Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DEFENCE LEGISLATION AMENDMENT BILL 2006
SUPPLEMENTARY EXPLANATORY MEMORANDUM AND
CORRIGENDUM TO THE ORIGINAL EXPLANATORY MEMORANDUM
Amendments moved on behalf of the Government
(Circulated by authority of the Minister Assisting the Minister for Defence, the Hon
Bruce Billson MP)
DEFENCE LEGISLATION AMENDMENT BILL 2006
OUTLINE
The proposed amendments give effect to certain matters that were raised by the
Senate Standing Committee for Foreign Affairs, Defence and Trade in its
consideration of the Defence Legislation Amendment Bill 2006 on 9 October 2006.
The Bill establishes a permanent military court, to be known as the "Australian
Military Court" (AMC) to give effect to certain aspects of the recommendations of the
2005 Senate Report of the `inquiry into the effectiveness of Australia's military
justice system'. These matters include the appointment, tenure, retirement, resignation
and promotion of military judges, the composition of military juries and the offence
regime. These matters have been refined and strengthened from their original form in
the Bill.
Financial Impact Statement
The proposed amendments do not have a financial impact on Commonwealth
expenditure or revenue.
NOTES ON AMENDMENTS
1. As the 2005 Senate Report noted, open and accountable governance is
demanded and expected in respect of all arms of government, including the delivery
of rigorous, fair and impartial outcomes. The military justice system is not exempt
from this expectation. The Bill as a whole, strengthened by the proposed amendments,
will establish a permanent military court, independent of the chain of command, to
replace the current system of courts martial and trial by Defence Force magistrate.
2. In the period 1998 to 2005 there were 405 cases heard by courts martial and
Defence Force magistrates (an average of 50 cases per year). 400 of these cases were
heard by a Service tribunal with the authority to impose a maximum punishment of no
more than six months imprisonment. Five cases (just over 1%) were heard by a
Service tribunal (General Court Martial) with the authority to impose a punishment in
excess of six months imprisonment or detention. These five cases did not include very
serious offences such as murder, manslaughter or treason. These very serious
offences occur even more rarely and are only dealt with under the DFDA in
exceptional circumstances when there is no other Australian jurisdiction available.
Given this, it is appropriate to structure the new AMC to meet the nature of the
majority of cases (about 99%), and provide a standby capacity to deal with very
serious cases (less than 1%), in those rare and exceptional circumstances where they
occur outside Australian civilian jurisdiction. The intent of the Bill has always been to
achieve this best practice by allowing for the selection of military judges who are part
of the Reserve and come from private practice or the civilian courts where they have
developed the experience to deal with very serious offences.
3. Current trends suggest that the proportion of minor to major offences is
unlikely to vary significantly. The proposed introduction of a right of appeal from
summary authorities to the AMC and a redesigned right to elect trial by the AMC will
increase overall workload (perhaps threefold), however, this will only involve
relatively minor matters that otherwise would have been dealt with at the summary
level.
4. The ADF has some 470 Reserve and Permanent Force legal officers. Half of
these officers meet the qualifications by rank to become military judges in the new
AMC. The Reserve includes some 19 civilian judges and magistrates and about 20
Senior Counsel (Queen's Counsel). Unlike civilian lawyers, military lawyers progress
through a rank structure that reflects both their military and legal experience. There
are three permanent positions at the top of this structure (less than 1%) that require a
minimum of one star rank. The Chief Military Judge will be one of these three
positions when the AMC commences. The capacity for ADF legal officers to
progress to the highest ranks available is enhanced by military judges serving fixed
terms. Fixed terms also ensure security of tenure, for the purposes of judicial
independence.
5. In general, it would be expected that a military judge would come from the
more senior and experienced legal officers. However, there are very experienced
lawyers in the Reserves, who for many reasons (such as joining at a later age) may be
at a lower military rank. In ensuring that the pool of legal officers from which
military judges will be selected is as broad as possible, the rank requirement is that the
officers be capable of promotion to the equivalent rank of Lieutenant Colonel. This
allows all officers with a rank equivalent of Major and above to be considered.
6. Noting the very limited number of the most serious offences that occur, the
provision of ten year terms, the broad pool from which a military judge may be
selected (including civilian judicial officers and Senior Counsel in the Reserve) and
the addition of acting judges that may be drawn from currently serving former
military judges and civilian judicial officers in the Reserve for particular cases, the
amendments allow for even more capacity to deal with very serious cases in those
exceptional circumstances where they might occur outside Australian civilian
jurisdiction. This capacity is likely to be drawn primarily from part time or acting
military judges (Reserves).
7. Paragraphs (1) to (3) and (5) reflect the amendments made to Schedule 7
discussed in paragraphs 44 and 45 below (which will remove the anomaly in the
current Bill in respect of references to Class 1, 2 and 3 offences). The proposed
amendments correctly cross reference the definitions of Class 1, 2 and 3 offences in
subsection 3(1) to Schedule 7. This amendment does not alter the substance or intent
of the Bill.
8. Paragraph (4) amends the definition of 'Class 3 offence' to include an offence
that is not punishable by imprisonment. This amendment further clarifies the
requirement that a Class 3 offence is one that has a maximum penalty of a period not
greater than 5 years imprisonment and is not a Class 1 or 2 offence.
9. Paragraph (6) omits the reference to section 188AQ in the definition of
'military judge'. This is required as section 188AQ is being repealed. This section
currently provides for the possible reappointment of a military judge. However, as the
proposed amendments will not allow reappointment this section is being repealed.
10. Paragraph (7) inserts in the definition of 'military judge' a cross reference to
new section 188BB (which outlines the circumstances where an acting military judge
may be appointed (see the discussion in paragraphs 39-43 below)). This provision will
extend the definition of military judge to include an acting military judge under
proposed section 188BB. The provision for acting military judges will make use of
the skills and experience of military judges after a ten year fixed term, and increase
the experience levels available to deal with the exceptional very serious offences that
might occur outside Australian civilian jurisdiction.
11. A court of record is a court that is declared by an Act to be so or a court that
has the power to impose a fine or imprisonment for contempt against it or for another
substantive offence (contempt includes disturbance of proceedings, interference with
the authority of the court or publication of material which may prejudice its
proceedings).
12. Courts martial and trials by Defence Force magistrates were not designated as
'courts of record' under the DFDA. Consistent with this, the AMC was not specifically
made a court of record because there was no legal or practical reason for doing so.
Additionally, it avoided conferring the characteristics of a civilian court (with greater
jurisdiction) on the AMC. Notwithstanding this, the functional attributes of a court of
record are provided for in the Bill, including the capacity to deal with contempt of the
court, conduct of proceedings in public, and a requirement to record proceedings. The
AMC has now been accorded the status of a court of record, noting that there will be a
provision to limit publication of proceedings in the interests of the security and
defence of Australia or for particularly sensitive matters.
13. Paragraph (8) will reinforce the provisions discussed in paragraphs 11 to 12 by
inserting new subclause 114(1A), to provide that the AMC is a `court of record'. It
will reinforce existing provisions in the DFDA which will require the public
publication of AMC records except where it would be inappropriate to do so (for
example, if it would be contrary to the interests of the security or defence of Australia,
the proper administration of justice or public morals). These examples currently
apply to the conduct of public hearings. This amendment further enhances the status
of the AMC.
14. Section 122 of the Bill currently provides for the constitution of a military jury
to be 6 members. Section 124 provides that a decision of a military jury is to be by the
agreement of at least a two-thirds majority. It is now intended to align the
constitution of a military jury with the Class of service offence (as defined).
15. Paragraph (9) of the amendments therefore amends section 122 to provide that
for a Class 1 offence, (the more serious offences), a jury of 12 members will be
required. For a Class 2 or 3 offence (the lesser offences), a jury of 6 members will be
required. This will allow for the small jury pool available to the ADF for the majority
of cases, but provide for a larger jury in the case of the more serious offences.
16. Paragraph (10) omits and substitutes subsections 124(2) and (3) of the Bill to
provide that, a decision of a military jury is to be unanimous or alternatively, by a
five-sixths majority but only in the following circumstances
· where it has deliberated for at least 8 hours and unanimous agreement has not
been reached but a five-sixths majority agreement has; and
· the court is satisfied that the deliberation time is reasonable, having regard to
the nature and complexity of the case; and
· after examining one or more jurors (on oath or affirmation) it is unlikely that
the jurors would reach unanimous agreement following further deliberation.
17. These provisions will reduce the potential for a 'hung jury' and allow for the
examination of jurors where unanimous agreement cannot be reached. The effect of
these provisions will be to increase the rigour of the decision making process. This
section is similar to provisions pertaining to juries in the Jury Act 1977 (NSW).
18. Paragraph (11) inserts new item 13A into the Bill which will amend current
section 148 of the DFDA. This section deals with the requirement of a service
tribunal, including the AMC, to keep a record of its proceedings. New item 13B
inserts new subsection 148(2) so that the AMC will not be required to publish a
record of its proceedings in certain circumstances (for example, if it would be
contrary to the interests of the security or defence of Australia, the proper
administration of justice or public morals). These exceptions will reinforce the
military court requirement that matters of national security are not compromised, in
addition to the interests of public and individual privacy.
19. Paragraph (12) amends section 188AC of the Bill which currently provides for
the appointment of the Chief Military Judge to be made by the Minister for Defence.
To unequivocally demonstrate the independence of this appointment, it is now
intended that the Governor General (acting on the advice of the Executive Council),
appoint the Chief Military Judge.
20. Paragraph (13) also amends clauses 188AC which currently provides that the
Chief Military Judge's appointment must not exceed 5 years. To better maintain a
consistent level of experience on the AMC and to further demonstrate security of
tenure and judicial independence, a fixed 10 year period of appointment of the Chief
Military Judge will be provided. A term appointment such as this will establish
security of tenure and also recognise factors peculiar to the Defence Force, such as
career progression in the ADF.
21. The note to this paragraph makes it clear that whilst there is a statutory 10 year
period of appointment, the Chief Military Judge may serve a shorter period, for
example in the case where he or she retires on reaching compulsory retirement age.
22. Paragraph (14) omits and substitutes subsection 188AC(3) of the Bill to make
it clear that a person is not eligible to be appointed as the Chief Military Judge if that
person has previously been a Chief Military Judge (however, a person may be
appointed as an acting military judge under new section 188BB). The amendment will
allow for the career progression of military judges who may aspire to the Chief
Military Judge position. It will also confirm the overall intent of section 188AC of a
fixed 10 year term of the Chief Military Judge.
23. Paragraphs (15) and (16) amend section 188AH by substituting "Governor
General" for "Minister" in respect of the granting of leave of absence for the Chief
Military Judge. This is consistent with amendments to the appointment and
termination provisions (to now be by the Governor General).
24. Paragraph (17) makes it clear that a Chief Military Judge is not eligible for
promotion except in the circumstances provided for in new section 188AJ. New
section 188AJ currently provides that the Chief Military Judge is not eligible for
promotion. Given that the period of a fixed term will now be 10 years, it would be
appropriate that the Chief Military Judge should be automatically promoted at the mid
point of his or her appointment (5 year mark). The promotion of the Chief Military
Judge will be limited to the rank of Rear Admiral in the Navy, Major General in the
Army and Air Vice-Marshal in the Air Force. This provision is intended to recognise
the status of the appointment of Chief Military Judge, which will, in turn, increase its
attractiveness to qualified and experienced legal officers.
25. Paragraph (18) omits and substitutes section 188AK which provides for the
resignation of the Chief Military Judge. To better ensure the timely replacement of a
resigning Chief Military Judge, new subsection 188AK(2) provides for a three month
period of notice for resignation, or shorter period, as agreed to by the Governor
General.
26. Paragraph (19) amends section 188AL so that the Governor General rather
than the Minister may terminate the appointment of the Chief Military Judge. This is
also consistent with amendments to the appointment provisions. This (and the
provisions relating to a military judge), reflect the overall intention to demonstrate the
independent and impartial appointment and termination process.
27. Paragraph (20) omits section 188AM, which currently automatically retires a
member from the Defence Force following his or her tenure as Chief Military Judge.
The effect of this omission will be to allow for acting military judges in certain
circumstances (see discussion of proposed section 188BB below) by enabling the
experience and expertise of a former Chief Military Judge or Military Judges to be
utilised. This will be particularly beneficial in the event of those exceptional very
serious cases that might occur outside Australian civilian jurisdiction.
28. Paragraph (21) substitutes "Governor General" in section 188AN in respect of
an acting Chief Military Judge, this will also further demonstrate the independence of
the appointment process.
29. Paragraph (22) replaces the reference to "Minister" with "Governor General"
in section 188AP, which provides for the appointment of military judges. Similar to
the appointment of the Chief Military Judge, this will also further demonstrate the
independence of this appointment process.
30. Paragraph (23) inserts a note after subsection 188AP(3) of the Bill which
specifies the number of full time (2) and part time (no more than 8) military judges.
The new note will make it clear that this limitation does not apply to acting military
judges appointed under new section 188BB, noting that they are appointed only to
meet the requirements of a particular case.
31. Paragraph (24) is similar to amendment paragraph (13) above in respect of the
period of appointment of the Chief Military Judge. To better maintain a consistent
level of experience on the AMC and to further demonstrate security of tenure, a fixed
10 year period of appointment of a military judge will be provided in section 188AP.
This provision will also allow for regular progression of legal officers through the
military ranks.
32. The note to this paragraph makes it clear that whilst there is a statutory 10 year
period of appointment, a military judge may serve a shorter period, for example in the
case where he or she retires on reaching compulsory retirement age.
33. Paragraph (25) inserts new subsection 188AP(4A) in similar terms to
paragraph (14) above so that a person must not be appointed as a military judge if he
or she has been a Chief Military Judge or a Military Judge (however, a person may be
appointed as an acting appointment under section 188BB). This amendment will
allow for the career progression of suitably qualified military legal officers who may
aspire to a Military Judge position. It will also confirm the overall intent of section
188AP of a fixed 10 year term of a Military Judge.
34. Paragraph (26) omits and substitutes, section 188AQ as the reappointment of a
military judge will not be possible. Reappointment to maintain levels of experience on
the AMC is no longer necessary given the tenure of the appointment and the proposed
provisions relating to acting appointments. New section 188AQ makes it clear that the
appointment of a part time military judge (which includes an acting military judge by
operation of new paragraph 188BB(7)(a)) will not affect such matters as the rank,
title, privileges, tenure or salary of a person who is also a justice of the High Court or
a justice or judge of a federal court.
35. Paragraph (27) adds new subsections (4), (5) and (6) to section 188AU (which
deals with the remuneration arrangements for a military judge).
36. Consistent with current provisions in the DFDA pertaining to the remuneration
of the Judge Advocate General and Deputy Judge Advocate General, new subsection
188AU(4) will preclude a magistrate, federal court or State or Territory court justice
or judge, appointed as a part time military judge or an acting military judge, from
receiving remuneration under the DFDA if they receive salary or annual allowances
by virtue of their judicial office. The rationale for such a provision is not only to
reinforce the independence and impartiality of judicial office, it is to counteract any
perception of financial advantage, incentive, or inducement in the remuneration
arrangements surrounding appointment of a part time or acting military judge.
However, a judge or magistrate will not be financially disadvantaged by the operation
of the proposed provisions, because of the intended arrangements that the Minister
may enter into to secure the services of a military judge (this also includes the
possible reimbursement of a State or Territory by the Commonwealth) (new
subsections 188AU(4) and (5).
37. The ADF currently has, as Reserve members, serving magistrates, federal
court and State and Territory judges. As it is possible that these officers may be
considered for appointment as either a part time military judge or an acting military
judge, these provisions will apply to both part time and acting military judges.
38. Paragraphs (28) and (29) replace the reference to "Minister" with "Governor
General" in respect of the granting of leave of absence of a military judge. This is
consistent with amendments to the appointment and termination provisions (to now be
by the Governor General) and again reinforce the independence and impartiality in the
appointment/termination process.
39. Paragraph (30) omits and substitutes section 188AX which currently provides
that a Military Judge is not eligible for promotion. New section 188AX reinforces this
concept, however it will reflect that, given that a military judge is appointed for a
fixed term of 10 years, it would be appropriate that a military judge should be
automatically promoted at the mid point of his or her appointment (5 year mark). The
promotion of a military judge would be limited to the rank of Commodore, Brigadier
or Air Commodore. An acting Military Judge will not eligible for promotion (see new
paragraph 188BB(7)(f)). This provision is intended to recognise the importance of the
appointment of a Military Judge, which will, in turn, increase its attractiveness to
qualified and experienced legal officers.
40. Paragraph (31) omits and substitutes section 188AY which provides for the
resignation of a Military Judge. To better ensure the timely replacement of resigning
military judges, and make provision for currently serving former military judges to be
used in an acting capacity, new subsection 188AY(2) provides for a three month
period of notice for resignation, or shorter period, as agreed by the Governor General.
41. Paragraph (32) amends section 188AZ by substituting the reference to
"Minister" with "Governor General" in respect of the termination of a military judge's
appointment. This is consistent with amendments to the appointment provisions (to
now be by the Governor General) and again to reinforce the independence and
impartiality in the appointment/termination process.
42. Paragraph (33) omits section 188BA which currently automatically retires a
member from the Defence Force following his or her tenure as a Military Judge. The
repeal of this section will be balanced by the insertion of new section 188BB which
will provide for acting military judges in certain circumstances (see discussion of
section 188BB below).
43. Paragraph (34) inserts new section 188BB to provide for "Acting Military
Judges". The intent of this amendment will be to enable a former Chief Military
Judge, military judges or civilian judicial officers serving in the Reserve to try a
charge and (if the accused has been convicted) take action under Part IV
(Punishments and orders), that may require specific expertise. It will also encourage
professional development of currently serving former military judges which will in
turn maintain the availability of their skills and experience in the future.
44. As mentioned above, the appointment of military judges will be for a 10 year
period. However, section 188BB will enable a former Chief Military Judge or
military judge or other judicial officers (for example a judge or magistrate of a federal
court or a court of a State or Territory serving in the Australian Defence Force) to act
as a military judge, in circumstances where the expertise or experience of that person
is required in respect of a particular charge. An acting military judge will be
appointed on a part time basis and be subject to the qualification and Service
deployment criteria currently contained in the Bill in respect of a military judge
(enrolled as a legal practitioner for not less than 5 years, a Permanent or Reserve
member at the Commander (E) rank and compliance with Service deployment
requirements). An acting military judge will not be eligible for promotion (see
paragraph 188BB(7)(f), which cross refers to subsection 188AX(1).
45. The Governor General will appoint an acting military judge for a period
specified in the instrument of appointment. However, the period must end on the day
specified in subsection 188BB(4). That is,:
· if a charge has been terminated (where the accused has not been convicted or
acquitted), on that day; or
· where the accused has been acquitted, on that day; or
· if the accused has been convicted, when action under Part IV (Punishments
and orders) has been taken.
46. These provisions will ensure that a period of a military judge's acting
appointment is limited so that an accused has closure in respect of a charge against
him or her, that a matter is not unnecessarily protracted and also that Commonwealth
resources are protected.
47. Some of the terms and 'conditions of employment' that apply to military
judges will also apply to an acting military judge. These are identified in subsection
188BB(7) and include matters such as, the requirement to make an oath or
affirmation, remuneration, leave of absence, termination, ineligibility for promotion,
and limitation (full time member) on outside employment.
48. Paragraphs (35), (36) and (37) amend Schedule 7 of the Bill, which provides
for classes of offences. Schedule 7 outlines the Class 1, 2 and 3 offences and items 5,
6 and 7 of the Bill (which amend section 3 of the DFDA) define these terms. The Bill
in its current form, in the definition of "class 3 offence", includes offences that are not
specified in Schedule 7 and which are punishable by imprisonment for 5 years or less.
This definition will be amended (see amendment paragraph (1) above) to also include
offences which are not punishable by imprisonment (for example, offences where a
monetary fine can be imposed as the punishment). Schedule 7 will therefore be
amended to provide that Territory offences punishable by imprisonment for 5 years or
less, or not punishable by imprisonment, or triable summarily in civilian court may
also be Class 3 offences. This amendment further clarifies the definition of Class 3
offences, consistent with the intention of the Bill.
49. Finally, Schedule 7 currently provides that certain Territory offences are Class
1 offences. These are certain serious Territory offences (for example, treason, murder
and manslaughter) that are committed in Australia. Section 63 of the DFDA requires
the consent of the Director of Public Prosecutions before they can be prosecuted
under the DFDA. However, if the same Territory offence was committed outside
Australia, Schedule 7 currently provides that they are a Class 2 offence. This
anomaly will be removed by making those particular offences Class 1 offences,
whether they were committed in or outside Australia.
50. Paragraph (38) amends the Judges Pensions' Act 1968. Given that the AMC is
a federal court, and the proposed term of appointment is for 10 years, an unintended
consequence would see military judges being eligible for pensions under the Judges'
Pensions Act 1968, in addition to the military pension scheme that applies to all
Defence Force members. In order to correct this anomaly, this paragraph amends the
Judges' Pensions Act 1968 to prevent the payment of pensions to military judges
under that Act.
51. Paragraph (39) inserts new item 33A into the Bill, to consequentially amend
section 89 of the Defence Act 1903. This section prohibits the contempt of a service
tribunal. As the AMC will have the status of a court of record under new section
114(1A), the proposed amendment to paragraph 89(1)(d) will reflect this status and
reinforce that it will be an offence to commit a contempt of the AMC.
52. Paragraph (40) inserts new item 49A into the Bill which will amend paragraph
53(4)(d) of the DFDA which is the DFDA equivalent of section 89 of the Defence Act
1903. The proposed amendment to section 53 similarly reflects the intent discussed in
paragraph 47 above.
Minor technical corrections to the Explanatory Memorandum
53. The following corrections are required to paragraphs 25, 26 and 27 of the
original Explanatory Memorandum to the Defence Legislation Amendment Bill 2006:
· Paragraph 25. This paragraph refers to "the accused is an officer or defence
member". This latter reference should be to "defence civilian";
· Paragraph 26. This paragraph refers to "If the accused is non-commissioned".
This should refer to "If the accused is an enlisted member";
· Paragraph 27. This paragraph refers to "The introduction of non-
commissioned officers (NCOs)". This should more specifically refer to "The
introduction of Warrant Officer 1 (E)".
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