1 Name
of Regulations [see Note
1]
These Regulations are the Defence Force
Discipline Appeals Regulations 1957.
2 Definitions
Act means the Defence Force Discipline
Appeals Act 1955.
Deputy Registrar means a Deputy Registrar
appointed under subsection 19 (2) of the Act.
detention centre has the same meaning as in
the Defence Force Discipline Act 1982.
legal practitioner has the same meaning as in
section 39 of the Act.
Registrar means the Registrar of the Defence
Force Discipline Appeal Tribunal but does not include a Deputy Registrar.
Registrar of Military Justice means the
Registrar within the meaning of the Defence Force Discipline Act 1982.
3 Period
for appeal from a decision of a single member of the Tribunal
For the purposes of subsection 17 (2) of the Act,
the prescribed period within which a person affected by a decision given by a
single member of the Tribunal may appeal to the Tribunal from the decision is a
period of 10 days from the day on which he or she is notified of the decision.
9 Lodgement
of appeals etc
(1) For the purpose of paragraph 21 (1) (b) of the Act,
the following persons are prescribed, namely:
(a) a Deputy Registrar;
(ab) the Registrar of Military Justice;
(b) in the case of
an appellant, other than an appellant referred to in paragraph (c), (d) or
(e) — the officer commanding any unit of the Defence Force;
(c) where the appellant is in custody on board a
ship, other than a ship of the Australian Navy, being a ship on board which is
a body, contingent or detachment of the Defence Force — the officer
commanding the body, contingent or detachment;
(d) where the appellant is confined in a
detention
centre — the officer in charge of the detention centre;
(e) where the appellant is confined in a civil
prison in Australia — the Governor of the prison.
(2) Where an appeal or an application for leave to
appeal is lodged with a person referred to in subregulation (1), that person
shall forward the appeal or application to the Registrar.
10 Giving
records of court martial proceedings etc to Tribunal
(1) If an appeal or application for leave to appeal
against a conviction or prescribed acquittal by a court martial or Defence
Force magistrate is lodged under the Act, the Registrar of Military Justice
must, if so requested by the Registrar, give:
(a) a record of proceedings of the court martial
or Defence Force magistrate; and
(b) a record of any review with respect to the
proceedings of the court martial or Defence Force magistrate; and
(c) documents that were before the court
martial, Defence Force magistrate or reviewing authority in connection with the
proceedings, as the case may be;
to the Tribunal for the purposes of that appeal or application.
(2) If a record or document given to the Tribunal under
subregulation (1) is no longer required for the purposes of the appeal or
application for leave to appeal in respect of which it was furnished, the
Registrar must return the record or document to the Registrar of Military
Justice.
11 Legal
aid
(1) An appellant may, within a period of 14 days, or
such longer period as the Tribunal allows, from the day on which the appellant lodged
his or her appeal or application for leave to appeal, apply to the Tribunal for
the approval of the Tribunal to the granting of legal aid to the appellant
under this regulation.
(2) An application under subregulation (1) must be
accompanied by a statutory declaration made by the appellant setting out such
information as is necessary to enable the Tribunal to determine whether the appellant’s
means are insufficient to enable him or her to prosecute the appeal or
application for leave to appeal.
(3) If, upon an application being made to the Tribunal
under this regulation, the Tribunal is satisfied:
(a) that the appellant has insufficient means to
enable him or her to prosecute his or her appeal or application for leave to
appeal; and
(b) that it appears desirable in the interests of
justice that legal aid should be granted to the appellant under this
regulation,
the Tribunal may, by order, approve the granting to the appellant
of legal aid under this regulation.
(4) If the Tribunal approves the granting to an
appellant of legal aid under this regulation, the Attorney‑General may
arrange for one or more legal practitioners to represent the appellant at the
hearing of the appeal or application for leave to appeal, or of a matter
preliminary or incidental to the appeal.
(5) Where, under subregulation (4), the Attorney‑General
arranges for a legal practitioner to represent an appellant, the legal
practitioner shall be paid by the Commonwealth such amount for fees and
disbursements as is determined by the Attorney‑General.
12 Discontinuance
of Appeals etc
An appellant may, by
notice in writing to the Registrar:
(a) withdraw an
application for leave to appeal; or
(b) discontinue an appeal;
at any time before the hearing of the application is commenced.
13 Manner
of enforcing order for payment of costs
An order made under subsection 37 (3) of the Act
for the payment of the amount of any costs may be enforced:
(a) by the Commonwealth suing for and recovering
the amount in a court of competent jurisdiction as if the amount were a debt
due to the Commonwealth; or
(b) by deducting the amount from any pay and
allowances earned by the appellant as a member of the Defence Force,
or partly in one way and partly in the other way.
16 Appellant
in custody
(1) Where an appellant in custody is entitled to be present
at the hearing of his or her appeal or application for leave to appeal, or of a
matter preliminary or incidental to the appeal, the Registrar shall transmit to
the person who has the custody of the appellant a certificate signed by the
Registrar stating:
(a) that the appellant is so entitled; and
(b) particulars of the place where, and of the
times at which, the appeal or application for leave to appeal, or the matter
preliminary or incidental to the appeal, as the case may be, will be heard.
(2) Where a person who has the custody of an appellant
receives a certificate under subregulation (1), he or she shall, and by these
regulations is authorized to, take such steps as are necessary to ensure:
(a) that the appellant is taken to the place
specified in the certificate at the times so specified; and
(b) that the appellant
will continue to be present at that place during the hearing of the appeal or
application for leave to appeal, or of the matter preliminary or incidental to
the appeal, as the case may be.
(3) Where an appellant in custody is to be taken to a
place at which he or she is entitled to be present for the purposes of the Act,
the person who has the custody of the appellant shall ensure that the appellant
is under guard:
(a) during the time the appellant is travelling
to, and returning from, the place; and
(b) unless the Tribunal otherwise orders, during
the time the appellant is present at the place.
17 Registry
(1) There shall be a Registry of the Tribunal, which
shall be at such place as the President directs.
(2) The Registrar shall have the custody of such of the
records of the Tribunal as are kept in the Registry and of the documents lodged
or filed with the Registrar or a Deputy Registrar.
(3) The Registrar shall keep:
(a) proper records of proceedings before the
Tribunal and of documents of which he or she has the custody; and
(b) such indexes as will enable documents of
which he or she has the custody to be referred to.
18 Notification
of hearing
The Registrar must, as soon as practicable before
the hearing to determine a question of law, the hearing of an appeal, the
hearing of an application for leave to appeal, or the hearing of a matter
preliminary or incidental to an appeal, notify the following persons, in
writing, of the time, date and place of the hearing:
(a) the appellant or the legal practitioner, if
any, by whom the appellant is to be represented at the hearing;
(b) the Chief of the Defence Force, or service
chief, whose duty it is to undertake the defence of the appeal, application or
matter by an appellant.
19 Copy
of regulations to be supplied
The Registrar shall, as soon as practicable after he
or she receives an application for leave to appeal, supply the appellant with a
copy of these regulations free of charge.
21 Assistant
Registrar
(1) In this regulation, the
assistant Registrar means:
(a) where there is one Deputy Registrar
only — that Deputy Registrar; or
(b) where there is more than one Deputy Registrar —
the Deputy Registrar appointed by the President to be the assistant Registrar.
(2) In the event of the absence, through illness or
otherwise, of the Registrar or of a vacancy in the office of Registrar, the
assistant Registrar has all the powers and functions, and shall perform all the
duties, of Registrar during the absence or vacancy.
22 Fees
to witnesses
The allowances payable under subsection 34 (1) of
the Act to a witness (other than a member of the Defence Force rendering
service) are such fees and travelling expenses as the Registrar thinks fit to
allow in accordance with the scale in the Second Schedule to the Public Works
Committee Regulations as in force from time to time under the Public Works
Committee Act 1969.
23 Fees
for supplying copies
Where a copy of a document relating to an appeal is
supplied by the Registrar to the appellant, the appellant shall pay to the
Registrar a fee of:
(a) where the number of pages of photocopy
required to reproduce the document does not exceed 50 pages — $12; or
(b) where the number of pages of photocopy
required to reproduce the document exceeds 50 pages — $12 plus 10 cents
for each page of photocopy required in excess of 50.
24 Procedure
following decision on appeal, application or matter
(1) When the Tribunal makes its decision on a question of
law, an appeal, an application or a matter, the Tribunal must, as soon as
practicable after making the decision, prepare a written statement that sets
out the decision of the Tribunal on the question of law, appeal, application or
matter.
(2) The Tribunal must, as soon as practicable after
preparing a written statement under subregulation (1), provide a copy of
the statement to the Registrar.
(3) The Registrar must, as soon as practicable after
receiving a written statement under subregulation (2), give to the Registrar of
Military Justice:
(a) a copy of the statement; and
(b) a copy of the record of proceeding of the
Tribunal on the question of law, appeal, application or matter.