Warren Snowdon (Lingiari, Australian Labor Party, Minister for Defence Science and Personnel) Share this | Hansard source

by leave—I present a supplementary explanatory memorandum to the bill and move government amendments (1) to (14) as circulated:

(1)    Clause 2, page 2 (table item 8), after “Parts”, insert “4A,”.

(2)    Schedule 1, item 2, page 4 (lines 16 to 32), omit subsections 111B(1) and (2), substitute:

        (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 the Australian Military Court.

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 the Australian Military Court, 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.

Note 3:  If a charge is tried by the Australian Military Court because of an election under subsection 111C(1), the charge will be tried by a Military Judge alone: see subsection 132AB(2A).

        (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)    Schedule 1, item 2, page 6 (lines 3 to 10), omit subsection 111C(5), substitute:

Decision not to elect to have charge tried by the Australian Military Court

        (5)    If:

             (a)    the accused person:

                   (i)    does not elect to have the charge tried by the Australian Military Court; 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.

(4)    Schedule 1, item 2, page 6 (line 23), omit “and try”.

(5)    Schedule 1, item 3, page 7 (lines 1 to 3), omit subsection 131(2), substitute:

        (2)    However, this section does not apply in relation to an accused person who is an officer referred to in paragraph 111B(2)(c).

(6)    Schedule 1, item 3, page 7 (lines 13 to 19), omit notes 1 and 2, substitute:

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 the Australian Military Court, 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 3:  If a charge is tried by the Australian Military Court because of an election under subsection 131AA(1), the charge will be tried by a Military Judge alone: see subsection 132AB(2A).

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.

(7)    Schedule 1, item 3, page 8 (lines 17 to 24), omit subsection 131AA(5), substitute:

Decision not to elect to have charge tried by the Australian Military Court

        (5)    If:

             (a)    the accused person:

                   (i)    does not elect to have the charge tried by the Australian Military Court; 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.

(8)    Schedule 1, item 4, page 9 (lines 13 to 18), omit the item, substitute:

4 After subsection 132AB(2)

Insert:

     (2A)    If the charge was referred to the Australian Military Court for trial because of an election by the accused person under subsection 111C(1) or 131AA(1), the charge is to be tried by a Military Judge alone.

4A Subsection 132AB(3)

Omit “subsection (2) does not apply”, substitute “neither subsection (2) nor (2A) applies”.

(9)    Schedule 7, item 2, page 57 (lines 16 to 30), omit section 103A, substitute:

103A Director of Military Prosecutions may decide that class 3 offence is to be tried by Military Judge alone

        (1)    This section applies in relation to a charge of a class 3 offence if:

             (a)    the charge is to be tried by the Australian Military Court; and

             (b)    the charge is not to be tried together with a charge of a class 1 offence or a class 2 offence.

        (2)    The Director of Military Prosecutions may, if he or she considers it appropriate in the circumstances, decide that the charge is to be tried by a Military Judge alone.

Note 1:  If 2 or more charges of class 3 offences against an accused person are being dealt with together, the Director of Military Prosecutions may make a decision under subsection (2) in relation to any or all of the charges.

Note 2:  If 2 or more accused persons are being dealt with together in respect of one or more charges of a class 3 offence, the Director of Military Prosecutions may make a decision under subsection (2) in relation to any or all of the charges against any or all of the accused persons.

Note 3:  The maximum punishment that may be imposed on a person who is convicted of a class 3 offence that is tried by a Military Judge alone, because of a decision by the Director of Military Prosecutions under subsection (2), is imprisonment for a period of 6 months: see clause 2 of Schedule 2.

        (3)    If the Director of Military Prosecutions makes a decision under subsection (2), he or she must inform the Registrar of this decision.

(10)  Schedule 7, item 3, page 57 (line 31) to page 58 (line 14), omit the item.

(11)  Schedule 7, item 4, page 58 (line 20), omit “paragraph 132A(3)(a)”, substitute “subsection 132AB(2)”.

(12)  Schedule 7, page 67 (after line 18), after Part 4, insert:

Part 4A—Trials by the Australian Military Court

Defence Force Discipline Act 1982

30A Subsection 122(1)

Repeal the subsection, substitute:

        (1)    A military jury must comprise:

             (a)    for a trial of one or more charges if at least one of the charges is of a class 1 offence—12 members; or

             (b)    for any other trial—6 members.

30B Section 132A

Repeal the section, substitute:

132A Trial of class 1 offences etc.

        (1)    This section applies to the trial of one or more charges if at least one of the charges is of a class 1 offence.

        (2)    The trial is to be by a Military Judge and military jury.

132AA Trials of class 2 offences etc.

        (1)    This section applies to the trial of one or more charges if:

             (a)    at least one of the charges is of a class 2 offence; and

             (b)    none of the charges is of a class 1 offence.

        (2)    The trial is to be by a Military Judge and military jury, unless:

             (a)    if one accused person only is to be tried—the accused person elects to have the charge, or (if 2 or more charges are to be tried together) all the charges, tried by a Military Judge alone; or

             (b)    if 2 or more accused persons are to be tried together—all the accused persons elect to have the charge, or (if 2 or more charges are to be tried together) all the charges, tried by a Military Judge alone.

        (3)    If the accused person, or all the accused persons, make an election under subsection (2), the trial is to be by a Military Judge alone.

132AB Trials of class 3 offences

        (1)    This section applies to a charge of a class 3 offence, unless section 132A or 132AA applies to the charge.

        (2)    If the Director of Military Prosecutions has decided, under subsection 103A(2), that the charge is to be tried by a Military Judge alone, the charge is to be tried by a Military Judge alone.

Note:   The maximum punishment that may be imposed on a person who is convicted of a class 3 offence that is tried by a Military Judge alone, because of a decision by the Director of Military Prosecutions under subsection 103A(2), is imprisonment for a period of 6 months: see clause 2 of Schedule 2.

        (3)    If subsection (2) does not apply to the charge, the trial is to be by a Military Judge alone, unless:

             (a)    if one accused person only is to be tried—the accused person elects to have the charge, or (if 2 or more charges are to be tried together) all the charges, tried by a Military Judge and military jury; or

             (b)    if 2 or more accused persons are to be tried together—any of the accused persons elects to have the charge, or (if 2 or more charges are to be tried together) all the charges, tried by a Military Judge and military jury.

        (4)    If the accused person, or any of the accused persons, makes an election under subsection (3), the charge is to be tried by a Military Judge and military jury.

(13)  Schedule 7, item 35, page 69 (line 7), omit “subsection 132A(2) or paragraph 132A(3)(c)”, substitute “subsection 132AA(2) or 132AB(3)”.

(14)  Schedule 8, page 73 (after line 27), after item 4, insert:

4A Application of amendments to trials by the Australian Military Court of multiple charges or accused persons together

The amendments made by items 2, 30A and 30B of Schedule 7 to this Act apply in relation to a charge of a service offence against an accused person that is to be tried by the Australian Military Court if, before the commencement of those items, the accused person:

             (a)    had not made an election in relation to the charge under subsection 132A(2) or (3) of the Defence Force Discipline Act 1982, as in force before the commencement of those items; and

             (b)    had not been asked to plead in relation to the charge.

This is an important amendment—so much so that the passage of the bill is very opportune. The amendment will introduce some efficiency into the process of summary justice. Essentially, it is designed to streamline the handling of trials where there is more than one offence but where those offences range in seriousness—that is, between classes 1, 2 and 3. Where there are multiple offences, they will be bundled together and dealt with together according to the process for the most serious of the offences. This may be either at the summary level—for all minor offences—or, for more serious offences, before a single judge of the Military Court or perhaps even a judge and jury. It also provides for more than one offender. Provision is also made for the defence military prosecutor to use his or her discretion in determining this process. Allowance is also made for circumstances where the accused has made an election for a trial in preference to a summary process.

This is a straightforward issue but, as we can see from the amendment, it is indeed very complex in the drafting. I may also say that it is, perhaps, inevitable in a matter such as this, where the reform to the military justice system is so far-reaching, that operational realities in this new legal regime might be unforeseen. This is one such instance, and no doubt we will see further need in due course to undertake some finetuning. I commend the amendment to the committee.

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