shall be
taken to require the Defence Force magistrate to give either a ruling of the
kind referred to in paragraph (1)(c) or a ruling of the kind referred to
in paragraph (1)(d) unless:
(a) the accused person has submitted
that the Defence Force magistrate should give a ruling of the first‑mentioned
kind; or
(b) the interests of justice require
that the Defence Force magistrate should give a ruling of the first‑mentioned
kind.
(5) A Defence Force magistrate, before taking
action under paragraph (1)(g), shall hear evidence relevant to the
determination of what action should be taken.
136
Representatives of parties before court martial or Defence Force magistrate
A person shall not represent a party
before a court martial or a Defence Force magistrate unless the person is:
(a) where the trial is held in
Australia—a member of the Defence Force or a legal practitioner; or
(b) where the trial is held in a place
outside Australia—a person referred to in paragraph (a) or a person
qualified to practise before the courts of that place.
137
Representation of accused person
(1) The Chief of the Defence Force shall if,
and to the extent that, the exigencies of service permit, cause an accused
person awaiting trial by a court martial or by a Defence Force magistrate to be
afforded the opportunity to be represented at the trial, and to be advised
before the trial, by a legal officer.
(2) An accused person who is advised or
represented in accordance with subsection (1) shall be so advised or
represented without expense to the accused person.
(3) Nothing in this section prevents the
operation of any scheme of legal aid, advice or assistance under a law of the
Commonwealth or of a State or Territory.
(4) The Chief of the Defence Force may
delegate his or her powers under subsection (1) to a member of the Defence
Force who holds a rank that is not lower than the naval rank of captain, or the
rank of colonel or group captain.
Division 3—General
Subdivision A—General provisions relating to trials
138
Procedural powers
(1) For the purposes of a proceeding before a
service tribunal, the service tribunal may:
(a) take evidence on oath or
affirmation; and
(b) adjourn a hearing from time to
time and from place to place as appears to the tribunal to be necessary or
expedient having regard to the administration of justice or the exigencies of
service.
(2) For the purposes of the hearing of a
proceeding before a service tribunal, the appropriate authority may summon a
person, in a manner provided for in the rules of procedure, to appear before
the tribunal to give evidence and to produce such documents (if any) as are
referred to in the summons.
(3) For the purposes of the hearing of a
proceeding before a service tribunal, a superior officer may order a defence
member to appear before the tribunal to give evidence and to produce such documents
(if any) as are referred to in the order.
(4) A service tribunal or, if the service
tribunal is a court martial, the President of the court martial:
(a) may require a person appearing
before the tribunal to give evidence either to take an oath or to make an
affirmation; and
(b) may administer, or cause to be
administered, an oath or affirmation to a person so appearing before the
tribunal.
(5) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the evidence given by the person will be true.
139
Accused person to be present at hearing
General rule
(1) Subject to subsections (2) and (5),
a hearing before a service tribunal shall be held in the presence of the
accused person.
(2) If a service tribunal or, if the service
tribunal is a court martial, the President of the court martial considers that,
by reason of the disorderly behaviour of the accused person, it is impossible
to continue the hearing in his or her presence, the tribunal or President may
order that the accused person be removed from the place of hearing and be held
in custody elsewhere.
(2A) The President must not make an order under
subsection (2) unless the President has first consulted the judge
advocate.
Exception—trial by summary authority
(3) If:
(a) a charge is to be tried by a
summary authority; and
(b) because of exceptional
circumstances, the accused person is unable to attend the hearing of the
charge; and
(c) the accused person pleads guilty
to the charge in writing before the hearing;
the accused person may apply in writing to the summary
authority for an order permitting the accused person not to be present at the
hearing.
(4) The summary authority may make an order
permitting the accused person not to be present at the hearing if the
authority:
(a) is satisfied that the accused
person understands the effect of the plea; and
(b) considers that exceptional
circumstances exist.
(5) If the summary authority makes an order
under subsection (4), the summary authority must proceed with the trial of
the charge by considering, without holding a hearing, the documents or other
material provided to the summary authority in relation to the charge.
140
Public hearings
(1) Subject to this section, the hearing of
proceedings before a court martial or a Defence Force magistrate shall be in
public.
(2) In proceedings before a court martial or
a Defence Force magistrate, the President of the court martial or the Defence
Force magistrate may, if the President considers it necessary in the interests
of the security or defence of Australia, the proper administration of justice
or public morals:
(a) order that some or all of the
members of the public shall be excluded during the whole or a specified part of
the proceedings; or
(b) order that no report of, or
relating to, the whole or a specified part of the proceedings shall be
published.
(3) The President of a court martial shall
not make an order under subsection (2) unless the President has first
consulted the judge advocate.
(4) Where proceedings before a court martial
or a Defence Force magistrate are held in a secure place, the appropriate
service chief shall cause such steps to be taken as will permit the public to
have reasonable access, subject to an order (if any) in force under
subsection (2), to the proceedings.
(5) In subsection (4), secure
place means a place the entry to which is controlled by guards who are
constables or members of the Defence Force.
141
Applications and objections
(1) At any time before an accused person is
asked to plead at a trial by a service tribunal, the accused person:
(a) may do any one or more of the
following:
(i) apply for an
adjournment on the ground that he or she has not had an adequate opportunity to
prepare his or her defence or to choose a person to represent or advise the
accused person;
(ii) apply to secure the
attendance of witnesses or additional witnesses on his or her behalf;
(iii) if he or she is
charged with more than one service offence, apply for each charge to be heard
separately;
(iv) if he or she is charged
with one or more other persons, apply to be dealt with separately on the ground
that he or she would otherwise be prejudiced in his or her defence;
(v) make such other
applications as he or she considers relevant in connection with the trial; and
(b) may enter an objection to the
charge on any ground, including any of the following grounds:
(i) that, by virtue of
section 144, he or she is not liable to be tried by the service tribunal
for the service offence with which he or she has been charged;
(ii) that the charge was
made in contravention of section 96;
(iii) that he or she has, in
the exercise of the royal prerogative of mercy, been pardoned for the service
offence with which he or she has been charged or for a civil court offence that
is substantially the same offence;
(iv) that the charge does
not disclose a service offence or is otherwise wrong in law;
(v) that the service
tribunal does not have jurisdiction;
(vi) in the case of a trial
by a summary authority—that the summary authority is not permitted to try the
charge because of subsection 108A(1).
(2) At any time before a court martial is
sworn or affirmed, the accused person may enter an objection to any member or
reserve member of the court martial on the ground that the member:
(a) is ineligible; or
(b) is, or is likely to be, biased; or
(c) is likely to be thought, on
reasonable grounds, to be biased.
(3) At any time before an accused person is
asked to plead at a trial by a court martial, the accused person may enter an
objection to the judge advocate on the ground that the judge advocate:
(a) is ineligible; or
(b) is, or is likely to be, biased; or
(c) is likely to be thought, on
reasonable grounds, to be biased.
(4) At any time before an accused person is
asked to plead at a trial by a service tribunal, other than a court martial, the
accused person may:
(a) enter an objection to the service
tribunal on the ground that the service tribunal is ineligible; or
(b) except in the case of a trial by a
summary authority, enter an objection to the service tribunal on the ground
that the service tribunal:
(i) is, or is likely to
be, biased; or
(ii) is likely to be
thought, on reasonable grounds, to be biased;
but nothing in this subsection shall be taken, by
implication, to authorize trial by a summary authority who:
(c) is, or is likely to be, biased; or
(d) is likely to be thought, on
reasonable grounds, to be biased.
(4A) For the purposes of this section, a summary
authority is not to be regarded:
(a) as biased; or
(b) as likely to be biased;
in relation to the trial of an accused person merely
because the summary authority is the commanding officer of the accused person.
(4B) For the purposes of this section, the circumstance
that a summary authority is the commanding officer of an accused person is not,
without more, a reasonable ground for thinking that, in relation to the trial
of the accused person, the summary authority is biased.
(5) Where:
(a) an accused person makes an
application under paragraph (1)(a); and
(b) in the case of a court martial,
the judge advocate of the court martial, or in any other case, the service
tribunal is satisfied that the interests of justice require that the
application be granted;
the service tribunal or the judge advocate must grant the
application.
(6) Where:
(a) an accused person enters an
objection under paragraph (1)(b) or subsection (2), (3) or (4); and
(b) in the case of a court martial,
the judge advocate of the court martial, or in any other case, the service
tribunal is satisfied that the accused person has substantiated his or her
objection;
the service tribunal or the judge advocate must allow the
objection.
(7) An application or objection under
subsection (1), (2) or (3) with respect to a trial by a court martial may
be notified to the judge advocate of the court martial at any time after the
making of the order convening the court martial and, on the notification of
such an application or objection, the judge advocate shall sit without the
members of the court martial for a hearing of that application or objection.
(8) Where a Defence Force magistrate or a
judge advocate grants an application, or allows an objection, under this
section, the Defence Force magistrate or the judge advocate may refer the
charge against the accused person to the Director of Military Prosecutions.
(9) Where a summary authority grants an
application, or allows an objection, under this section, the summary authority
may refer the charge against the accused person to another summary authority.
141A
Amendment of charges
(1) Where it appears to:
(a) a summary authority, before
dealing with or trying a charge or at any stage of dealing with or trying a
charge; or
(b) the Director of Military Prosecutions,
at any stage when a charge is before him or her under section 103; or
(c) the judge advocate of a court
martial, before the court martial tries a charge or at any stage of the trial
of a charge; or
(d) a Defence Force magistrate, before
trying a charge or at any stage of trying a charge;
that, for any reason, the charge should be amended, the
summary authority, Director of Military Prosecutions, judge advocate or Defence
Force magistrate, as the case may be, shall make such amendment of the charge
as he or she thinks necessary unless the amendment cannot be made without
injustice to the accused person.
(2) In subsection (1), amendment
includes the addition of a charge or the substitution of a charge for another
charge.
142
Alternative offences
(1) For the purposes of this section:
(a) an offence against this Act (other
than section 61) is an alternative offence in relation to another such
offence if the first‑mentioned offence is specified in column 2 of Schedule 6
opposite to the reference to the other offence in column 1 of that Schedule;
(b) an offence against section 11.1
of the Criminal Code, being a service offence that is an ancillary
offence in relation to an offence against this Act (other than section 61)
or the regulations is an alternative offence in relation to that offence
against this Act or the regulations;
(ba) an offence against section 61
that is based on an ancillary Territory offence against section 11.1 of
the Criminal Code, or section 44 of the Criminal Code 2002
of the Australian Capital Territory, in relation to another Territory offence
(the first Territory offence), is an alternative offence in
relation to another offence against section 61 that is based on the first
Territory offence;
(c) an offence against section 61
is an alternative offence in relation to another such offence if the relevant
Territory offence in relation to the first‑mentioned offence is an alternative
offence in relation to the relevant Territory offence in relation to the other
offence against section 61;
(d) a Territory offence is an
alternative offence in relation to another Territory offence if a court
exercising jurisdiction in or in relation to the Jervis Bay Territory could, in
a trial of a person on a charge of the other Territory offence, convict the
person of the first‑mentioned Territory offence; and
(e) an old system offence is an
alternative offence in relation to another old system offence if, in accordance
with previous service law, a court martial could, in a trial of a person on a
charge of the other old system offence, have convicted the person of the first‑mentioned
old system offence.
(2) Where a service tribunal acquits a person
of a service offence but is satisfied beyond reasonable doubt of facts that
prove that the person is guilty of another service offence that is an
alternative offence in relation to the offence of which the person has been
acquitted, the service tribunal may convict the person of that other offence.
(3) Where:
(a) a person is charged with a service
offence;
(b) the person pleads not guilty to
the charge but guilty to another service offence that is an alternative offence
in relation to the first‑mentioned service offence; and
(c) the prosecution consents to the
acceptance of the last‑mentioned plea;
the trial shall proceed as if the person:
(d) had been charged with the other
service offence;
(e) had pleaded guilty to a charge of
the other service offence; and
(f) had not been charged with the
first‑mentioned offence.
143
Condonation no bar to proceedings
Proceedings under this Act for a service
offence shall not be barred on the ground of condonation of the offence.
144
Previous acquittal or conviction
(1) Where a person has been acquitted or
convicted of a service offence, the person is not liable to be tried by a
service tribunal for the same offence or for an offence that is substantially
the same offence.
(2) Where, under section 77, a court
martial or a Defence Force magistrate has taken a service offence into
consideration in relation to a convicted person, the person is not liable to be
tried by a service tribunal for the same offence or for an offence that is
substantially the same offence.
(3) Where:
(a) a person has been acquitted or
convicted by a civil court of a civil court offence; or
(b) a person has been acquitted or
convicted by an overseas court of an overseas offence;
the person is not liable to be tried by a service tribunal
for a service offence that is substantially the same offence.
(3A) If a defence member has been dealt with by
a discipline officer under Part IXA in respect of an act or omission
constituting a disciplinary infringement for the purposes of that Part, the
member is not liable to be tried by a service tribunal for a service offence
arising out of the same act or omission.
(3B) For the purpose of subsection (3A),
the exercise by a discipline officer of the power conferred by subsection
169F(3) does not constitute dealing with a defence member under Part IXA.
(4) For the purposes of this section:
(a) the dismissal of a charge under
section 130, 132 or 135 shall be deemed to be an acquittal of the service
offence the subject of the charge;
(b) the dismissal of a charge under
previous service law shall be deemed to be an acquittal of the service offence
the subject of the charge;
(c) a direction under section 103,
110 or 111 that a charge be not proceeded with shall be deemed not to be an
acquittal of the service offence the subject of the charge; and
(d) the dismissal of a charge of a
civil court offence against a person, or the discharge of a person in
proceedings on a charge of a civil court offence, by a civil court, under
section 19B of the Crimes Act 1914 or any corresponding provision
of a law of a State or Territory, shall be deemed to be an acquittal of the
offence.
145
Unsoundness of mind
(1) Where a summary authority considers that
an accused person, by reason of mental impairment, may not be able to
understand the proceedings against him or her and accordingly may be unfit to
stand trial, the authority shall refer the charge to the Director of Military
Prosecutions.
(2) Where a court martial or a Defence Force
magistrate is satisfied that an accused person, by reason of mental impairment,
is not able to understand the proceedings against him or her and accordingly is
unfit to stand trial, the court martial or the Defence Force magistrate shall
so find and shall direct that the person be kept in strict custody until the
pleasure of the Governor‑General is known.
(3) Where, in a trial of a charge by a
summary authority of an accused person, evidence is adduced that shows, or
tends to show, that the accused person, at the time of the act or omission the
subject of the charge, was suffering from such mental impairment as not to be
responsible, in accordance with law, for that act or omission, the authority
shall refer the charge to the Director of Military Prosecutions.
(4) Where, in a trial of a charge by a court
martial or a Defence Force magistrate, the court martial or the Defence Force
magistrate finds that the accused person, at the time of the act or omission
the subject of the charge, was suffering from such mental impairment as not to
be responsible, in accordance with law, for that act or omission, the court
martial or the Defence Force magistrate shall find the accused person not
guilty on the ground of mental impairment and shall acquit the person of the
charge on the ground of mental impairment.
(5) Where an accused person is acquitted by a
court martial or a Defence Force magistrate of a charge on the ground of mental
impairment, the court martial or the Defence Force magistrate shall record the
ground of the acquittal and shall direct that the accused person be kept in
strict custody until the pleasure of the Governor‑General is known.
145A
Notice of alibi
(1) Where the Registrar:
(a) convenes a court martial to try a
charge; or
(b) refers a charge to a Defence Force
magistrate for trial;
the Registrar must:
(c) inform the accused person of the
requirements of subsections (2), (3) and (5); and
(d) give a copy of this section to the
accused person.
(2) In a trial of a charge by a court martial
or Defence Force magistrate, the accused person shall not, without the leave of
the judge advocate of the court martial or the Defence Force magistrate, as the
case requires, adduce evidence in support of an alibi or assert in any
statement made by him or her otherwise than on oath or affirmation that he or
she has an alibi unless, before the end of the period of 14 days commencing on
the day of the making of the order convening the court martial or the referring
of the charge to the Defence Force magistrate, as the case requires, he or she
gives notice of particulars of the alibi.
(3) In a trial of a charge by a court martial
or Defence Force magistrate, the accused person shall not, without the leave of
the judge advocate of the court martial or the Defence Force magistrate, as the
case requires, call a person to give evidence in support of an alibi unless:
(a) the notice given under subsection (2)
includes the name and address of the person or, if the name or address of the
person is not known to the accused person at the time he or she gives the
notice, all information then in his or her possession that may be of material
assistance in ascertaining the identity of, or in locating, the person;
(b) if the name or address of the
person is not included in the notice—the judge advocate of the court martial or
the Defence Force magistrate, as the case may be, is satisfied that, before
giving notice, the accused person took, and, after giving the notice, the
accused person continued to take, all reasonable steps to ascertain the name
and address of the person;
(c) if the name or address of the
person is not included in the notice, but the accused person subsequently
ascertains the name or address of the person or receives information that may
be of material assistance in ascertaining the identity of, or in locating, the
person—the accused person forthwith gives notice of the name, address or other
information, as the case may be; and
(d) if the accused person is notified
by or on behalf of the prosecution that the person has not been found by the
name, or at the address, given by the accused person—the accused person
forthwith gives notice of all information that is then in his or her possession
that may be of material assistance in ascertaining the identity of, or in
locating, the person and, if the accused person subsequently receives any such
information, the accused person forthwith gives notice of the information.
(4) Evidence to disprove an alibi may,
subject to any direction by the judge advocate of a court martial or a Defence
Force magistrate, be adduced before or after evidence is adduced in respect of
the alibi.
(5) A notice under this section shall be
given in writing to the Director of Military Prosecutions and the Registrar.
(6) In this section, evidence in
support of an alibi means evidence tending to show that by reason only
of the presence of the accused person at a particular place, or in a particular
area, at a particular time the accused person was not, or was unlikely to have
been, at the place where the service offence is alleged to have been committed
at the time of the alleged commission of the service offence.
146 Rules
of evidence
(1) Subject to regulations in force under subsection (2),
the rules of evidence in force in the Jervis Bay Territory apply to a trial by a
court martial or Defence Force magistrate as if:
(a) the court martial or Defence Force
magistrate were a court exercising jurisdiction in or in relation to that
Territory; and
(b) the trial were a criminal
proceeding in such a court.
(2) The regulations may make rules of
evidence to be applied in relation to trials by a court martial or Defence
Force magistrate that are in addition to or in substitution for, or that
modify, the rules of evidence that, apart from the regulations, would apply in
relation to such trials by virtue of subsection (1).
146A
Evidence etc. in proceedings before a summary authority
(1) This section applies to proceedings
before a summary authority (including proceedings for the purpose referred to
in subsection 111A(1)).
(2) The summary authority:
(a) must comply with:
(i) the rules of natural
justice; and
(ii) the Summary Authority
Rules; and
(b) consistently with those rules:
(i) must act with as
little legal formality or legal technicality as possible, while ensuring
fairness; and
(ii) is, subject to this
Act, not bound by the rules of evidence (whether statutory or common law), but
must comply with the basic principles of those rules relating to relevance,
reliability, weight and probative value; and
(iii) may admit any
documents or call any witnesses that the summary authority considers to be of
assistance and relevance; and
(iv) may give such weight as
the summary authority considers appropriate to any evidence admitted under
subparagraph (iii), having regard to the importance of the evidence in the
proceedings and its probative value.
Note: The Summary Authority Rules may make provision
in relation to the giving of testimony and other evidence: see paragraph
149(aa).
(3) Nothing in this section allows a person
to be compelled to testify against himself or herself, or to give particular
evidence, in proceedings before a summary authority, if doing so might tend to
incriminate the person or expose the person to a penalty.
(4) This section does not affect the law
relating to legal professional privilege.
147
Judicial notice of service matters
(1) In addition to the matters of which
judicial notice may be taken by a court under the rules of evidence referred to
in section 146, a court martial or the Defence Force magistrate shall take
judicial notice of all matters within the general service knowledge of the
tribunal or of its members.
(2) In proceedings before a summary
authority, the summary authority must take judicial notice of all matters
within the general service knowledge of the summary authority.
148
Record of proceedings to be kept
(1) A service tribunal shall keep a record of
its proceedings and shall include in that record such particulars as are
provided for by the rules of procedure.
(2) The President of a court martial or a
Defence Force magistrate may order that the whole or a specified part of a
record under subsection (1) that relates to proceedings before the court
martial or Defence Force magistrate is not to be published if the court martial
or Defence Force magistrate considers that such a publication would be
inappropriate, taking account of the interests of the security or defence of
Australia, the proper administration of justice, public morals or any other
matter it considers relevant.
Subdivision B—Use of video links and audio links by courts martial and
Defence Force Magistrates
148A
Testimony by video link or audio link
(1) The President of a court martial or a
Defence Force magistrate may, for the purposes of proceedings before the court
martial or Defence Force magistrate, direct or allow testimony to be given by
video link or audio link.
(2) The testimony must be given on oath or
affirmation unless:
(a) the person giving the testimony is
in a foreign country; and
(b) either:
(i) the law in force in
that country does not permit the person to give testimony on oath or
affirmation for the purposes of the proceedings; or
(ii) the law in force in
that country would make it inconvenient for the person to give testimony on
oath or affirmation for the purposes of the proceedings; and
(c) the President or Defence Force
magistrate is satisfied that it is appropriate for the testimony to be given
otherwise than on oath or affirmation.
(3) If the testimony is given otherwise than
on oath or affirmation, the court martial or Defence Force magistrate is to
give the testimony such weight as the court martial or Defence Force magistrate
thinks fit in the circumstances.
(4) The power conferred on the President of a
court martial or a Defence Force magistrate by subsection (1) may be
exercised:
(a) on the application of the accused
person or the Director of Military Prosecutions; or
(b) on the initiative of the President
of the court martial or the Defence Force magistrate.
(5) This section applies whether the person
giving testimony is in or outside Australia, but does not apply if the person
giving testimony is in New Zealand.
Note: See the Evidence and Procedure (New Zealand) Act 1994.
148B
Appearance of persons or submissions made by video link or audio link
(1) The President of a court martial or a
Defence Force magistrate may, for the purposes of proceedings before the court
martial or Defence Force magistrate, direct or allow a person:
(a) to appear before the court martial
or Defence Force magistrate; or
(b) to make a submission to the court
martial or Defence Force magistrate;
by way of video link or audio link.
(2) The power conferred by
subsection (1) may be exercised:
(a) on the application of the accused
person or the Director of Military Prosecutions; or
(b) on the initiative of the President
or Defence Force magistrate.
(3) This section applies whether the person
appearing is in or outside Australia, but does not apply if the person
appearing is in New Zealand.
Note: See the Evidence and Procedure (New Zealand) Act 1994.
148C
Conditions for use of video links and audio links
Video link
(1) The President of a court martial or a
Defence Force magistrate must not exercise the power conferred by subsection
148A(1) or 148B(1) in relation to a video link unless the President or Defence
Force magistrate is satisfied that the following conditions are met in relation
to the video link:
(a) the courtroom or other place where
the court martial or Defence Force magistrate is sitting is equipped with
facilities (for example, television monitors) that enable all eligible persons
present in that courtroom or place to see and hear the person (the remote
person) who is:
(i) giving the testimony;
or
(ii) appearing; or
(iii) making the submission;
by way of the video link;
(b) the place at which the remote
person is located is equipped with facilities (for example, television
monitors) that enable all eligible persons present in that place to see and
hear each eligible person who is present in the courtroom or other place where the
court martial or Defence Force magistrate is sitting;
(c) such other conditions (if any) as
are prescribed by the Court Martial and Defence Force Magistrate Rules in
relation to the video link;
(d) such other conditions (if any) as
are imposed by the court martial or Defence Force magistrate.
(2) The conditions that may be prescribed by the
Court Martial and Defence Force Magistrate Rules in accordance with
paragraph (1)(c) include conditions relating to:
(a) the form of the video link; and
(b) the equipment, or class of
equipment, used to establish the link; and
(c) the layout of cameras; and
(d) the standard of transmission; and
(e) the speed of transmission; and
(f) the quality of communication.
Audio link
(3) The President of a court martial or the
Defence Force magistrate must not exercise the power conferred by subsection
148A(1) or 148B(1) in relation to an audio link unless the President or Defence
Force magistrate is satisfied that the following conditions are met in relation
to the audio link:
(a) the courtroom or other place where
the court martial or the Defence Force magistrate is sitting is equipped with
facilities (for example, loudspeakers) that enable all eligible persons present
in that courtroom or place to hear the person (the remote person)
who is:
(i) giving the testimony;
or
(ii) appearing; or
(iii) making the submission;
by way of the audio link;
(b) the place at which the remote
person is located is equipped with facilities (for example, loudspeakers) that
enable all eligible persons present in that place to hear each eligible person
who is present in the courtroom or other place where the court martial or the
Defence Force magistrate is sitting;
(c) such other conditions (if any) as
are prescribed by the Court Martial and Defence Force Magistrate Rules in
relation to the audio link;
(d) such other conditions (if any) as
are imposed by the court martial or Defence Force magistrate.
(4) The conditions that may be prescribed by the
Court Martial and Defence Force Magistrate Rules in accordance with
paragraph (3)(c) include conditions relating to:
(a) the form of the audio link; and
(b) the equipment, or class of
equipment, used to establish the audio link; and
(c) the standard of transmission; and
(d) the speed of transmission; and
(e) the quality of communication.
Eligible persons
(5) For the purposes of the application of
this section to particular proceedings, eligible persons are such
persons as the court martial or the Defence Force magistrate conducting the
proceedings considers should be treated as eligible persons for the purposes of
the proceedings.
148D
Putting documents to a person by video link or audio link
If, in the course of an examination or
appearance of a person by video link or audio link in accordance with this
Subdivision, it is necessary to put a document to the person, the President or
Defence Force magistrate may direct or allow the document to be put to the
person:
(a) if the document is physically
present in the courtroom or other place where the court martial or the Defence
Force magistrate is sitting:
(i) by causing a copy of
the document to be transmitted to the place where the person is located; and
(ii) by causing the
transmitted copy to be put to the person; or
(b) if the document is physically
present in the place where the person is located:
(i) by causing the
document to be put to the person; and
(ii) by causing a copy of
the document to be transmitted to the courtroom or other place where the court
martial or the Defence Force magistrate is sitting.
148E
Administration of oaths and affirmations
An oath to be sworn, or an affirmation
to be made, by a person (the remote person) who is to give
testimony by video link or audio link in accordance with this Subdivision may
be administered:
(a) by means of the video link or
audio link, as the case may be, in a way that, as nearly as practicable,
corresponds to the way in which the oath or affirmation would be administered
if the remote person were to give testimony in the courtroom or other place
where the court martial or the Defence Force magistrate is sitting; or
(b) if the court martial or the
Defence Force magistrate allows another person who is present at the place
where the remote person is located to administer the oath or affirmation—by
that other person.
148EA Powers
conferred on President
A President must seek the advice of a
judge advocate before exercising a power conferred upon the President by this
Subdivision.
148F New Zealand proceedings
This Subdivision does not affect the
operation of the Evidence and Procedure (New Zealand) Act 1994.
Subdivision C—Rules of procedure for service tribunals
149
The Summary Authority Rules
The Judge Advocate General may, by
legislative instrument, make rules, to be known as the Summary Authority Rules,
providing for the practice and procedure to be followed by summary authorities
and, in particular, providing for:
(a) the attendance and compellability
of witnesses; and
(aa) the giving of testimony and other
evidence; and
(b) the production of documents; and
(c) the administration of oaths and
affirmations; and
(d) the forms to be used in relation
to proceedings before a summary authority; and
(e) the service of any process of a
summary authority; and
(f) charge sheets in proceedings
before a summary authority; and
(g) the manner and form of charges
brought before a summary authority; and
(h) the recording of proceedings of a
summary authority; and
(i) the reopening of proceedings of a
summary authority on request by a reviewing authority.
149A
The Court Martial and Defence Force Magistrate Rules
The Judge Advocate General may, by
legislative instrument, make rules, to be known as the Court Martial and
Defence Force Magistrate Rules, providing for:
(a) the practice and procedure to be
followed by the court martial or Defence Force magistrate and, in particular,
providing for:
(i) pre‑trial hearings and
directions; and
(ii) the attendance of
witnesses; and
(iv) the giving of testimony
and other evidence; and
(v) the production of
documents; and
(vi) the administration of
oaths and affirmations; and
(vii) the forms to be used in
relation to proceedings before the court martial or Defence Force magistrate;
and
(viii) the service of any
process of the court martial or Defence Force magistrate; and
(ix) charge sheets in
proceedings before the court martial or Defence Force magistrate; and
(x) the manner and form of
charges brought before the court martial or Defence Force magistrate; and
(xi) the recording of
proceedings of the court martial or Defence Force magistrate; and
(xii) the duties of the
Registrar in respect of the practice and procedure of the court martial or
Defence Force magistrate; and
(xiii) the maintenance of the
customs and traditions of the Defence Force in proceedings before the court
martial or Defence Force magistrate; and
(c) any matter required or permitted
by this Act to be prescribed by the Rules.
Part VIIIA—Review of proceedings of service tribunal
Division 1—Appointment of reviewing authorities
150
Appointment of reviewing authorities
The Chief of the Defence Force or a
service chief may, by instrument in writing, appoint an officer, or each
officer included in a class of officers, to be a reviewing authority for the
purpose of reviewing proceedings of service tribunals (whether all service tribunals
or service tribunals of a specified kind) and exercising any other powers and
functions that are conferred on reviewing authorities by this Act or the
regulations.
150A
Meaning of competent reviewing authority
A reviewing authority is a competent
reviewing authority for the purposes of reviewing the proceedings of a
service tribunal that relate to a particular charge only if the reviewing
authority did not exercise any of the powers or perform any of the functions of
a superior authority in relation to the charge.
Division 2—Automatic review by reviewing authority
152
Automatic review by reviewing authority
(1) As soon as practicable after a service
tribunal convicts a person of a service offence or gives a direction in
relation to a person under subsection 145(2) or (5), the service tribunal shall
transmit the record of the proceedings to a competent reviewing authority.
(2) A reviewing authority shall, as soon as
practicable after receiving a record of proceedings under subsection (1),
review the proceedings in accordance with this Part.
(3) After reviewing the proceedings, the
reviewing authority must give the person who was convicted of the service
offence, or who was the person in relation to whom a direction under subsection
145(2) or (5) was given, and the service tribunal, written notice of the
results of the review.
(4) The reviewing authority must complete the
review:
(a) within 30 days after receiving the
record referred to in subsection (1); or
(b) if this is not possible due to the
exigencies of service—as soon as practicable after the end of that period.
153
Review on petition to reviewing authority
(1) Where a service tribunal convicts a
person of a service offence or gives a direction in relation to a person under
subsection 145(2) or (5), the person may lodge with a competent reviewing
authority a petition for a review of the proceedings concerned.
(1A) The person must lodge the petition within
30 days after the person is given notice of the results of the review under
subsection 152(3) unless the reviewing authority extends the period during
which the petition may be lodged.
(1B) If the reviewing authority extends the
period during which the petition may be lodged, the petition must be lodged
within that extended period.
(2) Where:
(a) a person appeals, or applies for
leave to appeal, to the Defence Force Discipline Appeal Tribunal; and
(b) the Tribunal dismisses the appeal
or the application for leave to appeal;
the person may, within 60 days after that dismissal or
such further period as a competent reviewing authority allows, lodge with the
reviewing authority a petition for a review of the proceedings of the service
tribunal the subject of that appeal or application for leave to appeal.
(3) A petition under subsection (1) or
(2) shall set out the grounds on which the petitioner relies for the exercise
of the power of review in accordance with this Part.
(4) On receipt of a petition under
subsection (1) or (2), a reviewing authority shall, as soon as practicable
and, in any event, within 30 days after the receipt:
(a) review the proceedings in
accordance with this Part having regard to the grounds set out in the petition;
and
(b) notify the petitioner, in writing,
of the result of that review.
(5) Notwithstanding anything in
subsection (4), a reviewing authority shall not, in a review of
proceedings referred to in subsection (2), exercise any of his or her
powers under Division 3 or 4 other than his or her powers under
section 162.
154
Report to be obtained before commencement of review
(1) A reviewing authority shall not commence
a review without first obtaining a report on the proceedings from:
(a) in the case of a conviction, or a
direction given under subsection 145(2) or (5), by a court martial or Defence
Force magistrate—a legal officer appointed, by instrument in writing, for the
purposes of this section by the Chief of the Defence Force or a service chief
on the recommendation of the Judge Advocate General; or
(b) in any other case—a legal officer.
(1A) An appointment under paragraph (1)(a)
is for the period, not exceeding 3 years, specified in the instrument of
appointment.
(1B) A legal officer appointed under
paragraph (1)(a) may be reappointed for a further period or periods.
(2) Subject to subsection (4), a
reviewing authority, in making a review, is bound by any opinion on a question
of law set out in a report obtained under subsection (1).
(3) A reviewing authority may refer a report
obtained under subsection (1) to the Judge Advocate General or, if the
Judge Advocate General so directs, to a Deputy Judge Advocate General.
(4) On a reference under subsection (3)
of a report, the Judge Advocate General or the Deputy Judge Advocate General
may dissent from any opinion on a question of law set out in the report and, if
he or she does so, he or she shall furnish to the reviewing authority, in
writing, his or her own opinion on that question, which opinion is binding on
the reviewing authority.
155
Further review
(1) A review by a reviewing authority does
not prevent a further review of the proceedings concerned by the Chief of the
Defence Force or a service chief if it appears to the Chief of the Defence
Force or the service chief that there are sufficient grounds for a further
review.
(2) Subject to subsection (3), the Chief
of the Defence Force or a service chief shall conduct a further review under
subsection (1) in accordance with this Part and, for that purpose, the
Chief of the Defence Force or the service chief shall be deemed to be a reviewing
authority.
(3) The Chief of the Defence Force or a
service chief shall not commence a review without first obtaining a report on
the proceedings from the Judge Advocate General or, if the Judge Advocate
General so directs, from a Deputy Judge Advocate General.
(4) The Chief of the Defence Force or a
service chief, in making a review, is bound by any opinion on a question of law
set out in a report obtained under subsection (3).
156
Effect on reviews of appeals to Defence Force Discipline Appeal Tribunal
(1) Subject to subsection (2), where, at
any time before or after a reviewing authority commences to review proceedings
of a service tribunal that have resulted in a conviction or a prescribed
acquittal, the convicted person or the prescribed acquitted person, as the case
may be, lodges an appeal, or an application for leave to appeal, to the Defence
Force Discipline Appeal Tribunal, the reviewing authority shall not exercise
any of his or her powers under Division 3 or 4 in relation to that review.
(2) Where the Defence Force Discipline Appeal
Tribunal dismisses the appeal, or the application for leave to appeal, the
reviewing authority may proceed with a review, not being a review under
section 153, but shall not exercise any of his or her powers under Division 3
or 4 other than his or her powers under section 162.
(3) In this section, prescribed
acquitted person means a person who has been acquitted of a service
offence by a court martial or a Defence Force magistrate on the ground of
unsoundness of mind.
Division 3—Action on review of proceedings that have resulted in a
conviction
157
Interpretation
In this Division, review
means a review under this Part of proceedings of a service tribunal that have
resulted in a conviction.
158
Quashing of conviction etc.
(1) Subject to subsection (5), where in
a review it appears to the reviewing authority:
(a) that the conviction is
unreasonable, or cannot be supported, having regard to the evidence;
(b) that, as a result of a wrong
decision on a question of law, or of mixed law and fact, the conviction was
wrong in law and that a substantial miscarriage of justice has occurred;
(c) that there was a material
irregularity in the course of the proceedings and that a substantial
miscarriage of justice has occurred; or
(d) that, in all the circumstances of
the case, the conviction is unsafe or unsatisfactory;
the reviewing authority shall quash the conviction.
(2) Subject to subsection (5), where in
a review it appears to the reviewing authority that there is evidence that:
(a) was not reasonably available
during the proceedings;
(b) is likely to be credible; and
(c) would have been admissible in the
proceedings;
the reviewing authority shall receive and consider that
evidence and, if the reviewing authority considers that the conviction cannot
be supported having regard to that evidence, the reviewing authority shall
quash the conviction.
(3) Subject to subsection (5), where in
a review the reviewing authority is satisfied that, at the time of the act or
omission the subject of the charge, the convicted person was suffering from
such unsoundness of mind as not to be responsible, in accordance with law, for
that act or omission, the reviewing authority shall:
(a) quash the conviction;
(b) substitute for the conviction so
quashed an acquittal on the ground of unsoundness of mind; and
(c) direct that the person be kept in
strict custody until the pleasure of the Governor‑General is known.
(4) Where in a review it appears to the
reviewing authority that the court martial or the Defence Force magistrate
should have found that the convicted person, by reason of unsoundness of mind,
was not able to understand the proceedings against him or her and accordingly
was unfit to stand trial, the reviewing authority shall quash the conviction
and direct that the person be kept in strict custody until the pleasure of the
Governor‑General is known.
(5) A reviewing authority shall not quash a
conviction under subsection (3) or (4) if there are grounds for quashing
the conviction under subsection (1) or (2).
159
Person deemed to have been acquitted
For the purposes of this Act, where a
reviewing authority quashes a conviction of a person of a service offence and
does not order a new trial of the person for the offence, the person shall be
deemed to have been acquitted of the offence.
160
New trial
(1) Where in a review the reviewing
authority:
(a) quashes a conviction that was
recorded within the preceding 6 months; and
(b) considers that, in the interests
of justice, the person who was convicted should be tried again for the service
offence of which the person was convicted;
the reviewing authority may order a new trial of the
person for that offence.
(2) An order under subsection (1) for
the new trial of a person lapses unless the new trial commences within a period
of 6 months commencing on the day on which the order is made.
(3) Where a reviewing authority makes an
order under subsection (1) for a new trial of a person, the reviewing
authority may make such further orders for the custody of the person pending
the new trial as the authority thinks appropriate.
161
Substitution of conviction of alternative offence
(1) Where in a review the reviewing authority
quashes the conviction of a person of a service offence (in this section
referred to as the original offence) but considers:
(a) that the service tribunal could in
the proceedings have found the person guilty of another offence, being:
(i) a service offence that
is an alternative offence, within the meaning of section 142, in relation
to the original offence; or
(ii) a service offence with
which the person was charged in the alternative and in respect of which the
service tribunal did not record a finding; and
(b) that the service tribunal, by
reason of the finding of the service tribunal finding that the person was
guilty of the original offence, must have been satisfied beyond reasonable
doubt of facts that prove that the person was guilty of the other offence;
the reviewing authority may substitute for the conviction
of the original offence a conviction of the other offence.
(2) Where under subsection (1) a
reviewing authority substitutes for the conviction of the original offence a
conviction of another service offence, the reviewing authority may take such action
in relation to the convicted person as could have been taken under Part IV
by the service tribunal that convicted the convicted person of the original
offence if that service tribunal had convicted him or her of that other service
offence, but the reviewing authority:
(a) shall not impose a punishment for
that other service offence or make a reparation order with respect to that
other service offence unless a punishment was imposed for the original offence
or a reparation order was made with respect to the original offence, as the
case may be; and
(b) shall not impose a punishment for
that other service offence that is more severe than the punishment that was
imposed for the original offence and shall not make a reparation order with
respect to that other service offence that is for an amount that exceeds the
amount of the reparation order that was made with respect to the original
offence.
162
Review of action under Part IV
(1) Where in a review it appears to the
reviewing authority that the action taken by a service tribunal under
Part IV (whether by the imposition of a punishment or the making of an
order or both) in relation to a convicted person:
(a) is wrong in law; or
(b) is excessive;
the reviewing authority shall quash the punishment or revoke
the order or both quash the punishment and revoke the order, as the case may
be.
(2) Where:
(a) a court martial or a Defence Force
magistrate has taken a service offence into consideration in relation to a
convicted person under section 77 and the conviction of the convicted
person is quashed; or
(b) a reviewing authority considers
that a court martial or a Defence Force magistrate, in purporting to take a
service offence into consideration in relation to a convicted person under
section 77, exceeded the powers conferred by that section;
the reviewing authority shall annul the taking into
consideration of that service offence and, thereupon, that service offence
shall be deemed not to have been taken into consideration by the court martial
or Defence Force magistrate.
(3) Where in a review it appears to the
reviewing authority that a summary authority has imposed an elective punishment
on a convicted person otherwise than in accordance with section 111B or 131,
the reviewing authority shall quash the punishment.
(5) Where a reviewing authority quashes a
punishment or revokes an order under subsection (1) or (3) in relation to
a convicted person, the reviewing authority may take such action in relation to
the convicted person as could have been taken under Part IV by the service
tribunal that convicted the convicted person of the service offence of which he
or she was convicted, but the reviewing authority shall not:
(a) impose a punishment that is more
severe than the punishment that was imposed by the service tribunal;
(b) if the punishment imposed by the
service tribunal was a custodial punishment—impose a punishment other than a
custodial punishment;
(c) if the punishment imposed by the
service tribunal was not a custodial punishment—impose a custodial punishment;
or
(d) if the service tribunal made a
reparation order—make a reparation order for an amount that exceeds the amount
of the reparation order that was made by the service tribunal.
(6) Where in a review it appears to the
reviewing authority that a service tribunal has imposed a punishment of
imprisonment on a convicted person and has not fixed a non‑parole period during
which the person is not to be eligible to be released on parole under the
provisions of the Crimes Act 1914 in their application, by virtue of
subsection 72(1) of this Act, to the service tribunal, the reviewing authority
may fix such a non‑parole period.
(7) Section 72 applies in relation to
the fixing of a non‑parole period under subsection (6) as if the reviewing
authority were the service tribunal concerned.
(8) Where in a review it appears to the
reviewing authority that a service tribunal that has imposed a punishment of
detention on a convicted person should have made an order under subsection
78(1) suspending that punishment, the reviewing authority may, if he or she
thinks fit, make an order suspending that punishment or such part of that
punishment as has not been served.
(9) Where a reviewing authority makes an
order suspending a punishment of detention or such part of a punishment of
detention as has not been served, the punishment, or that part of the
punishment, does not begin, and shall not be put into execution, while the
suspension is in force.
Division 4—Action on review of proceedings that have resulted in an
acquittal on the ground of unsoundness of mind
163
Interpretation
In this Division, review
means a review under this Part of proceedings before a court martial or a
Defence Force magistrate that have resulted in a prescribed acquittal.
164
Quashing of prescribed acquittal etc.
(1) Subject to subsection (4), where in
a review it appears to the reviewing authority:
(a) that the prescribed acquittal is
unreasonable, or cannot be supported, having regard to the evidence;
(b) that, as a result of a wrong
decision on a question of law, or of mixed law and fact, the prescribed
acquittal was wrong in law and that a substantial miscarriage of justice has
occurred;
(c) that there was a material
irregularity in the course of the proceedings and that a substantial
miscarriage of justice has occurred; or
(d) that, in all the circumstances of
the case, the prescribed acquittal is unsafe or unsatisfactory;
the reviewing authority shall quash the prescribed
acquittal.
(2) Subject to subsection (4), where in a
review it appears to the reviewing authority that there is evidence that:
(a) was not reasonably available
during the proceedings;
(b) is likely to be credible; and
(c) would have been admissible in the
proceedings;
the reviewing authority shall receive and consider that
evidence and, if the reviewing authority considers that the prescribed
acquittal cannot be supported having regard to that evidence, the reviewing
authority shall quash the prescribed acquittal.
(3) Where in a review it appears to the
reviewing authority that the service tribunal should have found that the
person, by reason of unsoundness of mind, was unable to understand the
proceedings against him or her and accordingly was unfit to stand trial, the
reviewing authority shall quash the prescribed acquittal and direct that the
person be kept in strict custody until the pleasure of the Governor‑General is
known.
(4) A reviewing authority shall not quash a
prescribed acquittal under subsection (1) or (2) if there are grounds for
quashing the prescribed acquittal under subsection (3).
165
Person deemed to have been acquitted
For the purposes of this Act, where a
reviewing authority quashes a prescribed acquittal of a person of a service
offence and does not give a direction under subsection 164(3) with respect to
the person or order a new trial of the person for the offence, the person shall
be deemed to have been acquitted of the offence without qualification.
166
New trial
(1) Where in a review the reviewing
authority:
(a) quashes a prescribed acquittal
that was recorded within the preceding 6 months; and
(b) considers that, in the interests
of justice, the person who was acquitted should be tried again for the service
offence of which the person was acquitted;
the reviewing authority may order a new trial of the
person for that offence.
(2) An order under subsection (1) lapses
unless the new trial commences within a period of 6 months commencing on the
day on which the order is made.
(3) Where a reviewing authority makes an
order under subsection (1) for a new trial of a person, the reviewing
authority may make such further orders for the custody of the person pending
the new trial as the authority thinks appropriate.
Division 5—Action on review of certain punishments and orders that are
subject to approval by reviewing authority
167
Interpretation
In this Division, review
means a review of a punishment specified in section 172 or of an order
specified in that section.
168
Approved punishment or order to take effect as determined
Where in a review the reviewing
authority approves a punishment or an order, the reviewing authority shall
determine when the punishment or order is to take effect.
169
Punishments or orders not approved to be quashed or revoked
(1) Where in a review the reviewing authority
does not approve a punishment or an order, the reviewing authority shall quash
the punishment or revoke the order, as the case may be.
(2) Where a reviewing authority quashes a
punishment or revokes an order under subsection (1) in relation to a
convicted person, the reviewing authority may take such action in relation to
the convicted person as could have been taken under Part IV by the service
tribunal that convicted the convicted person of the service offence of which he
or she was convicted, but the reviewing authority shall not:
(a) impose a punishment that is more
severe than the punishment that was imposed by the service tribunal;
(b) if the punishment imposed by the
service tribunal was a custodial punishment—impose a punishment other than a
custodial punishment;
(c) if the punishment imposed by the
service tribunal was not a custodial punishment—impose a custodial punishment;
or
(d) if the service tribunal made a
reparation order—make a reparation order for an amount that exceeds the amount
of the reparation order that was made by the service tribunal.
Part IXA—Special procedures relating to certain minor disciplinary
infringements
169A
Definitions
In this Part:
disciplinary infringement means an act or
omission that constitutes:
(a) an offence against section 23,
27 or 29, subsection 32(1), section 35 or section 60; or
(b) an offence against section 24
in relation to an absence without leave for a period not exceeding 3 hours.
discipline officer means a discipline officer
appointed under section 169B.
junior officer means:
(a) in the Navy—an officer who holds a
rank of or below the rank of lieutenant (other than a person who holds the rank
of midshipman); or
(b) in the Army—an officer who holds a
rank of or below the rank of captain (other than a person who holds the rank of
officer cadet); or
(c) in the Air Force—an officer who
holds a rank of or below the rank of flight lieutenant (other than a person who
holds the rank of officer cadet).
officer cadet means a defence member who
holds:
(a) in the Navy—the rank of
midshipman; or
(b) in the Army or the Air Force—the
rank of officer cadet.
prescribed defence member means:
(a) in the Navy—a member of the
Defence Force who holds a rank of or below the rank of lieutenant; or
(b) in the Army—a member of the
Defence Force who holds a rank of or below the rank of captain; or
(c) in the Air Force—a member of the
Defence Force who holds a rank of or below the rank of flight lieutenant;
but does not include a defence member covered by a
determination in force under section 169BA.
relevant discipline officer, in relation to a
prescribed defence member, has the meaning given by section 169BB.
relevant officer means a member of the
Defence Force who holds a rank of non‑commissioned officer or a higher rank.
169B
Appointment of discipline officers
A commanding officer may, in writing,
appoint any of the following to be discipline officers:
(a) officers;
(b) warrant officers;
(c) sailors holding the rank of chief
petty officer;
(d) airmen holding the rank of flight
sergeant.
169BA
Service chief may exempt certain defence members
(1) A service chief may determine, in
writing, that a specified warrant officer, or a warrant officer included in a
specified class of warrant officers, is not a prescribed defence member
for the purposes of this Part.
(2) A determination under subsection (1)
is not a legislative instrument.
(3) A service chief may determine, in
writing, that any of the following is not a prescribed defence member
for the purposes of this Part:
(a) a specified sailor holding the
rank of chief petty officer;
(b) a sailor included in a specified
class of sailors holding the rank of chief petty officer;
(c) a specified airman holding the
rank of flight sergeant;
(d) an airman included in a specified
class of airmen holding the rank of flight sergeant.
(4) A determination under subsection (3)
is not a legislative instrument.
169BB
Relevant discipline officers
The following table sets out who is a relevant
discipline officer in relation to a prescribed defence member.
|
Item
|
Prescribed defence
member
|
Relevant discipline
officer
|
|
1
|
Junior officer
|
Discipline officer who is at least one rank senior to the
prescribed defence member
|
|
2
|
Officer cadet
|
Discipline officer who is at least 2 ranks senior to the
prescribed defence member
|
|
3
|
Warrant officer
Non‑commissioned officer
|
Discipline officer who is at least 2 ranks senior to the
prescribed defence member
|
|
4
|
Member below non‑commissioned rank
|
Discipline officer who is at least 2 ranks senior to the
prescribed defence member
|
169C
Jurisdiction of discipline officer
A relevant discipline officer, in
relation to a prescribed defence member, has jurisdiction to deal with that
member in respect of a disciplinary infringement if:
(a) the member has not been charged
under this Act with a service offence arising out of the act or omission that
constitutes the infringement; and
(b) the member has elected to be dealt
with by a discipline officer; and
(c) the member has not withdrawn the election.
169D
Issue of infringement notice
(1) If a relevant officer has reasonable
grounds for believing that a prescribed defence member has committed a
disciplinary infringement, the relevant officer may give the defence member an infringement
notice in relation to the infringement.
(2) An infringement notice is a notice that:
(a) gives particulars of the
infringement to which the notice relates; and
(b) informs the member to whom it is
given of:
(i) the member’s right to
elect to be dealt with, in relation to the infringement, by a discipline
officer if the member admits the infringement; and
(ii) the period within
which an election must be made; and
(iii) the penalties that may
be imposed by a discipline officer; and
(iv) the power of a relevant
officer to refer a matter for action under section 87.
(3) An infringement notice must be in
accordance with a form approved by the Chief of the Defence Force.
(4) A relevant officer does not have
authority to give an infringement notice to a prescribed defence member unless
the relevant officer is authorised in writing by a commanding officer to give
such notices.
(5) A relevant officer does not have
authority to give an infringement notice to a prescribed defence member in
relation to a disciplinary infringement unless the notice is given as soon as
is reasonably practicable after the relevant officer first has reasonable
grounds for believing that the member has committed the infringement.
169E
Election to be dealt with by discipline officer
(1) If a prescribed defence member has been
given an infringement notice, the member may elect to be dealt with, in
relation to the disciplinary infringement to which the notice relates, by a
discipline officer.
(2) If a prescribed defence member elects to
be dealt with, in relation to a disciplinary infringement, by a discipline
officer, the member is to be taken, for the purpose of being so dealt with but
for no other purpose, to have admitted the infringement.
(3) An election may only be made within the
period specified in the infringement notice.
(4) If:
(a) a prescribed defence member has
been given an infringement notice in relation to a disciplinary infringement;
and
(b) the defence member has not made an
election within the period specified in the notice;
a relevant officer may refer the matter to an authorised
member of the Defence Force to be dealt with according to section 87.
(5) A prescribed defence member may, at any
time before a punishment is imposed, withdraw an election.
169F
Powers of discipline officer
Punishments that may be imposed in respect of
disciplinary infringements
(1) A relevant discipline officer, in
relation to a prescribed defence member referred to in column 1 of an item of
the following table, may impose on the prescribed defence member, in respect of
a disciplinary infringement, a punishment set out in column 2 of that item.
|
Punishments that may be
imposed in respect of disciplinary infringements
|
|
Item
|
Column 1
Prescribed defence
member
|
Column 2
Punishment
|
|
1
|
Junior officer
Warrant officer
Non‑commissioned officer
|
Fine not exceeding the amount of the defence member’s pay
for one day
Restriction of privileges for a period not exceeding 2
days
Stoppage of leave for a period not exceeding 3 days
Extra duties for a period not exceeding 3 days
Extra drill for no more than 2 sessions of 30 minutes each
per day for a period not exceeding 3 days
Reprimand
|
|
2
|
Officer cadet
Member below non‑commissioned rank
|
Fine not exceeding the amount of the defence member’s pay
for one day
Restriction of privileges for a period not exceeding 2
days
Stoppage of leave for a period not exceeding 3 days
Extra duties for a period not exceeding 3 days
Extra drill for no more than 2 sessions of 30 minutes each
per day for a period not exceeding 3 days
Reprimand
|
Other powers
(2) A discipline officer may decide not to
impose a punishment in respect of a disciplinary infringement that the
discipline officer considers trivial.
(3) If a discipline officer thinks a
disciplinary infringement is too serious to be dealt with under this Part, the
discipline officer may decline to deal with the defence member under this Part.
(4) A discipline officer exercising
jurisdiction under this section is not to be taken to be a service tribunal for
the purposes of this Act.
(5) A discipline officer must not impose a
punishment except in accordance with this Part.
169FA
Commencement of punishments
(1) Subject to this Part, a punishment
imposed by a discipline officer takes effect immediately and a punishment for a
specific period commences on the day on which it is imposed.
(2) A discipline officer who imposes a
punishment for a specific period may impose the punishment for a period
beginning on a specified day no later than 14 days after the day on which the
punishment is imposed.
169FB
Consequences of punishments
(1) The Chief of the Defence Force or a
service chief may, by legislative instrument, make rules with respect to the
consequences, in relation to a prescribed defence member, that are to flow from
the imposition by a discipline officer on that member of any of the following
punishments:
(a) restriction of privileges;
(b) stoppage of leave;
(c) extra duties;
(d) extra drill.
(2) The commanding officer of a prescribed
defence member who is subject to a punishment referred to in
paragraph (1)(a) or (c) may moderate the consequences of that punishment
in relation to the member in such manner as the commanding officer considers
appropriate, having regard to the particular circumstances of the case and to
any directions, in writing, of the Chief of the Defence Force or a service
chief.
(3) A direction made under
subsection (2) is not a legislative instrument.
(4) Even if a prescribed defence member is
subject to a punishment of stoppage of leave, the commanding officer of the
member may, if he or she is satisfied that it is appropriate to do so, grant
leave of absence to the member.
169G
Procedure before discipline officer
(1) Subject to this section, the procedure
followed by a discipline officer is to be in accordance with any requirements
prescribed by the regulations.
(2) A prescribed defence member who elects to
be dealt with by a discipline officer is not to be represented before the
discipline officer.
(3) A prescribed defence member who elects to
be dealt with by a discipline officer may, when he or she appears before the
discipline officer, call witnesses and present evidence in relation to anything
relevant to the exercise by the discipline officer of his or her powers under
subsection 169F(1), (2) or (3).
169GA
Report by discipline officer
(1) As soon as practicable after the end of
each month, a discipline officer must give a report in accordance with
subsection (2) to the discipline officer’s commanding officer.
(2) The report must be in writing and must
contain the following information:
(a) the name of each prescribed
defence member dealt with, in relation to a disciplinary infringement, by the
discipline officer in the month to which the report relates;
(b) the nature of the disciplinary
infringement in relation to which each prescribed defence member referred to in
paragraph (a) was dealt with;
(c) the punishment (if any) that was
imposed in respect of each of those disciplinary infringements.
Note: A report under this section is a relevant
record for the purposes of section 169H.
169H
Destruction of records
(1) In this section, relevant record
means any part of a record that is kept by any means under a law of the
Commonwealth and relates to a person’s service as a member of the Defence
Force.
(2) Any part
of a relevant record that relates, in any way, to:
(a) the making by a prescribed defence
member of an election; or
(b) anything done by a discipline
officer under subsection 169F(1) or (2) as a result of the making of an
election;
must be destroyed at the end of a period
of 12 months beginning on the day on which the election was made or, if
anything was done by a discipline officer under subsection 169F(1) or (2) as a
result of the making of the election, the day on which the thing was so done.
169J
This Part not a bar to action under other provisions
A prescribed defence member is not
prevented from being dealt with under any other Part in respect of a service
offence merely because the offence arises out of an act or omission that
constitutes a disciplinary infringement for the purposes of this Part.
Part X—Execution and enforcement of punishments and orders
170
Warrants of commitment
(1) Subject to this section, an authorized
officer may:
(a) issue a warrant for the commitment
of a prisoner to a prison in a State or Territory; or
(b) issue a warrant for the commitment
of a detainee to a detention centre.
(2) A warrant issued under subsection (1)
shall specify:
(a) the name of the prisoner or
detainee;
(b) the place to which the prisoner or
detainee is to be committed; and
(c) the punishment that has been
imposed on the prisoner or detainee.
(3) A warrant under subsection (1) may
require all police members and members and special members of the Australian
Federal Police, or a specified member of the Defence Force who is not a police
member, to convey the prisoner or detainee specified in the warrant to such
prison or detention centre as is specified in the warrant and there to deliver
him or her into the custody of the officer in charge of the prison or detention
centre or some other officer doing duty at the prison or detention centre, and
the warrant may be executed by any police member or member or special member of
the Australian Federal Police or the member of the Defence Force specified in
the warrant, as the case requires.
(4) Where a person is delivered into custody
at a prison or detention centre in pursuance of a warrant under subsection (1),
the person may, subject to this Act, be detained in that prison or any other
prison in the same State or Territory as the first‑mentioned prison, or that or
any other detention centre, as the case requires, for as long as his or her
detention is necessary for the execution of the punishment by reason of which
the warrant was issued.
(5) In this section, detainee
means a convicted person on whom a punishment of detention has been imposed.
171
Commencement of punishments and orders
(1) Subject to this Act, a punishment
imposed, or an order made, by a service tribunal, a reviewing authority or the
Defence Force Discipline Appeal Tribunal takes effect forthwith and a
punishment for a specific period commences on the day on which it is imposed.
(1A) A summary authority who imposes a
punishment for a specific period may impose the punishment for a period
beginning on a specified day no later than 14 days after the day on which the
punishment is imposed.
(1C) A person on whom a punishment of dismissal
from the Defence Force is imposed may be kept in custody until the dismissal
takes effect.
(2) Subject to section 72, where 2 or
more punishments are to be cumulative, they shall take effect one after the
other in accordance with the order in which they are recorded.
172
Punishments and orders subject to approval
(1) The following punishments imposed by a
service tribunal do not take effect unless approved by a reviewing authority:
(a) imprisonment for life;
(b) imprisonment for a specific
period;
(c) dismissal from the Defence Force;
(d) segregated confinement for a
period exceeding 3 days;
(e) confinement to cell for a period
exceeding 3 days;
(f) extra drill for a period
exceeding 3 days;
(g) restriction of custodial
privileges for a period exceeding 7 days.
(2) The following punishments when imposed by
a summary authority do not take effect unless approved by a reviewing
authority:
(a) detention;
(b) reduction in rank;
(c) forfeiture of seniority;
(d) a fine imposed on a member of the
Defence Force that exceeds the amount of his or her pay for 14 days.
(3) A restitution order or a reparation order
imposed by a service tribunal does not take effect unless approved by a
reviewing authority.
(3A) A person on whom a punishment of
imprisonment for life or imprisonment for a specific period is imposed may be
kept in custody pending approval under subsection (1) of the punishment
and, if the punishment is approved, any day on which the person was so kept in
custody counts as a day of that imprisonment.
(4) A person on whom a punishment of
dismissal from the Defence Force is imposed may be kept in custody pending
approval under subsection (1) of the punishment.
(5) A person on whom a punishment of
detention is imposed by a summary authority may be kept in custody pending
approval under subsection (2) of the punishment and, if the punishment is
approved, any day on which the person was so kept in custody counts as a day of
that detention.
173
Suspension of operation of restitution orders and reparation orders
(1) Subject to subsection (2), the
operation of a restitution order or a reparation order, being a restitution
order or a reparation order made by a court martial or a Defence Force
magistrate is suspended:
(a) until the expiration of the period
during which, under the Defence Force Discipline Appeals Act 1955, an
application for leave to appeal, or an appeal, against the conviction in
relation to which the order was made may be lodged, but not in any case beyond
the time specified in paragraph (b); and
(b) if an application for leave to
appeal, or an appeal, against the conviction is duly lodged—until the
application is finally dismissed or is withdrawn or the appeal is finally
determined or abandoned.
(2) Where a reviewing authority is satisfied
that the title to the property in relation to which a restitution order is made
is not in dispute, the reviewing authority may direct that subsection (1)
shall not apply in relation to the order.
(3) Where the operation of a restitution
order or a reparation order is suspended by virtue of subsection (1), the
order does not take effect if the conviction in relation to which the order is
made is quashed on appeal.
174
Recovery of fines etc.
(1) The amount that is due and payable of any
fine imposed on a person under this Act or the Defence Force Discipline
Appeals Act 1955 may be:
(a) recovered by deduction from any
pay, wages or salary payable to the person by the Commonwealth; or
(b) without prejudice to recovery in
accordance with paragraph (a), recovered by action in a civil court of
competent jurisdiction as a debt due to the Commonwealth.
(2) An amount that is due and payable under
any reparation order made against a person may be recovered as follows:
(a) the amount may be recovered by
deduction from any pay, wages or salary payable to the person by the
Commonwealth and an amount equal to the amount so recovered may be paid by the
Commonwealth to the person in whose favour the reparation order was made; or
(b) without prejudice to recovery in
accordance with paragraph (a), the amount may be recovered by action in a
civil court of competent jurisdiction as a debt due to the person in whose
favour the reparation order was made.
(3) Where any fine or reparation is directed
to be paid by instalments and default is made in the payment of any instalment,
all instalments then remaining unpaid thereupon become due and payable.
(4) Nothing in this section affects any right
or remedy that a person may have, apart from this section, in respect of any
loss or damage occasioned by an offence.
175
Evidence of fine etc.
(1) The Registrar, an authorized officer, or
a person appointed or engaged under the Public Service Act 1999
performing duties in the Department, may issue a certificate stating that:
(a) a specified amount of a fine is
due and payable by a specified person under this Act or the Defence Force
Discipline Appeals Act 1955; or
(b) a specified amount is due and
payable by a specified person under a reparation order.
(2) A certificate purporting to be issued
under subsection (1) and purporting to be signed by the Registrar, an
authorized officer, or a person appointed or engaged under the Public
Service Act 1999 performing duties in the Department, shall be received in
any civil court without further proof and is prima facie evidence of the
facts stated in it.
176
Stay of execution of punishment
Where a service tribunal has imposed a
punishment on a convicted person and the convicted person:
(a) lodges a petition under
section 153 with respect to the conviction or punishment; or
(b) notifies a reviewing authority
that he or she has appealed, or applied for leave to appeal, under the Defence
Force Discipline Appeals Act 1955 against the conviction;
the reviewing authority may order that the execution of
the punishment shall be stayed in whole or in part pending the determination of
the appeal or petition.
177
Unlawful absence
Where a convicted person becomes
unlawfully at large during the period of his or her detention or imprisonment,
the time during which the convicted person is unlawfully at large shall be
deemed not to be time spent in serving that detention or imprisonment.
Part XA—Detainees and detention centres
178
Interpretation
In this Part, member of the staff,
in relation to a detention centre, means a member of the Defence Force on the
staff of a detention centre.
178A
Search of detainees
(1) Where the officer in charge of a
detention centre believes that it is necessary to do so for the purpose of
ascertaining whether there is concealed on a detainee of the detention centre,
or in his or her clothing, any thing that the detainee is not authorized to
have in his or her possession, the officer in charge of the detention centre
may direct a member of the staff of the detention centre to search the detainee
and the clothing that the detainee is wearing.
(2) The search shall be conducted in
accordance with the following provisions:
(a) the search shall be conducted in
the presence of at least 2 other members of the staff of the detention centre;
(b) the search shall not be conducted
in the presence of a person who is not the officer in charge, or a member of
the staff, of the detention centre;
(c) the detainee shall not be searched
by, or in the presence of, a person who is not of the same sex as the detainee.
(3) The member of the staff of the detention
centre directed to conduct the search may:
(a) require the detainee to remove any
clothing that the detainee is wearing;
(b) if the detainee refuses or fails
to comply with such a requirement—remove the clothing;
(c) use such reasonable force as is
necessary to conduct the search; and
(d) seize any thing of the kind
referred to in subsection (1) found in the course of the search.
178B
Fingerprints, photographs etc. of detainees
(1) Where the officer in charge of a detention
centre believes that it is necessary to do so, a member of the staff of the
detention centre may take prints of the hands, fingers, feet or toes, or
photographs, of a detainee of the detention centre.
(2) The member of the staff of the detention
centre may use such reasonable force as may be necessary in acting in
accordance with subsection (1).
(3) A copy of a print or photograph taken
under subsection (1) shall not be given to a person (other than the
officer in charge, or a member of the staff of, the detention centre) except in
accordance with the approval, in writing, of an authorized officer.
178C
Leave of absence of detainees
(1) Subject to any directions, in writing, of
the Chief of the Defence Force or a service chief, the officer in charge of a
detention centre may, in writing grant leave of absence to a detainee of the
detention centre on such conditions (if any) as he or she thinks fit.
(2) Any day on which a detainee of a
detention centre is on leave of absence from the detention centre counts as a
day of the detainee’s punishment of detention.
178D
Regulations relating to detention centres
The regulations may make provision for
or in relation to:
(a) the remission of punishments of
detention of detainees; and
(b) the conduct and administration of
detention centres.
Part XI—Judge Advocate General, Deputy Judge Advocates General,
Chief Judge Advocate, and Registrar of Military Justice
Division 1—Judge Advocate General and Deputy Judge Advocates General
179
Judge Advocate General and Deputy Judge Advocates General
(1) There shall be a Judge Advocate General,
who shall be appointed by the Governor‑General to hold his or her appointment
either on a full‑time basis or on a part‑time basis.
(2) The Governor‑General may appoint one or
more Deputy Judge Advocates General, who shall be so appointed to hold their
appointments either on a full‑time basis or on a part‑time basis.
(3) The Judge Advocate General shall have
such functions, powers and duties as are conferred on the Judge Advocate General
by this Act or any other law.
(4) A Deputy Judge Advocate General shall
exercise or perform such of the functions, powers or duties of the Judge
Advocate General as the Judge Advocate General directs.
180
Qualifications for appointment
(1) A person shall not be appointed as the
Judge Advocate General unless the person is or has been a Justice or Judge of a
federal court or of a Supreme Court of a State or Territory.
(2) A person shall not be appointed as a
Deputy Judge Advocate General unless:
(a) the person is or has been a
Justice or Judge of a federal court or of a Supreme Court of a State or
Territory; or
(b) the person is enrolled as a legal
practitioner and has been so enrolled for not less than 5 years.
(3) A defence member may be appointed as the
Judge Advocate General or as a Deputy Judge Advocate General.
181
Appointment of Judge Advocate General or Deputy Judge Advocate General not to
affect tenure etc.
(1) The appointment of the holder of a
judicial office as the Judge Advocate General or a Deputy Judge Advocate
General, or service by the holder of a judicial office as the Judge Advocate
General or a Deputy Judge Advocate General, does not affect his or her tenure
of that judicial office or his or her rank, title, status, precedence, salary,
annual or other allowances or other rights or privileges as the holder of that
judicial office and, for all purposes, his or her service as the Judge Advocate
General or a Deputy Judge Advocate General shall be taken to be service as the
holder of that judicial office.
(2) In subsection (1), judicial
office means an office of Justice of the High Court or of Judge of a
court created by the Parliament.
182
Arrangement for appointment of the holder of a judicial office of a State or of
the Northern Territory
(1) The Minister may, for the purpose of
appointing to the office of Judge Advocate General or Deputy Judge Advocate
General a person who is the holder of a judicial office of a State or of the
Northern Territory, enter into such arrangement with the appropriate Minister
of that State or that Territory, as the case may be, as is necessary to secure
that person’s services.
(2) An arrangement under subsection (1)
may provide for the Commonwealth to reimburse a State or the Northern Territory
with respect to the services of the person to whom the arrangement relates.
(3) In this section:
Minister, in relation to the Northern Territory, means a person holding an office referred to in section 34 of the Northern Territory (Self‑Government) Act 1978.
183
Terms and conditions of appointment etc.
(1) The Judge Advocate General or a Deputy
Judge Advocate General holds office for such period, not exceeding 7 years, as
is specified in the instrument of the Judge Advocate General’s appointment.
(3) The Judge Advocate General or a Deputy
Judge Advocate General holds office on such terms and conditions (if any) in
respect of matters not provided for by this Act as are determined by the
Governor‑General.
184
Oath or affirmation of Judge Advocate General and Deputy Judge Advocate General
(1) The Judge Advocate General or a Deputy
Judge Advocate General shall, before proceeding to discharge the duties of his
or her office, make and subscribe an oath or affirmation in accordance with the
form in Schedule 4.
(2) An oath or affirmation under this section
shall be made:
(a) in the case of the Judge Advocate
General—before a Judge of the Federal Court of Australia; or
(b) in the case of a Deputy Judge
Advocate General—before a Judge of the Federal Court of Australia or the
Supreme Court of a State or Territory.
185
Remuneration etc.
(1) Subject to this section, the Judge
Advocate General or a Deputy Judge Advocate General shall be paid such
remuneration as is determined by the Remuneration Tribunal but, if no determination
of that remuneration by the Tribunal is in operation, he or she shall be paid
such remuneration as is prescribed.
(2) The Judge Advocate General and a Deputy
Judge Advocate General shall be paid such allowances as are prescribed.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973.
(4) If a person who is a Justice or Judge of
a federal court or of a Supreme Court of a State or Territory is appointed as
the Judge Advocate General or as a Deputy Judge Advocate General, he or she is
not, while he or she receives salary or annual allowance as such a Justice or
Judge, entitled to remuneration under this Act.
(5) In the case of a defence member who is
the Judge Advocate General or a Deputy Judge Advocate General, if the
remuneration to which he or she would be entitled as the Judge Advocate General
or as a Deputy Judge Advocate General exceeds the pay to which he or she is
entitled as a defence member, he or she is to receive, in respect of his or her
office as the Judge Advocate General or as a Deputy Judge Advocate General,
only an amount equal to the excess.
186
Termination of appointment
(1) The Governor‑General may terminate the
appointment of the Judge Advocate General or a Deputy Judge Advocate General
(not being a Justice or Judge of a federal court or of a Supreme Court of a
State or Territory) by reason of the misbehaviour or physical or mental
incapacity of the Judge Advocate General or the Deputy Judge Advocate General,
as the case may be.
(2) If the Judge Advocate General or a Deputy
Judge Advocate General (not being a Justice or Judge of a federal court or of a
Supreme Court of a State or Territory) becomes bankrupt, applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or makes an assignment of his or her remuneration for
their benefit, the Governor‑General shall terminate the appointment of the
Judge Advocate General or the Deputy Judge Advocate General, as the case may
be.
(3) A Judge Advocate General or a Deputy
Judge Advocate General who is a Justice or Judge of a federal court or of a
Supreme Court of a State or Territory ceases to hold office if he or she no
longer holds office as such a Justice or Judge.
(4) A Deputy Judge Advocate General who is
not a Justice or Judge of a federal court or of a Supreme Court of a State or
Territory ceases to hold office if he or she ceases to be a legal practitioner.
187
Resignation
The Judge Advocate General or a Deputy
Judge Advocate General may resign his or her office by writing signed by him or
her and delivered to the Governor‑General.
188
Acting Judge Advocate General or Deputy Judge Advocate General
The Minister may appoint a person who is
eligible for appointment as Judge Advocate General or a Deputy Judge Advocate
General:
(a) to act as Judge Advocate General
or a Deputy Judge Advocate General, as the case may be, during a vacancy in the
office concerned, whether or not an appointment has previously been made to
that office; or
(b) to act as the Judge Advocate
General or a Deputy Judge Advocate General, as the case may be, during any
period, or during all periods, when the Judge Advocate General or a Deputy
Judge Advocate General is absent from duty or from Australia, or is, for any
other reason, unable to perform the functions of his or her office.
Note: For rules that apply to acting appointments,
see section 33A of the Acts Interpretation Act 1901.
Division 2—Chief Judge Advocate
188A
Chief Judge Advocate
(1) The Judge Advocate General may, by
instrument in writing, appoint an officer to be the Chief Judge Advocate.
(2) The appointment is for the period, not
exceeding 5 years, specified in the instrument of appointment.
(3) A Chief Judge Advocate may be reappointed
for a further period or periods, but must not hold office for a total of more
than 10 years.
188B
Role of the Chief Judge Advocate
(1) The Chief Judge Advocate is to provide
administrative assistance to the Judge Advocate General.
(2) Subject to subsection (3), the Judge
Advocate General may, by signed instrument, delegate all or any of his or her
powers to the Chief Judge Advocate.
(3) The Judge Advocate General must not
delegate his or her powers under any of the following provisions to the Chief
Judge Advocate:
(a) subsection 127(1);
(b) subsection 154(4);
(c) subsection 196(2).
(4) The Chief Judge Advocate is, in the
exercise of a delegated power or function, subject to the direction and control
of the Judge Advocate General.
188C
Eligibility requirements
A person is not eligible to be the Chief
Judge Advocate unless the person is:
(a) an officer holding a rank not
lower than the naval rank of commodore or the rank of brigadier or air
commodore; and
(b) a member of the judge advocates’
panel.
188D
Resignation
The Chief Judge Advocate may resign his
or her office by giving to the Judge Advocate General a signed notice of
resignation.
188E
Remuneration
(1) The Chief Judge Advocate is to be paid
the remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, he or she
is to be paid the remuneration that is prescribed.
(2) The Chief Judge Advocate is to be paid
the allowances that are prescribed.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973.
Division 3—The Registrar of Military Justice
188F
Registrar of Military Justice
There is to be a Registrar of Military
Justice.
188FA
Functions of the Registrar
(1) The function of the Registrar is to
assist the Judge Advocate General and the Chief Judge Advocate by providing
administrative and management services in connection with charges and trials
under this Act.
(2) In addition to his or her functions under
subsection (1), the Registrar also has:
(a) the functions conferred on the
Registrar by or under this Act or any other law of the Commonwealth; and
(b) such other functions as are
prescribed by the regulations.
188FB
Appointment of the Registrar
(1) The Registrar is to be appointed by the
Minister by written instrument.
(2) The Registrar holds office on a full‑time
basis.
(3) The Registrar holds office on the terms
and conditions (if any) in respect of matters not provided for by this Act that
are determined by the Minister.
188FC
Qualifications for appointment
A person must not be appointed as the
Registrar unless:
(a) the person is enrolled as a legal
practitioner and has been so enrolled for not less than 5 years; and
(b) the person is a member of the
Permanent Navy, the Regular Army or the Permanent Air Force or is a member of
the Reserves who is rendering continuous full‑time service; and
(c) the person holds a rank not lower
than the naval rank of captain or the rank of colonel or group captain.
188FD
Tenure
(1) The Registrar holds office for the period
specified in the instrument of appointment. The period must not exceed 5 years.
(2) The Registrar is eligible for
reappointment.
188FE
Resignation
The Registrar may resign his or her
appointment by giving the Minister a written resignation.
188FF
Oath or affirmation
(1) The Registrar must, before proceeding to
discharge the duties of his or her office, make and subscribe an oath or
affirmation in accordance with the form in Schedule 4.
(2) An oath or affirmation under this section
is to be made before:
(a) the Judge Advocate General; or
(b) a Deputy Judge Advocate General;
or
(c) the Chief Judge Advocate.
188FG
Remuneration
(1) Subject to this section, the Registrar is
to be paid the remuneration that is determined by the Remuneration Tribunal. If
no determination of that remuneration by the Tribunal is in operation, he or
she is to be paid the remuneration that is prescribed.
(2) The Registrar is to be paid the
allowances that are prescribed.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973.
188FH
Leave of absence
(1) The Registrar has the recreation leave
entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Registrar
leave of absence, other than recreation leave, on the terms and conditions as
to remuneration or otherwise that the Minister determines.
188FI
Outside employment
The Registrar must not:
(a) engage in practice as a legal
practitioner outside the duties of his or her office; or
(b) without the approval of the Minister,
engage in paid employment outside the duties of his or her office.
188FJ
Termination of appointment
(1) The Minister may terminate the
appointment of the Registrar for:
(a) misbehaviour; or
(b) physical or mental incapacity.
(2) The Minister must terminate the
appointment of the Registrar if the Registrar:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) is absent from duty, except on
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) engages in practice as a legal
practitioner outside the duties of his or her office; or
(d) without the approval of the Minister,
engages in paid employment outside the duties of his or her office; or
(e) fails, without reasonable excuse,
to comply with his or her obligations under section 188FK.
(3) The Registrar ceases to hold office if:
(a) he or she ceases to be enrolled as
a legal practitioner; or
(b) he or she is no longer:
(i) a member of the
Permanent Navy, the Regular Army or the Permanent Air Force; or
(ii) a member of the
Reserves who is rendering continuous full‑time service.
188FK
Standing obligation to disclose interests
(1) The Registrar must disclose any interest
that the Registrar has if that interest could conflict with the proper
performance of the functions of his or her office. Disclosure is required
whether or not there is any particular matter under consideration that gives
rise to an actual conflict of interest.
(2) Subsection (1) applies to interests:
(a) whether direct or indirect, and
whether or not pecuniary; and
(b) whether acquired before or after
the person’s appointment.
(3) The disclosure must be by notice in
writing given to the Minister as soon as practicable after the Registrar
becomes aware of the potential for conflict of interest.
188FL
Acting appointments
(1) The Minister may appoint a person to act
as the Registrar:
(a) during a vacancy in the office,
whether or not an appointment has previously been made to that office; or
(b) during any period, or during all
periods, when the Registrar is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of his or her
office.
Note: For rules that apply to acting appointments,
see section 33A of the Acts Interpretation Act 1901.
(3) The Minister must not appoint a person to
act as the Registrar unless:
(a) the person is enrolled as a legal
practitioner and has been so enrolled for not less than 5 years; and
(b) the person is a member of the
Permanent Navy, the Regular Army or the Permanent Air Force or is a member of
the Reserves who is rendering continuous full‑time service; and
(c) the person holds a rank not lower
than lieutenant commander, major or squadron leader.
188FM
Delegation
The Registrar may delegate all or any of
his or her powers and functions to:
(a) a defence member holding the rank
of lieutenant commander, major or squadron leader; or
(b) a person whose classification
level appears in Group 5 or a higher Group of Schedule 1 to the
Classification Rules under the Public Service Act 1999; or
(c) a person who is acting in a
position usually occupied by a person with a classification level of the kind
mentioned in paragraph (b).
Part XIA—Director of Military Prosecutions
Division 1—Establishment and functions of the Director of Military
Prosecutions
188G
Director of Military Prosecutions
There is to be a Director of Military
Prosecutions.
188GA
Functions of the Director of Military Prosecutions
(1) The Director of Military Prosecutions has
the following functions:
(a) to carry on prosecutions for
service offences in proceedings before a court martial or a Defence Force
magistrate, whether or not instituted by the Director of Military Prosecutions;
(b) to seek the consent of the
Director of Public Prosecutions as required by section 63;
(c) to make statements or give
information to particular persons or to the public relating to the exercise of
powers or the performance of duties or functions under this Act;
(d) to represent the service chiefs in
proceedings before the Defence Force Discipline Appeal Tribunal;
(e) to do anything incidental or
conducive to the performance of any of the preceding functions.
(2) In addition to his or her functions under
subsection (1), the Director of Military Prosecutions also has:
(a) the functions conferred on the
Director of Military Prosecutions by or under this Act or any other law of the
Commonwealth; and
(b) such other functions as are
prescribed by the regulations.
188GB
Appearances by and on behalf of Director of Military Prosecutions
In proceedings before a court martial or
a Defence Force magistrate, the Director of Military Prosecutions:
(a) may appear in person; or
(b) if the Director of Military
Prosecutions so authorises, may be represented by:
(i) if the proceedings are
held in Australia—a member of the Defence Force or a legal practitioner; or
(ii) if the proceedings are
held in a place outside Australia—a person referred to in subparagraph (i)
or a person qualified to practise before the courts of that place.
188GC
Right of Director of Military Prosecutions and staff to practise in their
official capacity
The Director of Military Prosecutions,
or a person assisting the Director of Military Prosecutions who is a legal
officer, is, in his or her official capacity:
(a) entitled to practise as a barrister,
solicitor, or barrister and solicitor, in a federal court or in a court of a
State or Territory; and
(b) entitled to all the rights and
privileges of a barrister, solicitor, or barrister and solicitor, as the case
may be, in that court;
whether or not he or she would, but for this section, be
entitled to practise in that court.
188GD
Undertakings by the Director of Military Prosecutions
(1) The Director of Military Prosecutions
may, if he or she considers it appropriate to do so, give to a person an
undertaking that:
(a) an answer that is given, or a
statement or disclosure that is made, by the person in the course of giving
evidence in proceedings for a service offence; or
(b) the fact that the person discloses
or produces a document or other thing in proceedings for a service offence; or
(c) any information, document or other
thing that is obtained as a direct or indirect consequence of an answer that is
given, a statement or disclosure that is made, or a document or other thing
that is disclosed or produced in proceedings for a service offence;
will not be used in evidence against the person in any
other proceedings for a service offence.
(2) If the
Director of Military Prosecutions gives an undertaking under subsection (1):
(a) an answer that is given, or a
statement or disclosure that is made, by the person in the course of giving
evidence in the proceedings; or
(b) the fact that the person discloses
or produces a document or other thing in the proceedings; or
(c) any information, document or other
thing that is obtained as mentioned in paragraph (1)(c);
as the case may be, is not admissible in evidence against
the person in any other proceedings for a service offence, other than
proceedings in respect of the falsity of evidence given by the person.
(3) The Director of Military Prosecutions
may, if he or she considers it appropriate to do so, give to a person an
undertaking that the person will not be prosecuted:
(a) for a specified service offence;
or
(b) in respect of specified acts or omissions
that constitute, or may constitute, a service offence.
(4) If the Director of Military Prosecutions
gives an undertaking to a person under subsection (3), no prosecution may
be instituted against the person in respect of the specified service offence or
a service offence in respect of the specified acts or omissions.
(5) An undertaking under subsection (3)
may be subject to any conditions that the Director of Military Prosecutions
considers appropriate.
188GE
Directions and guidelines by the Director of Military Prosecutions
(1) The Director of Military Prosecutions
may, by legislative instrument, give directions, or provide guidelines, in
relation to the prosecution of service offences to:
(a) a person who is an investigating
officer within the meaning of Part VI; or
(b) any other person who institutes or
carries on prosecutions for service offences.
(2) Without limiting the generality of subsection (1),
directions or guidelines under that subsection may relate to particular cases
and may specify:
(a) a service offence, being an
offence a matter relating to which is to be referred to the Director of
Military Prosecutions for the institution or carrying on of a prosecution for
that offence; or
(b) a class of service offences, being
offences matters relating to which are to be referred to the Director of
Military Prosecutions for the institution or carrying on of prosecutions for
those offences.
(3) The Director of Military Prosecutions
must give to the Minister a copy of each direction given or guideline provided
under subsection (1).
Note: The annual report prepared by the Director of
Military Prosecutions for a year under section 196B must include a copy of
each direction given or guideline provided under this section in the year, and
a copy of each direction given or guideline provided under this section as in
force at the end of that year.
Division 2—Administrative provisions about the Director of Military
Prosecutions
188GF
Appointment of the Director of Military Prosecutions
(1) The Director of Military Prosecutions is
to be appointed by the Minister by written instrument.
(2) The Director of Military Prosecutions
holds office on a full‑time basis.
(3) The Director of Military Prosecutions
holds office on the terms and conditions (if any) in relation to matters not
covered by this Act that are determined by the Minister.
188GG
Qualifications for appointment
A person must not be appointed as the
Director of Military Prosecutions unless:
(a) the person is enrolled as a legal
practitioner and has been so enrolled for not less than 5 years; and
(b) the person is a member of the
Permanent Navy, the Regular Army or the Permanent Air Force or is a member of
the Reserves who is rendering continuous full‑time service; and
(c) the person holds a rank not lower
than the naval rank of commodore or the rank of brigadier or air commodore.
188GH
Tenure
(1) The Director of Military Prosecutions
holds office for the period specified in the instrument of appointment. The
period must not exceed 5 years.
(2) The Director of Military Prosecutions is
eligible for reappointment, but must not hold office for a total of more than
10 years.
188GI
Resignation
The Director of Military Prosecutions
may resign his or her appointment by giving the Minister a written resignation.
188GJ
Oath or affirmation
(1) The Director of Military Prosecutions
must, before proceeding to discharge the duties of his or her office, make and
subscribe an oath or affirmation in accordance with the form in Schedule 4.
(2) An oath or affirmation under this section
is to be made before:
(a) the Judge Advocate General; or
(b) a Deputy Judge Advocate General;
or
(c) the Chief Judge Advocate.
188GK
Remuneration
(1) The Director of Military Prosecutions is
to be paid the remuneration that is determined by the Remuneration Tribunal. If
no determination of that remuneration by the Tribunal is in operation, he or
she is to be paid the remuneration that is prescribed.
(2) The Director of Military Prosecutions is
to be paid the allowances that are prescribed.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973.
188GL
Leave of absence
(1) The Director of Military Prosecutions has
the recreation leave entitlements that are determined by the Remuneration
Tribunal.
(2) The Minister may grant the Director of
Military Prosecutions leave of absence, other than recreation leave, on the
terms and conditions as to remuneration or otherwise that the Minister
determines.
188GM
Outside employment
The Director of Military Prosecutions
must not:
(a) engage in practice as a legal
practitioner outside the duties of his or her office; or
(b) without the approval of the Minister,
engage in paid employment outside the duties of his or her office.
188GN
Termination of appointment
(1) The Minister may terminate the
appointment of the Director of Military Prosecutions for:
(a) misbehaviour; or
(b) physical or mental incapacity.
(2) The Minister must terminate the
appointment of the Director of Military Prosecutions if the Director of
Military Prosecutions:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) is absent from duty, except on
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) engages in practice as a legal
practitioner outside the duties of his or her office; or
(d) without the approval of the Minister,
engages in paid employment outside the duties of his or her office; or
(e) fails, without reasonable excuse,
to comply with his or her obligations under section 188GO.
(3) The Director of Military Prosecutions
ceases to hold office if:
(a) he or she ceases to be enrolled as
a legal practitioner; or
(b) he or she is no longer:
(i) a member of the
Permanent Navy, the Regular Army or the Permanent Air Force; or
(ii) a member of the
Reserves who is rendering continuous full‑time service.
188GO
Standing obligation to disclose interests
(1) The Director of Military Prosecutions
must disclose any interest that the Director of Military Prosecutions has if
that interest could conflict with the proper performance of the functions of
his or her office. Disclosure is required whether or not there is any
particular matter under consideration that gives rise to an actual conflict of
interest.
(2) Subsection (1) applies to interests:
(a) whether direct or indirect, and
whether or not pecuniary; and
(b) whether acquired before or after
the person’s appointment.
(3) The disclosure must be by notice in
writing given to the Minister as soon as practicable after the Director of
Military Prosecutions becomes aware of the potential for conflict of interest.
188GP
Acting appointments
(1) The Minister may appoint a person to act
as the Director of Military Prosecutions:
(a) during a vacancy in the office,
whether or not an appointment has previously been made to that office; or
(b) during any period, or during all periods,
when the Director of Military Prosecutions is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of his or her
office.
Note: For rules that apply to acting appointments,
see section 33A of the Acts Interpretation Act 1901.
(3) The Minister must not appoint a person to
act as the Director of Military Prosecutions unless:
(a) the person is enrolled as a legal
practitioner and has been so enrolled for not less than 5 years; and
(b) the person is a member of the
Permanent Navy, the Regular Army or the Permanent Air Force or is a member of
the Reserves who is rendering continuous full‑time service; and
(c) the person holds a rank not lower
than the naval rank of commander or the rank of lieutenant‑colonel or wing
commander.
188GQ
Staff
The staff
necessary to assist the Director of Military Prosecutions are to be the
following:
(a) defence members made available for
the purpose by the appropriate service chief;
(b) persons engaged under the Public
Service Act 1999 and made available for the purpose by the Secretary of the
Department.
Division 3—Other matters
188GR
Delegation
The Director of Military Prosecutions
may delegate all or any of his or her powers to a defence member mentioned in
paragraph 188GQ(a) who is a legal officer.
Part XII—Miscellaneous
189
Royal prerogative of mercy
Nothing in this Act limits or affects
the royal prerogative of mercy.
190
Jurisdiction of civil courts in relation to offences
(1) Subject to the Constitution, a civil
court does not have jurisdiction to try a charge of a service offence.
(2) Subject to subsection (4), the
jurisdiction of a civil court to try a charge of a civil court offence is not
affected by this Act.
(4) A civil court does not have jurisdiction
to try a charge of a civil court offence that:
(a) is an ancillary offence in
relation to an offence against this Act (other than section 61) or the
regulations; and
(b) was committed by a person at a
time when the person was a defence member or a defence civilian.
191
Evidentiary certificate
(1) An authorized officer may issue a
certificate setting out such facts as the authorised officer considers relevant
with respect to:
(a) the acquittal or conviction of a
person of a service offence;
(b) the dismissal of a charge of a
service offence against a person under section 130, 132 or 135;
(c) the dismissal of a charge of an
offence against a person under previous service law; or
(d) the taking of a service offence
into consideration in relation to a person under section 77.
(2) A certificate purporting to be issued
under subsection (1) and purporting to be signed by an authorized officer
shall be received in evidence in any civil court or service tribunal without
further proof and is prima facie evidence of the facts stated in it.
192
Evidence of warrant of commitment
An instrument purporting to be a warrant
of commitment under section 170 and purporting to be signed by an
authorized officer shall be received in evidence in any civil court without
further proof and is prima facie evidence of the facts stated in it.
193
Protection of members of courts martial etc.
(1) A member of a court martial, a judge
advocate, a Defence Force magistrate, a summary authority or a reviewing
authority has, in the performance of his or her duties as such a member, judge
advocate, magistrate or authority, as the case may be, the same protection and
immunity as a Justice of the High Court.
(1A) The Judge Advocate General has, in the
performance of his or her duties as the Judge Advocate General, the same
protection and immunity as a Justice of the High Court.
(2) A legal practitioner or other person
appearing before a service tribunal on behalf of a party has the same
protection and immunity as a barrister has in appearing for a party in
proceedings in the High Court.
(3) Subject to this Act, a person summoned to
attend or appearing before a service tribunal as a witness has the same
protection as a witness in proceedings in the High Court.
(4) An action, suit or proceeding does not
lie against:
(a) the Director of Military
Prosecutions or a person assisting the Director of Military Prosecution; or
(b) the Registrar or a person
assisting the Registrar;
in relation to an act done or omitted to be done in good faith
in the exercise or purported exercise of a power, or the performance or
purported performance of a function, conferred by or under this Act or any
other law of the Commonwealth.
194
Persons found to be of unsound mind
(1) Where a direction has been given under
section 145, 158 or 164 that a person be kept in strict custody until the
pleasure of the Governor‑General is known, the Governor‑General may, by writing
signed by him or her, order that the person be detained in safe custody in such
place and in accordance with such directions, if any, as the Governor‑General
specifies in the order.
(2) The Governor‑General may, from time to
time, by writing signed by him or her, vary an order made under subsection (1),
either as to the place specified in the order or the directions so specified,
or as to both, in such manner as the person thinks fit.
(3) The Governor‑General may, by writing
signed by him or her, order that a person detained in safe custody in pursuance
of an order made under subsection (1) (being a person who, by reason of
unsoundness of mind, has been acquitted of the service offence with which he or
she was charged) be released from custody either unconditionally or subject to
such conditions as are specified in the order.
(4) Where the Governor‑General orders that a
person be released from custody subject to conditions, the Governor‑General
may, at any time, by writing signed by him or her:
(a) vary or revoke any or all of the
conditions or impose additional conditions; or
(b) revoke the order.
(5) Where an order in respect of a person
under subsection (3) is revoked or the person fails to comply with a
condition of such an order, the person may, without warrant, be arrested by any
constable and may be detained in safe custody in accordance with the order made
in respect of the person under subsection (1) as if the order under subsection (3)
had not been made.
(6) Upon the Governor‑General making an order
under subsection (3) that a person be released from custody
unconditionally or upon the Governor‑General revoking all the conditions
subject to which a person has been released from custody in pursuance of an
order made under that subsection, the order made under subsection (1) in
respect of the person ceases to have effect.
(7) Where an order is made under subsection (1)
in respect of a person who, by reason of unsoundness of mind, is unfit to be
tried, he or she shall be detained until the Governor‑General is satisfied by
the certificate in writing of not less than 2 medical practitioners that the
person has become of sound mind and is fit to be tried, and, upon the Governor‑General
being so satisfied, the Governor‑General may, by writing signed by him or her,
refer the charge to the Director of Military Prosecutions and, pending the decision
of the Director of Military Prosecutions under section 103, order the
removal of the person to such custody as is specified in the order.
(8) For the purposes of the preceding
provisions of this section, Governor‑General means the Governor‑General
acting with the advice of the Attorney‑General.
(9) The Governor‑General may make
arrangements with the Governor of a State or the Administrator of the Northern Territory for or in relation to the detention in institutions maintained by the
State or the Northern Territory, as the case may be, of persons in respect of
whom orders are made under subsection (1).
194A
Persons required as witnesses before service tribunals
Where:
(a) a person (in this section referred
to as the prisoner) who is required as a witness before a service
tribunal is undergoing a sentence of imprisonment in a State or Territory other
than the State or Territory in which the service tribunal is to sit during the
period when the prisoner will be so required as a witness; and
(b) the prisoner is produced in the
last‑mentioned State or Territory in pursuance of an instrument, issued under
the rules of procedure, directed to the person in charge of the prison where
the prisoner is undergoing the sentence of imprisonment;
then:
(c) the prisoner, while in the last‑mentioned State or Territory in pursuance of the instrument, shall be deemed to be
undergoing the sentence of imprisonment; and
(d) the person in whose custody the
prisoner is placed has the same powers, in relation to the detention or
disposition of the prisoner, as the person to whom the instrument was directed
has in the first‑mentioned State or Territory.
195
Supply of record of proceedings
(1) Subject to this section, a person who has
been tried by a court martial or a Defence Force magistrate is, upon
application made to the Attorney‑General before the expiration of a period of
10 years commencing on the date of the delivery of the verdict in the trial and
upon the payment of the prescribed fee (if any), entitled to be supplied with a
copy of the record of the proceedings of the trial.
(2) Subject to this section, where a person
tried by a court martial or a Defence Force magistrate has died before the
expiration of a period of 10 years commencing on the date of the delivery of
the verdict in the trial, his or her legal personal representative or, subject
to subsection (3), a person approved by the Attorney‑General as that
person’s representative is, upon application made to the Attorney‑General
before the expiration of a period of 1 year commencing on the date of the death
of the deceased person and upon the payment of the prescribed fee (if any),
entitled to be supplied with a copy of the record of the proceedings of the
trial.
(3) If there is a legal personal representative
of a deceased person, the Attorney‑General shall not approve a person as a
representative of a deceased person unless the Attorney‑General is satisfied
that the legal personal representative has declined to take action in relation
to the making of the application under subsection (2).
(4) Nothing in this section authorizes, or
requires, the supply of a copy of the record of evidence the publication of
which was prohibited by an order under subsection 140(2).
(5) Nothing in this section affects the power
of a civil court to make an order for the discovery of documents or the giving
of evidence in, or the production of documents to, a civil court.
(6) Where the record of the proceedings of a
trial to which an application under subsection (1) or (2) relates is held
by the Chief of the Defence Force or a service chief, the Attorney‑General may
make arrangements with the Chief of the Defence Force or the service chief for
the supply of a copy of the record to the applicant.
196
Judge advocates’ panel
(1) There shall be a panel of officers to be
known as the judge advocates’ panel.
(2) The Chief of the Defence Force or a
service chief may, by writing signed by the Chief of the Defence Force or the
service chief, appoint officers nominated by the Judge Advocate General to be
members of the judge advocates’ panel.
(2A) An appointment under subsection (2) is
for the period specified in the instrument of appointment. However, if the
specified period exceeds 3 years, the appointment is for a period of 3 years.
(2B) An officer appointed under
subsection (2) may be reappointed for a further period or periods.
(3) An officer is not eligible for
appointment to the judge advocates’ panel unless the officer is enrolled as a
legal practitioner and has been so enrolled for not less than 5 years.
(4) The Judge Advocate General shall require
an officer appointed under subsection (2) to make and subscribe an oath or
affirmation in accordance with the form in Schedule 5.
(5) An oath or affirmation under
subsection (4) shall be made before the Judge Advocate General or an
officer authorized, in writing, by the Judge Advocate General for the purpose.
196A
Annual report relating to Defence Force discipline law
(1) The Judge Advocate General shall, as soon
as practicable after each 31 December, prepare and furnish to the Minister
a report relating to:
(a) the operation of this Act, the
regulations, the rules of procedure; and
(b) the operation of any other law of
the Commonwealth or of the Australian Capital Territory in so far as that law
relates to the discipline of the Defence Force;
during the year ending on that 31 December.
(2) The Minister shall cause a copy of a
report furnished to the Minister under subsection (1) to be laid before
each House of the Parliament within 15 sitting days of that House after the day
on which the Minister receives the report.
(3) A report under subsection (1) shall
set out such statistical information as the Judge Advocate General considers
appropriate.
(4) The first report under subsection (1)
shall relate to the period commencing on the proclaimed date and expiring on
the next succeeding 31 December.
196B
Annual report relating to the operations of the Director of Military
Prosecutions
(1) The Director of Military Prosecutions
must, as soon as practicable after each 31 December, prepare and give to
the Minister, for presentation to the Parliament, a report relating to the
operations of the Director of Military Prosecutions during the year ending on
that 31 December.
(2) A report under subsection (1) must:
(a) set out such statistical
information as the Director of Military Prosecutions considers appropriate; and
(b) include:
(i) a copy of each
direction given or guideline provided under subsection 188GE(1) during the year
to which the report relates; and
(ii) a copy of each such
direction or guideline as in force at the end of that year.
(3) The first report under subsection (1)
is to relate to the period beginning on the day on which this section commences
and ending on the next 31 December.
197
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) The regulations shall not prescribe a
punishment for a person convicted of an offence under the regulations other
than:
(a) where the convicted person is a
member of the Defence Force—a punishment referred to in paragraph 68(1)(h),
(j), (k), (m), (n) or (p); or
(b) in any other case—a punishment
referred to in paragraph 68(1)(h).