Commonwealth: Defence Legislation Amendment Act 2006 (Cth)

Defence Legislation Amendment Act 2006 Act No. 159 of 2006 as amended This compilation was prepared on 16 July 2008 [This Act was amended by Act No. 73 of 2008] Amendment from Act No. 73 of 2008 [Schedule 2 (item 5) amended item 235 of Schedule 1 Schedule 2 (item 5) commenced immediately after 1 October 2007] Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—The Australian Military Court Part 1—Main amendments Defence Force Discipline Act 1982 Defence Force Discipline Appeals Act 1955 Judges' Pensions Act 1968 Part 2—Consequential amendments Defence Act 1903 Defence Force Discipline Act 1982 Defence Force Discipline Appeals Act 1955 Migration Act 1958 Part 3—Application and transitional provisions Division 1—Definitions Division 2—Application of amendments Division 3—Transitional provisions Schedule 2—Other amendments Part 1—Defence Counsel Services Defence Force Discipline Act 1982 Part 2—Chief of the Defence Force Commission of Inquiry Defence Act 1903 Schedule 3—Amendments to remove gender‑specific language Defence Force Discipline Appeals Act 1955 An Act to amend legislation relating to defence, and for related purposes [Assented to 11 December 2006] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Defence Legislation Amendment Act 2006. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 11 December 2006 2. Schedule 1 A single day to be fixed by Proclamation. 1 October 2007 However, if any of the provisions have not commenced before 1 October 2007, they commence on that day. 3. Schedules 2 and 3 The day on which this Act receives the Royal Assent. 11 December 2006 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—The Australian Military Court Part 1—Main amendments Defence Force Discipline Act 1982 1 Subsection 3(1) Insert: audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places. 2 Subsection 3(1) Insert: Australian Military Court means the court created under section 114. 3 Subsection 3(1) Insert: Australian Military Court Rules means the rules made under section 149A. 4 Subsection 3(1) Insert: Chief Military Judge means the person appointed under section 188AC. 5 Subsection 3(1) Insert: class 1 offence means a service offence that is specified to be a class 1 offence in the table in clause 1 of Schedule 7. 6 Subsection 3(1) Insert: class 2 offence means a service offence that is: (a) specified to be a class 2 offence in the table in clause 1 of Schedule 7; or (b) neither a class 1 offence nor a class 3 offence. 7 Subsection 3(1) Insert: class 3 offence means a service offence that: (a) is specified to be a class 3 offence in the table in clause 1 of Schedule 7; or (b) both: (i) has a maximum penalty of not greater than 5 years imprisonment or is not punishable by imprisonment; and (ii) is not specified to be a class 1 offence or a class 2 offence in the table in clause 1 of Schedule 7. 8 Subsection 3(1) Insert: Military Judge means: (a) a person appointed under section 188AP; and (aa) except in Divisions 2 and 2A of Part XI, a person appointed as an acting Military Judge under section 188BB; and (b) except in section 188AN and Division 2A of Part XI, the Chief Military Judge. 9 Subsection 3(1) Insert: military jury means a jury constituted in accordance with this Act (including the Australian Military Court Rules) for the trial of a charge of a service offence that is to be tried by a Military Judge and military jury. 10 Subsection 3(1) Insert: video link means facilities (for example, closed‑circuit television facilities) that enable audio and visual communication between persons in different places. 11 Divisions 3, 4 and 5 of Part VII Repeal the Divisions, substitute: Division 3—Australian Military Court 114 Creation of the Australian Military Court (1) A court, to be known as the Australian Military Court, is created by this Act. Note 1: The Australian Military Court is not a court for the purposes of Chapter III of the Constitution. Note 2: The Australian Military Court is a service tribunal for the purposes of this Act: see the definition of service tribunal in subsection 3(1). (1A) The Australian Military Court is a court of record. (2) The Australian Military Court consists of: (a) the Chief Military Judge; and (b) such other Military Judges as from time to time hold office in accordance with this Act. 115 Jurisdiction (1) Subject to section 63, the Australian Military Court has jurisdiction to try any charge against any person. (2) However, the Australian Military Court does not have jurisdiction to try a charge of a custodial offence. (3) The Australian Military Court has jurisdiction to take action under Part IV in relation to a convicted person if the conviction had been referred to the Court under subsection 103(5) for that purpose. (4) Before taking action under subsection (3), the Australian Military Court must hear evidence relevant to the determination of what action should be taken. 116 Exercise of jurisdiction (1) For the purposes of the exercise of the jurisdiction of the Australian Military Court, the Court is to be constituted by a single Military Judge. (2) The Australian Military Court constituted by a Military Judge may sit and exercise the jurisdiction of the Court even if the Court constituted by another Military Judge is at the same time sitting and exercising the jurisdiction of the Court. 117 Venue (1) The Australian Military Court may sit at any place in or outside Australia. (2) The Australian Military Court may, at any stage of proceedings in the Court, order that: (a) the proceedings; or (b) a part of the proceedings; be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court imposes. 118 Referral of cases to the Australian Military Court and nomination of Military Judges Referral of charges (1) The Registrar must refer a charge to the Australian Military Court if the Director of Military Prosecutions requests the Registrar to do so. (2) The Chief Military Judge must nominate the Military Judge who is to try the charge. Referral of convictions (3) The Registrar must refer a conviction to the Australian Military Court to take action under Part IV in relation to a convicted person if the Director of Military Prosecutions requests the Registrar to do so. (4) The Chief Military Judge must nominate the Military Judge who is to take action in relation to the person. 119 Seal of the Australian Military Court (1) The Australian Military Court is to have a seal, and the design of the seal is to be determined in writing by the Minister. (2) The seal of the Australian Military Court must be kept in such custody as the Chief Military Judge directs. (3) The seal of the Australian Military Court must be affixed to documents as provided by this or any other Act or by the Australian Military Court Rules. (4) A determination made under subsection (1) is not a legislative instrument. 120 Stamp of the Australian Military Court (1) There are to be one or more Australian Military Court stamps. For this purpose, an Australian Military Court stamp is a stamp the design of which is, as nearly as practicable, the same as the design of the seal of the Australian Military Court. (2) A document or a copy of a document marked with an Australian Military Court stamp is as valid and effectual as if it had been sealed with the seal of the Australian Military Court. (3) An Australian Military Court stamp must be affixed to documents as provided by this or any other Act or by the Australian Military Court Rules. 121 Staff of the Australian Military Court The staff necessary to assist the Australian Military Court 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 4—Military jury 122 Constitution of a military jury (1) There are to be: (a) 12 members on a military jury for a trial of a class 1 offence; and (b) 6 members on a military jury for a trial of a class 2 offence or class 3 offence. (2) At least one member of the jury must hold a rank that is not lower than the naval rank of commander or the rank of lieutenant‑colonel or wing commander. (3) The requirements of subsection (2) apply only if, and to the extent that, the exigencies of service permit. 123 Eligibility to be a member of a military jury Eligibility where accused is an officer or a defence civilian (1) Where the accused person is an officer or a defence civilian, a person is eligible to be a member, or a reserve member, of a military jury for the trial of the accused person if: (a) the person is an officer; and (b) the person has been an officer for a continuous period of not less than 3 years or for periods that total no less than 3 years; and (c) if the accused person is an officer—the person holds a rank that is not lower than the rank held by the accused person. Eligibility where accused is not an officer or a defence civilian (2) Where the accused person is not an officer or a defence civilian, a person is eligible to be a member, or a reserve member, of a military jury for the trial of the accused person if: (a) the person: (i) is an officer; or (ii) holds a rank not lower than the naval rank of warrant officer, the army rank of warrant officer class 1, or the air force rank of warrant officer; and (b) the person has been an officer, or held a rank not lower than warrant officer or warrant officer class 1, for a continuous period of not less than 3 years or for periods that total no less than 3 years. (3) The requirements of this section apply only if, and to the extent that, the exigencies of service permit. 124 Determination of questions by a military jury (1) In a trial of a charge of a service offence that is to be tried by Military Judge and military jury, the military jury is responsible for deciding the questions whether the accused person: (a) is guilty or not guilty of the offence; and (b) 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. (2) A decision of a military jury on the questions in subsection (1) is to be made by: (a) unanimous agreement of the jury members; or (b) if the conditions in subsection (3) are met—five‑sixths majority agreement of the jury members. (3) The conditions are: (a) the jury has deliberated for at least 8 hours; and (b) the jury does not have unanimous agreement after that time but does have five‑sixths majority agreement; and (c) the Australian Military Court is satisfied that: (i) the period of time for deliberation is reasonable, having regard to the nature and complexity of the case; and (ii) after examination on oath or affirmation of one or more of the jurors, it is unlikely that the jurors would reach unanimous agreement after further deliberation. (4) A military jury must sit without any other person present when deciding the questions in subsection (1). 12 Division 2 of Part VIII (heading) Repeal the heading, substitute: Division 2—Trial by the Australian Military Court 13 Sections 132 to 135 Repeal the sections, substitute: 132A Trial of class 1, class 2 and class 3 offences (1) A class 1 offence is to be tried by a Military Judge and military jury. (2) A class 2 offence is to be tried by a Military Judge and military jury, unless the accused person elects to be tried by a Military Judge alone. (3) A class 3 offence is to be tried by a Military Judge alone, unless the accused person elects to be tried by a Military Judge and military jury. 132B Trial by Military Judge and military jury (1) Subject to section 132E, the trial of a charge of a service offence that is to be tried by a Military Judge and military jury is to be in accordance with the following subsections. (2) Before evidence on the charge is heard, the Military Judge must ask the accused person whether he or she pleads guilty or not guilty to the charge. (3) If the accused person pleads guilty and the Military Judge is satisfied that the person understands the effect of that plea, the Military Judge must convict the person. (4) If: (a) the accused person pleads not guilty, refuses to plead or does not plead intelligibly; or (b) the Military Judge is not satisfied that the accused person, in pleading guilty, understands the effect of that plea; the Military Judge must record a plea of not guilty and the Military Judge and the military jury must proceed to hear the evidence on the charge. (5) If the Military Judge, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is insufficient to support the charge, the Military Judge must dismiss the charge. (6) If the Military Judge, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is sufficient to support the charge, the Military Judge and military jury must proceed with the trial. (7) If the military jury finds the accused person not guilty, the Military Judge must acquit the person. (8) If the military jury finds the accused person guilty, the Military Judge must convict the person. 132C Powers of the Military Judge in trial by Military Judge and military jury (1) In the trial of a charge of a service offence that is to be tried by a Military Judge and military jury, the Military Judge must 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) If, 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 for any purpose in connection with: (a) the giving of a ruling; or (b) the exercise of a discretion; the Military Judge must, for any purpose in connection with the giving of such a ruling, or the exercise of such a discretion, sit without the members of the military jury. (3) A ruling given by the Military Judge in accordance with subsection (1) and a decision made by the Military Judge under subsection 141(5) or (6) is binding on the military jury. (4) The powers conferred on the Military Judge by this section are in addition to any other powers conferred on the Military Judge by any other provision of this Act, the regulations or the Australian Military Court Rules. 132D Trial by Military Judge alone (1) Subject to section 132E, the trial of a charge of a service offence that is to be tried by a Military Judge alone is to be in accordance with the following subsections. (2) Before evidence on the charge is heard, the Military Judge must ask the accused person whether he or she pleads guilty or not guilty to the charge. (3) If the accused person pleads guilty and the Military Judge is satisfied that the person understands the effect of that plea, the Military Judge must convict the person. (4) If: (a) the accused person pleads not guilty, refuses to plead or does not plead intelligibly; or (b) the Military Judge is not satisfied that the accused person, in pleading guilty, understands the effect of that plea; the Military Judge must record a plea of not guilty and proceed to hear the evidence on the charge. (5) If the Military Judge, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is insufficient to support the charge, the Military Judge must dismiss the charge. (6) If the Military Judge, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is sufficient to support the charge, the Military Judge must proceed with the trial. (7) If the Military Judge finds the accused person not guilty, the Military Judge must acquit the person. (8) If the Military Judge finds the accused person guilty, the Military Judge must convict the person. 132E Additional matters about trials by Military Judge alone or with a military jury (1) If, under subsection 132B(2) or 132D(2), 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 Military Judge must: (a) if the Director of Military Prosecutions notifies the Judge that he or she does not object to the acceptance of the plea—accept the plea and proceed in accordance with section 132B or 132D; or (b) in any other case—record a plea of not guilty and proceed in accordance with section 132B or 132D. (2) If an accused person who has pleaded not guilty withdraws his or her plea and pleads guilty, the Military Judge must, if the Judge is satisfied that the person understands the effect of that plea, substitute a plea of guilty for the plea of not guilty and proceed in accordance with section 132B or 132D. (3) A Military Judge is not required to give a ruling of the kind referred to in subsection 132B(5) or 132D(5) unless: (a) the accused person has submitted that the Judge should give the ruling; or (b) the interests of justice require that the Judge should give the ruling. (4) A Military Judge is not required to give a ruling of the kind referred to in subsection 132B(6) or 132D(6). 132F Australian Military Court to take action against convicted persons (1) If an accused person is convicted under section 132B or 132D, the Australian Military Court must take action under Part IV in relation to the convicted person. (2) Before taking action, the Court must hear evidence relevant to determining what action should be taken. 13A Section 148 Before "A service", insert "(1)". 13B At the end of section 148 Add: (2) The Australian Military Court may order that the whole or a specified part of a record under subsection (1) that relates to proceedings before the Court is not to be published if the Court 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. 14 After section 148 Insert: Subdivision B—Use of video and audio links in the Australian Military Court 148A Testimony by video link or audio link (1) The Australian Military Court may, for the purposes of proceedings before it, 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 Court 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 is to give the testimony such weight as the Court thinks fit in the circumstances. (4) The power conferred on the Court by subsection (1) may be exercised: (a) on the application of the accused person or the Director of Military Prosecutions; or (b) on the Court's own initiative. (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 Australian Military Court may, for the purposes of proceedings before it, direct or allow a person: (a) to appear before the Court; or (b) to make a submission to the Court; by way of video link or audio link. (2) The power conferred on the Court by subsection (1) may be exercised: (a) on the application of the accused person or the Director of Military Prosecutions; or (b) on the Court's own initiative. (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 Australian Military Court must not exercise the power conferred by subsection 148A(1) or 148B(1) in relation to a video link unless the Court is satisfied that the following conditions are met in relation to the video link: (a) the courtroom or other place where the Court 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 is sitting; (c) such other conditions (if any) as are prescribed by the Australian Military Court Rules in relation to the video link; (d) such other conditions (if any) as are imposed by the Court. (2) The conditions that may be prescribed by the Australian Military Court 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 Court must not exercise the power conferred by subsection 148A(1) or 148B(1) in relation to an audio link unless the Court is satisfied that the following conditions are met in relation to the audio link: (a) the courtroom or other place where the Court 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 is sitting; (c) such other conditions (if any) as are prescribed by the Australian Military Court Rules in relation to the audio link; (d) such other conditions (if any) as are imposed by the Court. (4) The conditions that may be prescribed by the Australian Military Court 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 Australian Military Court 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 Australian Military Court 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 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 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 Australian Military Court is sitting; or (b) if the Australian Military Court 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. 148F New Zealand proceedings This Subdivision does not affect the operation of the Evidence and Procedure (New Zealand) Act 1994. 15 Before section 149 Insert: Subdivision C—Rules of procedure for service tribunals 16 Section 149 Repeal the section, substitute: 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 of witnesses; 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. 149A The Australian Military Court Rules The Chief Military Judge may, by legislative instrument, make rules, to be known as the Australian Military Court Rules, providing for: (a) the practice and procedure to be followed by the Court and, in particular, providing for: (i) pre‑trial hearings and directions; and (ii) the attendance of witnesses; and (iii) the manner and timing of elections in relation to trial by military jury; 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; and (viii) the service of any process of the Court; and (ix) charge sheets in proceedings before the Court; and (x) the manner and form of charges brought before the Court; and (xi) the recording of proceedings of the Court; and (xii) the duties of the Registrar in respect of the practice and procedure of the Court; and (xiii) the maintenance of the customs and traditions of the Defence Force in proceedings before the Court; and (b) matters concerning a military jury, including the summoning, attendance, empanelling of, the right of challenge, polling and the discharge of the jury; and (c) any matter required or permitted by this Act to be prescribed by the Rules. 17 Division 2 of Part XI Repeal the Division, substitute: Division 2—Chief Military Judge 188AA Chief Military Judge There is to be a Chief Military Judge of the Australian Military Court. 188AB Role of the Chief Military Judge The Chief Military Judge is responsible for: (a) ensuring the orderly and expeditious discharge of the business of the Australian Military Court; and (b) managing the administrative affairs of the Australian Military Court; and (c) matters conferred on the Chief Military Judge by or under this Act. 188AC Appointment of Chief Military Judge (1) The Chief Military Judge is to be appointed by the Governor‑General by written instrument. (2) The Chief Military Judge holds office for 10 years. Note: If, before the expiration of the term of appointment, the Chief Military Judge retires from the Australian Defence Force, he or she ceases to be the Chief Military Judge on retirement: see paragraph 188AL(2)(b). (3) A person must not be appointed as the Chief Military Judge if the person has been a Chief Military Judge. Note: However, the person may be appointed as an acting Military Judge under section 188BB. (4) The Chief Military Judge holds office on a full‑time basis. 188AD Qualifications for Chief Military Judge A person must not be appointed as the Chief Military Judge 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; and (d) the person meets the person's individual service deployment requirements. 188AE Selection of Chief Military Judge (1) The Minister may, by notice in writing given to the Chief of the Defence Force, request the Chief of the Defence Force to establish an independent selection committee to give to the Minister, within the period specified in the notice: (a) the name of a person, or the names of persons, the committee considers suitable for appointment as the Chief Military Judge; and (b) all the applications made for the office; and (c) any other thing specified by the Minister in the notice. (2) If the Chief of the Defence Force receives such a notice, the Chief of the Defence Force must establish the committee. (3) The committee must invite all persons who satisfy, or who are capable of satisfying, the qualification requirements in section 188AD to apply for appointment as the Chief Military Judge within the period specified in the notice under subsection (1). (4) The appointment of a person as the Chief Military Judge is not invalid because: (a) of a defect or irregularity in the process for selecting the person for appointment; or (b) the committee did not comply with subsection (3). 188AF Oath or affirmation (1) The Chief Military Judge 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) in the case of the first Chief Military Judge—the Judge Advocate General; or (b) in any other case—a Military Judge. 188AG Remuneration (1) Subject to this section, the Chief Military Judge 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 Military Judge is to be paid the allowances that are prescribed. (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973. 188AH Leave of absence (1) The Chief Military Judge has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Governor‑General may grant the Chief Military Judge leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Governor‑General determines. 188AI No outside employment The Chief Military Judge must not engage in employment outside the duties of his or her office. 188AJ No promotion other than automatic mid‑term promotion (1) Subject to subsection (2), the Chief Military Judge is not eligible for a promotion in rank during the period he or she is the Chief Military Judge. (2) The Chief Military Judge is, by force of this subsection, promoted to the next rank on the 5 year anniversary of his or her appointment as Chief Military Judge. (3) However, subsection (2) does not apply if the Chief Military Judge already holds the naval rank of Rear Admiral or the rank of Major‑General or Air Vice‑Marshal. 188AK Resignation (1) The Chief Military Judge may resign his or her appointment by giving the Governor‑General a written resignation. (2) The resignation takes effect 3 months, or such shorter period agreed to by the Governor‑General, after it is given. 188AL Termination of appointment (1) The Governor‑General may terminate the appointment of the Chief Military Judge: (a) for misbehaviour; or (b) for physical or mental incapacity; or (c) if the Chief Military Judge no longer meets his or her individual service deployment requirements. (2) The Chief Military Judge ceases to hold office if he or she: (a) ceases to be enrolled as a legal practitioner; or (b) is neither: (i) a member of the Permanent Navy, the Regular Army or the Permanent Air Force; nor (ii) a member of the Reserves who is rendering continuous full‑time service; or (c) 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 (d) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months. 188AN Acting Chief Military Judge (1) The Governor‑General may appoint a full‑time Military Judge to act as the Chief Military Judge: (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 Chief Military Judge is absent from duty, or is, for any other reason, unable to perform the functions of his or her office. (2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased. Division 2A—Military Judges 188AO Military Judges There are to be Military Judges of the Australian Military Court. 188AP Appointment of Military Judges (1) A Military Judge is to be appointed by the Governor‑General by written instrument. (2) A Military Judge must be appointed either as a full‑time Military Judge or as a part‑time Military Judge. (3) There are to be 2 full‑time Military Judges and no more than 8 part‑time Military Judges. (To avoid doubt, this subsection does not require there to be 8 part‑time Military Judges at any one time.) Note: This subsection does not prevent the appointment of additional acting Military Judges: see section 188BB. (4) A Military Judge holds office for 10 years. Note: If, before the expiration of the term of appointment, a Military Judge retires from the Australian Defence Force, he or she ceases to be a Military Judge on retirement: see paragraphs 188AZ(2)(b) and (c). (4A) A person must not be appointed as a Military Judge if the person has been a Chief Military Judge or a Military Judge. Note: However, the person may be appointed as the Chief Military Judge under section 188AC or as an acting Military Judge under section 188BB. (5) A full‑time Military Judge holds office on a full‑time basis and a part‑time Military Judge holds office on a part‑time basis. 188AQ Appointment of part‑time Military Judge not to affect tenure etc. If a person: (a) holds the judicial office of justice, judge or magistrate of a federal court; and (b) is appointed, or serves, as a part‑time Military Judge; the appointment or service does not affect his or her: (c) tenure of that judicial office; or (d) 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 a part‑time Military Judge is taken to be service as the holder of that judicial office. 188AR Qualifications for Military Judges Full‑time Military Judges (1) A person must not be appointed as a full‑time Military Judge 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: (i) the Permanent Navy, the Regular Army or the Permanent Air Force; or (ii) is a member of the Reserves and 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; and (d) the person meets the person's individual service deployment requirements. Part‑time Military Judges (2) A person must not be appointed as a part‑time Military Judge 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 Reserves and is not 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; and (d) the person meets the person's individual service deployment requirements. 188AS Selection of Military Judges (1) The Minister may, by notice in writing given to the Chief of the Defence Force, request the Chief of the Defence Force to establish an independent selection committee to give to the Minister, within the period specified in the notice: (a) the name of a person, or the names of persons, the committee considers suitable for appointment as a Military Judge; and (b) all the applications made for the office; and (c) any other thing specified by the Minister in the notice. (2) If the Chief of the Defence Force receives such a notice, the Chief of the Defence Force must establish the committee. (3) The committee must invite all persons who satisfy, or who are capable of satisfying, the qualification requirements in section 188AR to apply for nomination for appointment as a Military Judge within the period specified in the notice under subsection (1). (4) The appointment of a person as a Military Judge is not invalid because: (a) of a defect or irregularity in the process for selecting the person for appointment; or (b) the committee did not comply with subsection (3). 188AT Oath or affirmation (1) A Military Judge 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 the Chief Military Judge or a Military Judge. 188AU Remuneration (1) Subject to this section, a Military Judge 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) A Military Judge is to be paid the allowances that are prescribed. (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973. Special rules for part‑time Military Judges (4) If a person: (a) is a justice, judge or magistrate of a federal court, or of a State or Territory court; and (b) is appointed as a part‑time Military Judge; and (c) receives salary or annual allowance as such a justice, judge or magistrate for the period of the appointment as a part‑time Military Judge; then he or she is not entitled to remuneration under this Act for that period. (5) If a person is a justice, judge or magistrate of a State or Territory court, the Minister may, for the purpose of appointing the person as a part‑time Military Judge, enter into such arrangement with the appropriate State or Territory Minister as is necessary to secure the person's services. (6) An arrangement under subsection (5) with a State or Territory Minister may provide for the Commonwealth to reimburse the State or Territory with respect to the services of the person to whom the arrangement relates. 188AV Leave of absence (1) A Military Judge has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Governor‑General may grant a Military Judge leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Governor‑General determines. 188AW Outside employment Full‑time Military Judges (1) A full‑time Military Judge must not engage in employment outside the duties of his or her office. Part‑time Military Judges (2) A part‑time Military Judge must not engage in employment outside the duties of his or her office as Military Judge if to do so would conflict with his or her duties as Military Judge. 188AX No promotion other than automatic mid‑term promotion (1) Subject to subsection (2), a Military Judge is not eligible for a promotion in rank during the period he or she is a Military Judge. (2) A Military Judge is, by force of this subsection, promoted to the next rank on the 5 year anniversary of his or her appointment as a Military Judge. (3) However, subsection (2) does not apply if the Military Judge already holds the naval rank of Commodore or the rank of Brigadier or Air Commodore. 188AY Resignation (1) A Military Judge may resign his or her appointment by giving the Governor‑General a written resignation. (2) The resignation takes effect 3 months, or such shorter period agreed to by the Governor‑General, after it is given. 188AZ Termination of appointment (1) The Governor‑General may terminate the appointment of a Military Judge: (a) for misbehaviour; or (b) for physical or mental incapacity; or (c) if the Military Judge no longer meets his or her individual service deployment requirements. (2) A Military Judge ceases to hold office if: (a) he or she ceases to be enrolled as a legal practitioner; or (b) if he or she is a full‑time Military Judge—he or she is neither: (i) a member of the Permanent Navy, the Regular Army or the Permanent Air Force; nor (ii) a member of the Reserves who is rendering continuous full‑time service; or (c) if he or she is a part‑time Military Judge—he or she is not a member of the Reserves who is not rendering continuous full‑time service; or (d) he or she 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 (e) he or she is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months. 188BB Acting Military Judges Recommendation to appoint an acting Military Judge (1) If, after receiving advice from the Chief Military Judge, the Minister considers that a charge that has been, or will be, referred to the Australian Military Court requires the experience or expertise of a person who: (a) has been a Chief Military Judge or Military Judge; or (b) is, or has been, a justice, judge or magistrate of a federal court, or of a State or Territory court; the Minister may make a recommendation to the Governor‑General that the person be appointed to act as a Military Judge to try the charge and, in the case of a conviction, take action under Part IV. Appointment (2) If the Minister makes such a recommendation, the Governor‑General may, by written instrument, appoint the person as an acting Military Judge. Qualifications (3) However, the Governor‑General must not appoint the person 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: (i) the Permanent Navy, the Regular Army or the Permanent Air Force; or (ii) the Reserves; and (c) the person holds a rank not lower than the naval rank of commander or the rank of lieutenant colonel or wing commander; and (d) the person meets the person's individual service deployment requirements. Term of appointment (4) An acting Military Judge holds office for the period specified in the instrument of appointment. The instrument must provide that the period ends on: (a) if the proceedings for the charge are terminated without the accused person being acquitted or convicted—the day of the termination; or . (b) if the accused person is acquitted—the day of the acquittal; or (c) if the accused person is convicted—the day that action is taken under Part IV. Appointment to be part‑time (5) An acting Military Judge holds office on a part‑time basis. Resignation (6) An acting Military Judge may resign his or her appointment by giving the Governor‑General a written resignation. The resignation takes effect 2 weeks after it is given. Terms and conditions etc. (7) The following provisions apply to an acting Military Judge as if a reference to "Military Judge" in those provisions included a reference to "acting Military Judge": (a) section 188AQ (appointment not to affect tenure etc.); (b) section 188AT (oath or affirmation); (c) section 188AU (remuneration); (d) section 188AV (leave of absence); (e) subsection 188AW(2) (outside employment); (f) subsection 188AX(1) (no promotion); (g) section 188AZ, other than paragraph 188AZ(2)(b) (termination of appointment). 18 After section 196B Insert: 196C Annual report relating to the operations of the Australian Military Court (1) The Chief Military Judge must, as soon as practicable after each 31 December, prepare and give to the Minister, for presentation to the Parliament, a report relating to: (a) the operations of the Australian Military Court; and (b) the operations of the Australian Military Court Rules; during the year ending on that 31 December. (2) The report must set out such statistical information as the Chief Military Judge considers appropriate. (3) The first report is to relate to the period beginning on the day on which this section commences and ending on the next 31 December. 19 At the end of the Act Add: Schedule 7—Class 1, class 2 and class 3 offences Note: See subsection 3(1) for definitions of class 1 offence, class 2 offence and class 3 offence. 1 Classes of offences The following table sets out whether a service offence is a class 1 offence, class 2 offence or class 3 offence. Class 1, class 2 and class 3 offences Item An offence against this provision: is the following class of offence: 1 subsection 15(1) class 1 2 subsection 15A(1) class 1 3 subsection 15B(1) class 1 4 subsection 15C(1) class 1 5 subsection 15D(1) class 1 6 subsection 15E(1) class 1 7 subsection 15F(1) class 1 8 subsection 15G(1) class 1 9 subsection 16(1) class 1 10 subsection 16A(1) class 1 11 subsection 16B(1) class 1 12 subsection 17(1) class 3 13 subsection 18(1) class 3 14 subsection 18(2) class 3 15 subsection 19(1) class 3 16 subsection 19(2) class 3 17 subsection 19(3) class 3 18 subsection 19(4) class 3 19 subsection 20(1) class 1 20 subsection 20(2) class 1 21 subsection 21(1) class 3 22 subsection 21(2) class 1 23 subsection 22(1) class 1 24 subsection 22(2) class 1 25 subsection 23(1) class 3 26 subsection 23(2) class 3 27 subsection 24(1) class 3 28 subsection 25(1) class 3 29 subsection 26(1) class 3 30 subsection 26(2) class 3 31 subsection 27(1) class 3 32 subsection 28(1) class 3 33 subsection 29(1) class 3 34 subsection 30(1) class 3 35 subsection 30(2) class 3 36 subsection 31(1) class 3 37 subsection 31(2) class 3 38 subsection 32(1) class 3 39 subsection 32(3) class 3 40 section 33 class 3 41 subsection 34(1) class 3 42 subsection 35(1) class 3 43 subsection 36(1) class 2 44 subsection 36(2) class 3 45 subsection 36(3) class 3 46 section 36A class 3 47 section 36B class 3 48 subsection 37(1) class 3 49 subsection 38(1) class 3 50 subsection 38(2) class 3 51 subsection 39(1) class 3 52 subsection 39(2) class 3 53 subsection 39(3) class 3 54 subsection 40(1) class 3 55 subsection 40(2) class 3 56 subsection 40A(1) class 3 57 subsection 40A(2) class 3 58 subsection 40C(1) class 3 59 subsection 40D(1) class 3 60 subsection 40D(2) class 3 61 subsection 41(1) class 3 62 section 42 class 3 63 subsection 43(1) class 3 64 subsection 43(2) class 3 65 subsection 43(3) class 3 66 subsection 44(1) class 3 67 subsection 45(1) class 3 68 subsection 46(1) class 3 69 subsection 47C(1) class 3 70 subsection 47P(1) class 3 71 subsection 48(1) class 3 72 subsection 48(2) class 3 73 subsection 49(1) class 3 74 subsection 49A(1) class 3 75 subsection 50(1) class 3 76 subsection 50(2) class 3 77 section 51 class 3 78 subsection 52(1) class 3 79 subsection 53(1) class 3 80 subsection 53(2) class 3 81 subsection 53(4) class 3 82 subsection 54(1) class 3 83 subsection 54(2) class 3 84 subsection 54(3) class 3 85 subsection 54(4) class 3 86 subsection 55(1) class 3 87 subsection 56(1) class 3 88 subsection 56(4) class 3 89 subsection 57(1) class 3 90 subsection 57(2) class 3 91 subsection 59(1) class 1 92 subsection 59(3) class 2 93 subsection 59(5) class 2 94 subsection 59(6) class 2 95 subsection 59(7) class 2 96 subsection 61(1), if clause 2 of this Schedule is satisfied class 1 97 subsection 61(1), if clause 3 of this Schedule is satisfied class 2 98 subsection 61(1), if clause 4 of this Schedule is satisfied class 3 99 subsection 61(2), if clause 2 of this Schedule is satisfied class 1 100 subsection 61(2), if clause 3 of this Schedule is satisfied class 2 101 subsection 61(2), if clause 4 of this Schedule is satisfied class 3 101A subsection 61(3), if clause 2 of this Schedule is satisfied class 1 101B subsection 61(3), if clause 3 of this Schedule is satisfied class 2 101C subsection 61(3), if clause 4 of this Schedule is satisfied class 3 102 subsection 62(1) class 1 103 subsection 101QA(1) class 3 104 subsection 101QA(2) class 3 2 Section 61 offences that are class 1 offences This clause is satisfied if: (a) for an offence against subsection 61(1)—section 63 applies to the offence; or (b) for an offence against subsection 61(2) or (3)—section 63 applies to the offence, or would apply if the offence were committed in Australia. 3 Section 61 offences that are class 2 offences This clause is satisfied if clauses 2 and 4 are not satisfied. 4 Section 61 offences that are class 3 offences This clause is satisfied if: (a) section 63 does not apply to the offence; and (b) any of the following apply: (i) the offence has a maximum penalty of not greater than 5 years imprisonment; (ii) the offence is not punishable by imprisonment; (iii) the offence may be heard and determined by a civil court of summary jurisdiction. Defence Force Discipline Appeals Act 1955 20 Subsection 4(1) (definition of appellant) Repeal the definition. 21 Subsection 4(1) Insert: court order means: (a) an order made by the Australian Military Court under subsection 75(1) of the Defence Force Discipline Act 1982; or (b) an order made by the Australian Military Court under section 83 of that Act; or (c) an order made by the Australian Military Court under section 84 of that Act. 22 Subsection 4(1) Insert: Director of Military Prosecutions means the Director of Military Prosecutions established under section 188G of the Defence Force Discipline Act 1982. 23 Subsection 4(1) Insert: offender appellant means a convicted person or a prescribed acquitted person who: (a) is a party to an appeal; or (b) makes an application for leave to appeal; under this Act to the Tribunal. 24 Subsection 4(1) Insert: punishment means a punishment imposed by the Australian Military Court under the Defence Force Discipline Act 1982. 25 At the end of section 20 Add: (3) A convicted person may appeal to the Tribunal against a punishment imposed, or a court order made, in respect of his or her conviction. (4) The Director of Military Prosecutions may appeal to the Tribunal against a punishment imposed, or a court order made, in respect of a conviction. 26 Subsection 21(2) Repeal the subsection, substitute: (2) In subsection (1), appropriate period, in relation to proceedings before the Australian Military Court that have resulted in a conviction, a prescribed acquittal, the imposition of a punishment or the making of a court order, means: (a) if the appeal or application to appeal is against a conviction—the period of 60 days starting on the day of the conviction; or (b) if the appeal or application to appeal is against a prescribed acquittal—the period of 60 days starting on the day of the prescribed acquittal; or (c) if the appeal is against a punishment or a court order—the period of 60 days starting on the day the punishment is imposed or the court order is made. 27 Section 22 Repeal the section, substitute: 22 Frivolous or vexatious appeals by an offender appellant If: (a) an offender appellant lodges an appeal against a conviction, a punishment or a court order, or an application for leave to appeal against a conviction; and (b) the Tribunal dismisses the appeal or application; and (c) it appears to the Tribunal that the appeal or application was frivolous or vexatious; the Tribunal may order that any punishment of imprisonment or detention imposed on the offender appellant in the proceedings in relation to which the appeal or application was brought must be taken to commence on the day on which the Tribunal dismisses the appeal or application. 28 At the end of Division 2 of Part III Add: 27 Varying etc. punishments and orders (1) In an appeal against a punishment or a court order, the Tribunal, in its discretion, may: (a) confirm, quash or vary the punishment or order; and (b) impose a different punishment or order; and (c) in the case of a punishment—make a court order; and (d) in the case of a court order—impose a punishment. (2) Any punishment or court order varied or imposed by the Tribunal under this section has the same effect, and is to be enforced in the same manner, as if it had been imposed by the Australian Military Court under the Defence Force Discipline Act 1982. (3) However, Part IV of the Defence Force Discipline Act 1982 applies to the Tribunal for the purposes of this section in the same way that it applies to the Australian Milit