Commonwealth: Defence Legislation Amendment Act 2008 (Cth)

Defence Legislation Amendment Act 2008 No. 6, 2008 An Act to amend legislation relating to defence, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Election for trial by the Australian Military Court Part 1—Main amendments Defence Force Discipline Act 1982 Part 2—Consequential amendments Defence Force Discipline Act 1982 Schedule 2—Appeals to the Australian Military Court Part 1—Main amendments Defence Force Discipline Act 1982 Part 2—Consequential amendments Defence Force Discipline Act 1982 Defence Force Discipline Appeals Act 1955 Schedule 3—Evidence in summary proceedings Defence Force Discipline Act 1982 Schedule 4—Review of summary proceedings Part 1—Main amendments Defence Force Discipline Act 1982 Part 2—Consequential amendments Defence Force Discipline Act 1982 Schedule 5—Offences and punishments Part 1—Amendments of offences Defence Force Discipline Act 1982 Part 2—Amendments of punishments Defence Force Discipline Act 1982 Schedule 6—Minor disciplinary infringements Defence Force Discipline Act 1982 Schedule 7—Other amendments Part 1—Powers of the Director of Military Prosecutions Defence Force Discipline Act 1982 Defence Force Discipline Appeals Act 1955 Part 2—Powers of the Provost Marshal Australian Defence Force Defence Force Discipline Act 1982 Part 3—Jurisdiction of summary authorities Defence Force Discipline Act 1982 Part 4—Trials by summary authorities Defence Force Discipline Act 1982 Part 4A—Trials by the Australian Military Court Defence Force Discipline Act 1982 Part 5—Amendments relating to the Registrar of the Australian Military Court Defence Force Discipline Act 1982 Part 6—Miscellaneous amendments relating to the Australian Military Court Defence Force Discipline Act 1982 Part 7—Rights and duties of legal officers Defence Act 1903 Part 8—Technical amendments Defence Act 1903 Defence Force Discipline Act 1982 Defence Force Discipline Appeals Act 1955 Schedule 8—Application, saving and transitional provisions Defence Legislation Amendment Act 2008 No. 6, 2008 An Act to amend legislation relating to defence, and for related purposes [Assented to 20 March 2008] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Defence Legislation Amendment Act 2008. 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. 20 March 2008 2. Schedules 1 to 6 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 20 September 2008 3. Schedule 7, Parts 1 and 2 The day on which this Act receives the Royal Assent. 20 March 2008 4. Schedule 7, Part 3 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 20 September 2008 5. Schedule 7, items 24 to 26 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 20 September 2008 6. Schedule 7, items 27 and 28 The day on which this Act receives the Royal Assent. 20 March 2008 7. Schedule 7, items 29 and 30 On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. 20 September 2008 8. Schedule 7, Parts 4A, 5, 6 and 7 The day on which this Act receives the Royal Assent. 20 March 2008 9. Schedule 7, item 38 Immediately after the commencement of item 7 of Schedule 2 to the Defence Legislation Amendment Act 2006. 11 December 2006 10. Schedule 7, item 39 Immediately after the commencement of item 59 of Schedule 1 to the Defence Legislation Amendment Act 2006. 1 October 2007 11. Schedule 7, items 40 to 44 The day on which this Act receives the Royal Assent. 20 March 2008 12. Schedule 7, item 45 Immediately after the commencement of item 230 of Schedule 1 to the Defence Legislation Amendment Act 2006. 1 October 2007 13. Schedule 8 The day on which this Act receives the Royal Assent. 20 March 2008 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—Election for trial by the Australian Military Court Part 1—Main amendments Defence Force Discipline Act 1982 1 Subsection 3(1) Insert: 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). 2 After section 111A Insert: 111B Accused person may elect to be tried by the Australian Military Court—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 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) 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 the Australian Military Court—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 the Australian Military Court, 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 the Australian Military Court (3) If the accused person elects to have the charge tried by the Australian Military Court, 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 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. Withdrawal of election (6) An accused person who has elected to have a charge tried by the Australian Military Court may withdraw the election at any time before a date is fixed for hearing by the Court. (7) If an accused person withdraws an election to have a charge tried by the Australian Military Court: (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. 3 Section 131 Repeal the section, substitute: 131 Accused person may elect to be tried by the Australian Military Court—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 the Australian Military Court. 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. (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 the Australian Military Court—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 the Australian Military Court, 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 the Australian Military Court (3) If the accused person elects to have the charge tried by the Australian Military Court, 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 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. Withdrawal of election (6) An accused person who has elected to have a charge tried by the Australian Military Court may withdraw the election at any time before a date is fixed for hearing by the Court. (7) If an accused person withdraws an election to have a charge tried by the Australian Military Court: (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. 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". 5 Before Schedule 1 Insert: Schedule 1A—Certain disciplinary offences Note: See subsection 3(1). Item Offence against: Subject matter 1 Subsection 23(1) Absence from duty 2 Subsection 23(2) Absence from duty 3 Subsection 24(1) Absence without leave 4 Subsection 26(1) Insubordinate conduct 5 Subsection 26(2) Insubordinate conduct 6 Subsection 27(1) Disobeying a lawful command 7 Subsection 29(1) Failing to comply with a general order 8 Subsection 32(1) Person on guard or on watch 9 Subsection 35(1) Negligence in performance of a duty 10 Subsection 37(1) Intoxicated while on duty etc. 11 Subsection 54A(1) Custodial offences 12 Subsection 54A(2) Custodial offences 13 Subsection 60(1) Prejudicial conduct 14 Subsection 60(1A) Prejudicial conduct 6 Schedule 3 Repeal the Schedule, substitute: Schedule 3—Punishments that may be imposed by a summary authority Note: See section 67. 1 Punishments that may be imposed by a superior summary authority Punishments that may be imposed on certain officers (1) A superior summary authority may impose a punishment set out in column 2 of an item of Table A of this Schedule on an officer referred to in column 1 of that item who has been convicted of an offence. Table A—Punishments that may be imposed by a superior summary authority on certain officers Item Column 1 Column 2 Convicted person Punishment 1 Officer: Fine not exceeding the amount of the convicted person's pay for 7 days (a) of or below the rank of rear admiral but above the rank of lieutenant commander; or Severe reprimand (b) of or below the rank of major‑general but above the rank of major; or Reprimand (c) of or below the rank of air vice‑marshal but above the rank of squadron leader Punishments that may be imposed on other persons (2) A superior summary authority may impose an elective punishment, or a punishment set out in column 3 of an item of Table B of this Schedule, on a person referred to in column 1 of that item who has been convicted of an offence (other than a Schedule 1A offence). (3) A superior summary authority may impose a punishment set out in column 3 of an item of Table B of this Schedule on a person referred to in column 1 of that item who has been convicted of a Schedule 1A offence. (4) A superior summary authority may impose an elective punishment on a person referred to in column 1 of an item of Table B of this Schedule who has been convicted of a Schedule 1A offence (other than a custodial offence) only in accordance with subsection 131AA(8). Table B—Punishments that may be imposed by a superior summary authority on other persons Item Column 1 Column 2 Column 3 Convicted person Elective punishment Other punishment 1 Officer of or below the rank of lieutenant commander, major or squadron leader Fine exceeding the amount of the convicted person's pay for 7 days but not exceeding the amount of the convicted person's pay for 14 days Fine not exceeding the amount of the convicted person's pay for 7 days Warrant officer Severe reprimand Reprimand 2 Person who is not a member of the Defence Force Fine exceeding $100 but not exceeding $250 Fine not exceeding $100 2 Punishments that may be imposed by a commanding officer (1) A commanding officer may impose an elective punishment, or a punishment set out in column 3 of an item of Table C of this Schedule, on a person referred to in column 1 of that item who has been convicted of an offence (other than a Schedule 1A offence). (2) A commanding officer may impose a punishment set out in column 3 of an item of Table C of this Schedule on a person referred to in column 1 of that item who has been convicted of a Schedule 1A offence. (3) A commanding officer may impose an elective punishment on a person referred to in column 1 of an item of Table C of this Schedule who has been convicted of a Schedule 1A offence (other than a custodial offence) only in accordance with subsection 131AA(8). Table C—Punishments that may be imposed by a commanding officer on convicted persons Item Column 1 Column 2 Column 3 Convicted person Elective punishment Other punishment 1 Officer of or below the naval rank of lieutenant, the rank of captain in the Army or the rank of flight lieutenant Fine exceeding the amount of the convicted person's pay for 7 days but not exceeding the amount of the convicted person's pay for 14 days Fine not exceeding the amount of the convicted person's pay for 7 days Warrant officer Severe reprimand Reprimand 2 Non‑commissioned officer Reduction in rank by one rank or, in the case of a corporal of the Army, reduction in rank by one or 2 ranks Fine not exceeding the amount of the convicted person's pay for 7 days Forfeiture of seniority Severe reprimand Fine exceeding the amount of the convicted person's pay for 7 days but not exceeding the amount of the convicted person's pay for 14 days Reprimand 3 Member below non‑commissioned rank who, at the time he or she committed the service offence of which he or she has been convicted, was on active service Detention for a period exceeding 14 days but not exceeding 42 days Detention for a period not exceeding 14 days Fine exceeding the amount of the convicted person's pay for 14 days but not exceeding the amount of the convicted person's pay for 28 days Fine not exceeding the amount of the convicted person's pay for 14 days Severe reprimand Restriction of privileges for a period not exceeding 14 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand 4 Member below non‑commissioned rank who, at the time he or she committed the service offence of which he or she has been convicted, was not on active service Detention for a period exceeding 7 days but not exceeding 28 days Detention for a period not exceeding 7 days Fine exceeding the amount of the convicted person's pay for 7 days but not exceeding the amount of the convicted person's pay for 28 days Fine not exceeding the amount of the convicted person's pay for 7 days Severe reprimand Restriction of privileges for a period not exceeding 14 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand 5 Person who is not a member of the Defence Force Fine exceeding $100 but not exceeding $250 Fine not exceeding $100 3 Punishments that may be imposed by a subordinate summary authority A subordinate summary authority may impose a punishment set out in column 2 of an item of Table D of this Schedule on a person referred to in column 1 of that item who has been convicted of an offence. Table D—Punishments that may be imposed by a subordinate summary authority on convicted persons Item Column 1 Column 2 Convicted person Punishment 1 Non‑commissioned officer of, or below, the rank of leading seaman or corporal Fine not exceeding the amount of the convicted person's pay for 3 days Severe reprimand Reprimand 2 Member below non‑commissioned rank Fine not exceeding the amount of the convicted person's pay for 3 days Severe reprimand Restriction of privileges for a period not exceeding 7 days Stoppage of leave for a period not exceeding 7 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand Part 2—Consequential amendments Defence Force Discipline Act 1982 7 Subsection 3(1) (definition of elective punishment) Omit "column 2 of Table A or B", substitute "column 2 of an item of Table B or C". 8 Subsection 76(1) Omit "section 131", substitute "subsection (3)". 9 At the end of section 76 Add: (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. 10 Subsection 103(1) Omit "or 131(4)". 11 Subsection 103(4) Omit "Where under section 131", substitute "If under subsection 111C(1) or 131AA(1)". 12 At the end of paragraph 103(4)(c) Add "or". 13 Subsection 103(5) Repeal the subsection. 14 Subsections 118(3) and (4) Repeal the subsections. Schedule 2—Appeals to the Australian Military Court Part 1—Main amendments Defence Force Discipline Act 1982 1 Subsection 67(1) Omit "The", substitute "Subject to sections 166, 167 and 167A, the". 2 Subsections 115(3) and (4) Repeal the subsections, substitute: (3) The Australian Military Court has jurisdiction to hear and determine appeals from decisions of summary authorities (including a decision relating to a charge of a custodial offence). Note: Part IX deals with appeals to the Australian Military Court. 3 Subsection 116(1) After "Australian Military Court", insert "(including the Court's jurisdiction to hear and determine appeals from decisions of summary authorities)". 4 Subsection 118(2) Repeal the subsection, substitute: Nomination of Military Judge to try charge or hear appeal (2) The Chief Military Judge must nominate the Military Judge who is: (a) to try a charge referred to the Australian Military Court; or (b) to hear and determine an appeal to the Australian Military Court. 5 Before section 132A Insert: 132 Application of Division This Division does not apply to an appeal to the Australian Military Court from a decision of a summary authority. Note: Part IX deals with appeals to the Australian Military Court. 6 Subdivision A of Division 3 of Part VIII (heading) Repeal the heading, substitute: Subdivision A—General provisions relating to trials 7 Before section 138 Insert: 137A Application of Subdivision This Subdivision does not apply to an appeal to the Australian Military Court from a decision of a summary authority. Note: Part IX deals with appeals to the Australian Military Court. 8 After subparagraph 149A(a)(x) Insert: (xa) matters relating to appeals to the Court; and 9 Part IX Repeal the Part, substitute: Part IX—Appeals to the Australian Military Court Division 1—Definitions 160 Definitions In this Part: appeal means an appeal to the Australian Military Court under this Part. appellant means a person who has lodged an appeal. Part IV order means a restitution order, a reparation order or an order made under subsection 75(1). Division 2—Bringing of appeals 161 Appeals to the Australian Military Court (1) A person who has been convicted of a service offence by a summary authority may appeal to the Australian Military Court against: (a) his or her conviction; or (b) a punishment imposed, or a Part IV order made, by the summary authority in respect of his or her conviction. (2) An appeal to the Australian Military Court: (a) must specify the grounds on which the appeal is brought; and (b) must be lodged with the Registrar or with such other person as is prescribed: (i) within the appropriate period; or (ii) within such longer period as the Court, either before or after the expiration of the appropriate period, allows. (3) For the purposes of subparagraph (2)(b)(i) and subject to subsections (4) and (5), the appropriate period is: (a) if the appeal is against a conviction—the period of 14 days beginning on the day of the conviction; or (b) if the appeal is against a punishment or a Part IV order—the period of 14 days beginning on the day on which the punishment or the Part IV order takes effect. Note: Some punishments and orders under Part IV do not take effect unless they are approved by a reviewing authority: see subsections 172(2) and (3). (4) If a summary authority has reopened proceedings in response to a request by a reviewing authority under section 153: (a) the convicted person may not appeal to the Australian Military Court in relation to the proceedings until after the summary authority has completed dealing with the reopened proceedings; and (b) for the purposes of subparagraph (2)(b)(i), the appropriate period is: (i) if the appeal is against the person's conviction—the period of 14 days beginning on the day on which, under Part VIIIA, the person is given notice of the results of the review of the proceedings (including the reopening of the proceedings); or (ii) if the appeal is against a punishment imposed on the person or a Part IV order made in relation to the person—the period of 14 days beginning on the day on which the punishment or the Part IV order takes effect. (5) If a reviewing authority gives a convicted person a notice under subsection 155(2) recommending that the person consider appealing to the Australian Military Court against the conviction, or any punishment imposed or order made under Part IV in respect of the conviction, then, for the purposes of subparagraph (2)(b)(i), the appropriate period is the period of 14 days beginning on the date on which the notice is given. Division 3—Determination of appeals 162 Quashing of conviction—conviction unreasonable etc. If, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court: (a) that, having regard to the evidence, the conviction is unreasonable or cannot be supported; or (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; or (c) that there was a material irregularity in the course of the proceedings before the summary authority 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 Court must allow the appeal and quash the conviction. 163 Quashing of conviction—new evidence available (1) If, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court that there is evidence that: (a) was not reasonably available during the proceedings before the summary authority; and (b) is likely to be credible; and (c) would have been admissible in the proceedings before the summary authority; the Court must receive and consider that evidence. (2) If: (a) the Australian Military Court receives and considers evidence under subsection (1); and (b) it appears to the Court that the conviction cannot be supported having regard to that evidence; the Court must allow the appeal and quash the conviction. 164 Quashing of conviction—person suffering from mental impairment (1) Subject to subsection (3), if, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court that the summary authority should have found that the appellant, by reason of mental impairment, was not able to understand the proceedings against him or her and, accordingly, was unfit to stand trial, the Court must: (a) allow the appeal; and (b) quash the conviction; and (c) direct that the appellant be kept in strict custody until the pleasure of the Governor‑General is known. (2) Subject to subsection (3), if, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court that, at the time of the act or omission to which the conviction relates, the appellant was suffering from such mental impairment as not to be responsible, in accordance with law, for that act or omission, the Court must: (a) allow the appeal and quash the conviction; and (b) substitute for the conviction an acquittal on the ground of mental impairment; and (c) direct that the appellant be kept in strict custody until the pleasure of the Governor‑General is known. (3) The Australian Military Court must not quash a conviction under this section if there are grounds for quashing the conviction under section 162 or 163. 165 Australian Military Court may order new trial (1) If, in an appeal, the Australian Military Court quashes a conviction of a person of a service offence, the Court may, if it considers that in the interests of justice the person should be tried again, order a new trial of the person for the service offence. (2) If the Australian Military Court orders a new trial of a person under subsection (1), the trial must be by the Australian Military Court. Note: Division 2 of Part VIII deals with trials by the Australian Military Court. (3) If the Australian Military Court orders a new trial of a person under subsection (1), the Court must make such further orders for the custody of the person pending the new trial as the Court considers appropriate. 165A Person taken to have been acquitted For the purposes of this Act, if the Australian Military Court 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 is taken to have been acquitted of the offence. 166 Substitution of conviction for alternative offence (1) If, in an appeal, the Australian Military Court quashes a conviction of a person of a service offence (the original offence) but considers: (a) that the summary authority that convicted the person could 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 summary authority did not record a finding; and (b) that the summary authority, because of its 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 Australian Military Court may substitute for the conviction of the original offence a conviction of the other offence. (2) If, under subsection (1), the Australian Military Court substitutes for the conviction of the original offence a conviction of another service offence, the Court may take such action under Part IV, in relation to the convicted person, as the summary authority that convicted the person could have taken under that Part if the summary authority had convicted the person of the other service offence. (3) However, the Australian Military Court must not do any of the following under subsection (2): (a) impose a punishment for the other service offence unless the summary authority had imposed a punishment for the original offence; (b) make a reparation order with respect to the other service offence unless the summary authority had made a reparation order with respect to the original offence; (c) if the summary authority had imposed a punishment (the original punishment) for the original offence—impose a punishment for the other service offence that is more severe than the original punishment; (d) if the summary authority had made a reparation order (the original reparation order) with respect to the original offence—make a reparation order with respect to the other service offence that is for an amount that exceeds the amount of the original reparation order. 167 Powers of Court in an appeal against a punishment (1) In an appeal by a convicted person against a punishment imposed on the person by a summary authority, the Australian Military Court, in its discretion, may confirm, quash or vary the punishment. (2) If the Australian Military Court quashes the punishment: (a) the punishment does not take effect; and (b) the Court may take such action under Part IV (including imposing a punishment or making an order or both) in relation to the convicted person as the summary authority could have taken under that Part in relation to the person. (3) If the Australian Military Court varies the punishment, the punishment takes effect as varied. (4) The Australian Military Court must not vary a punishment imposed on a convicted person by a summary authority in such a way that the varied punishment would not be a punishment that the summary authority could have imposed on the person under Part IV. 167A Powers of Court in an appeal against a Part IV order (1) In an appeal by a convicted person against a Part IV order made in relation to the person by a summary authority, the Australian Military Court, in its discretion, may confirm, revoke or vary the order. (2) If the Australian Military Court revokes the Part IV order: (a) the order does not take effect; and (b) the Court may take such action under Part IV (including imposing a punishment or making an order or both) in relation to the convicted person as the summary authority could have taken under that Part in relation to the person. (3) If the Australian Military Court varies the Part IV order, the order takes effect as varied. (4) The Australian Military Court must not vary a Part IV order made in relation to a convicted person by a summary authority in such a way that the varied order would not be an order that the summary authority could have made in relation to the person under Part IV. 167B Frivolous or vexatious appeals If the Australian Military Court dismisses an appeal on the grounds that the appeal was frivolous or vexatious, the Court may order that any punishment of detention imposed on the appellant in the proceedings in relation to which the appeal was brought must be taken to commence on the day the appeal is dismissed. Division 4—General provisions relating to appeals 168 Representation of parties in an appeal (1) Subject to subsection (2), sections 136 and 137 apply in relation to an appeal as if: (a) references to a trial were references to an appeal; and (b) references to an accused person were references to an appellant. Note: Section 188GB deals with appearances by or on behalf of the Director of Military Prosecutions in proceedings before the Australian Military Court. (2) Subsection 137(1) applies in relation to an appeal as if the reference to an accused person awaiting trial by the Australian Military Court were a reference to an appellant in an appeal before the Australian Military Court. 168A Hearings (1) The Australian Military Court may determine an appeal: (a) by holding a hearing; or (b) by considering, without holding a hearing, the documents or other material provided to the Court in relation to the appeal. However, the Court must hold a hearing if it appears to the Court that the issues for determination cannot be adequately determined in the absence of the parties. (2) For the purpose of determining an appeal, the Australian Military Court may order a party to the appeal or the Director of Military Prosecutions to produce such documents or other information as the Court specifies in the order. (3) If the Australian Military Court decides to hold a hearing for the purpose of determining an appeal, the hearing must, subject to subsection (4), be held in the presence of the appellant. (4) If: (a) the Australian Military Court decides to hold a hearing for the purpose of determining an appeal; and (b) the Court considers that, by reason of the disorderly behaviour of the appellant, it is impossible to continue the hearing in his or her presence; the Court may order that the appellant be removed from the place of hearing and be held in custody elsewhere. 168B Evidence (1) Section 146A applies to an appeal in the same way as it applies to proceedings before a summary authority. (2) For the purposes of subsection (1): (a) references to proceedings before a summary authority are to be read as references to an appeal before the Australian Military Court; and (b) references to a summary authority are to be read as references to the Australian Military Court; and (c) in subsection 146A(1), the words "(including proceedings for the purpose referred to in subsection 111A(1))" are to be omitted. 168C Judicial notice of service matters In determining an appeal, the Australian Military Court must take judicial notice of all matters within the general service knowledge of the Court. 168D Record of proceedings to be kept (1) The Australian Military Court: (a) must keep a record of an appeal determined by the Court; and (b) must include in that record such particulars as are required by the rules of procedure. (2) A record referred to in subsection (1) must not be made publicly available but may be published for service purposes in accordance with the rules of procedure. 168E Use of video and audio links Subdivision B of Division 3 of Part VIII applies to appeal proceedings before the Australian Military Court. 10 Section 188GB Omit "a trial of a charge by", substitute "proceedings before". 11 Subparagraphs 188GB(b)(i) and (ii) Omit "trial is", substitute "proceedings are". 12 At the end of subsection 191(1) Add: ; or (e) the determination or dismissal of an appeal under Part IX. Part 2—Consequential amendments Defence Force Discipline Act 1982 13 Subsection 3(1) (definition of prescribed acquittal) Repeal the definition. 14 Subsections 71(1A), (2) and (3) Omit "whom it has", substitute "who has been". 15 After subsection 103(2) Insert: (2A) If, under section 165, the Australian Military Court 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 appeal relates to the Australian Military Court for a new trial. 16 Subsection 103(3) After "(2)", insert "or (2A)". 17 At the end of subsection 144(1) Add: Note: If a person has been convicted of a service offence by a summary authority, the Australian Military Court may, in an appeal against the conviction, quash the conviction and order a new trial of the person for the offence: see section 165. 18 After section 172 Insert: 172A Suspension of operation of restitution orders and reparation orders made by a summary authority (1) The operation of a restitution order or a reparation order made by a summary authority is suspended: (a) until the expiration of the period in which, under Part IX, an appeal to the Australian Military Court against the order, or 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 such an appeal is lodged—until the appeal is finally determined or abandoned. (2) If, in relation to a restitution order, the summary authority is satisfied that the title to the property in relation to which the order is made is not in dispute, the summary authority may direct that subsection (1) is not to apply to the order. (3) If the operation of a restitution order or a reparation order is suspended under subsection (1), the order does not take effect if the conviction in relation to which the order is made is quashed on appeal. Note: The heading to section 173 is altered by adding at the end "made by the Australian Military Court". 19 Subsection 176(1) Repeal the subsection, substitute: (1) If: (a) a summary authority has imposed a punishment on a convicted person; and (b) the convicted person notifies the summary authority that he or she has appealed to the Australian Military Court under Part IX against the conviction or the punishment; the summary authority must order that the execution of the punishment be stayed, in whole or in part, pending the determination of the appeal. 20 Subsection 194(1) Omit "or 158", substitute "or 164". Defence Force Discipline Appeals Act 1955 21 Section 4 (at the end of the definition of convicted person) Add "(other than under Part IX of the Defence Force Discipline Act 1982)". 22 Section 4 (at the end of the definition of conviction) Add "(other than under Part IX of the Defence Force Discipline Act 1982)". 23 Section 4 (at the end of the definition of court order) Add: ; but does not include an order made in an appeal under Part IX of the Defence Force Discipline Act 1982. 24 Section 4 (definition of prescribed acquittal) After "Court", insert "(other than under Part IX of the Defence Force Discipline Act 1982)". 25 Section 4 (definition of prescribed acquitted person) After "Court", insert "(other than under Part IX of the Defence Force Discipline Act 1982)". 26 Section 4 (at the end of the definition of punishment) Add "(other than under Part IX of that Act)". Schedule 3—Evidence in summary proceedings Defence Force Discipline Act 1982 1 At the end of subsection 111A(1) Add: 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 Subsection 111A(2) Omit "Without limiting the generality of subsection 146(2), regulations made by virtue of that subsection", substitute "The regulations". 3 Subsection 146(1) Omit "proceedings before a service tribunal", substitute "a trial by the Australian Military Court". Note: The heading to section 146 is replaced by the heading "Evidence in trials by the Australian Military Court". 4 Paragraph 146(1)(a) Omit "the tribunal", substitute "the Australian Military Court". 5 Paragraph 146(1)(b) Omit "the proceedings were criminal proceedings", substitute "the trial were a criminal proceeding". 6 Subsection 146(2) Omit "proceedings before a service tribunal", substitute "trials by the Australian Military Court". 7 Subsection 146(2) Omit "such proceedings", substitute "such trials". 8 After section 146 Insert: 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. 9 Section 147 Repeal the section, substitute: 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, the Australian Military Court must take judicial notice of all matters within the general service knowledge of: (a) the Court; and (b) if the proceedings are before a military jury—the jury. (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. 10 Section 149 Omit "Judge Advocate General", substitute "Chief Military Judge". 11 Paragraph 149(a) After "attendance", insert "and compellability". 12 After paragraph 149(a) Insert: (aa) the giving of testimony and other evidence; and Schedule 4—Review of summary proceedings Part 1—Main amendments Defence Force Discipline Act 1982 1 At the end of section 149 Add: ; and (i) the reopening of proceedings of a summary authority on request by a reviewing authority. 2 After Part VIII Insert: Part VIIIA—Review of proceedings of summary authorities Division 1—Interpretation and application 150 Meaning of reviewing authority and competent reviewing authority Appointment of reviewing 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 reviewing authority for the purposes of: (a) reviewing proceedings of summary authorities; and (b) exercising any other powers and functions that are conferred on reviewing authorities by this Act or the regulations. Competent reviewing authorities (2) A reviewing authority is a competent reviewing authority for the purposes of reviewing the proceedings of a summary authority 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 that is the subject of the proceedings. 150A Application of Part This Part applies in relation to proceedings of a summary authority that have resulted in a conviction of a person of a service offence. Division 2—Automatic review by reviewing authority 151 Review of proceedings of subordinate summary authority Powers and duties of commanding officer (1) As soon as practicable after a subordinate summary authority convicts a person of a service offence, the subordinate summary authority must give the record of the proceedings to the commanding officer of the subordinate summary authority. (2) The commanding officer must review the proceedings in accordance with this Part and, for that purpose, the commanding officer is taken to be a reviewing authority. (3) The commanding officer may, but is not required to, obtain legal advice on the proceedings from a legal officer. (4) After completing the review of the proceedings, the commanding officer must give to a legal officer: (a) the record of the proceedings; and (b) a report setting out: (i) the results of the review; and (ii) if the proceedings were reopened by the subordinate summary authority under section 153—the action taken by the subordinate summary authority in dealing with the reopened proceedings; and (iii) the reasons for any delay in conducting the review. (5) The commanding officer must complete the review of the proceedings and give the documents referred to in paragraphs (4)(a) and (b) to a legal officer: (a) within 30 days after the commanding officer receives 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. Powers and duties of legal officer (6) As soon as practicable after receiving the record of the proceedings and the report referred to in subsection (4), the legal officer: (a) must consider the record and report; and (b) may, if the legal officer considers it appropriate, give the record and report to a competent reviewing authority. Further review by competent reviewing authority (7) If the legal officer gives the record of the proceedings and the report to a competent reviewing authority under subsection (6), the reviewing authority: