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2004 - 2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
DEFENCE LEGISLATION AMENDMENT BILL (No. 2) 2005
EXPLANATORY MEMORANDUM
(Circulated by the Minister for Defence, Senator Robert Hill)
DEFENCE LEGISLATION AMENDMENT BILL (No. 2) 2005
OUTLINE
This Bill will amend various Defence administered legislation. These are -
. the Defence Force Discipline Act 1982
. the Defence Act 1903
The amendments to the Defence Force Discipline Act 1982 and the Defence Act
1903 comprise the majority of the amendments, to give effect to certain
recommendations made by Brigadier the Honourable Mr Justice Abadee in his
1997 Study into the Judicial System under the Defence Force Discipline Act
(the Abadee Report) and Mr James Burchett QC in his 2001Report of an
Inquiry into Military Justice in the Australian Defence Force (the Burchett
Report). Additionally, a number of the amendments are an initial step
towards giving effect to the Government response to the Senate Foreign
Affairs, Defence and Trade References Committee inquiry into The
effectiveness of Australia's military justice system (which reported on 16
June 2005).
In broad terms, the amendments:
. create the statutory appointment of the Director of Military
Prosecutions;
. create the statutory appointment of the Registrar of Military Justice;
. create the statutory appointment of the Inspector General of the
Australian Defence Force;
. provide for the remuneration arrangements of the Chief Judge Advocate to
be set by the Remuneration Tribunal as will those for the Director of
Military Prosecutions and the Registrar of Military Justice; and
. remove the roles and functions currently given to "Convening Authorities"
in favour of the Director of Military Prosecutions, Registrar of Military
Justice and Superior Authorities.
FINANCIAL IMPACT
The proposals to establish the Director of Military Prosecutions, the
Registrar of Military Justice and the Inspector General of the Australian
Defence Force on a statutory footing will involve additional costs.
Additional costs and resources required will be met from within the
allocation.
The remaining amendments in the Bill have no financial impact.
NOTES ON CLAUSES
Clause 1
Clause 1 is a formal provision specifying the short title of the Bill as
the Defence Legislation Amendment Act (No.2) 2005.
Clause 2
Clause 2 provides for the commencement of various provisions in the Bill.
Commencement will occur in accordance with the terms of the table.
Clause 3
Clause 3 provides that the Acts specified in each of the Schedules to the
Bill are amended as provided for in the identified items in each of those
Schedules.
Schedule 1 - Director of Military Prosecutions and Registrar of Military
Justice -Defence Force Discipline Act 1982
The proposed amendments to the Defence Force Discipline Act 1982 (the Act)
contained in the Bill will, among other things, eliminate the role of a
"convening authority" and will allocate prosecution functions currently
given to convening authorities to a "Director of Military Prosecutions"
and the trial administration functions to a "Registrar of Military Justice"
. The Burchett Report recommended the establishment of the Director of
Military Prosecutions as an independent prosecutorial authority for the
Australian Defence Force , which would undertake prosecutions of members of
the Australian Defence Force facing trial by either court martial or
Defence Force magistrate under the Act.
The proposed amendments will establish the Director of Military
Prosecutions. They will also provide for the appointment, powers and
functions, tenure, qualifications, remuneration and legal immunity. Many of
the provisions have been modelled on those that establish the Director of
Public Prosecutions under the Director of Public Prosecutions Act 1990
(ACT) and the Director of Public Prosecutions Act 1983 (Cth).
The Registrar of Military Justice will assume responsibility for the
administration of courts martial or Defence Force magistrate trials and
will also assume an overall case management function. It is also proposed
that the Registrar of Military Justice will assume responsibility for
procedural and administrative powers and functions associated with post
trial administration of courts martial and Defence Force magistrate trials
under the Act presently performed by the staff of convening authorities.
Similar to the Director of Military Prosecutions, provisions relating to
the appointment, remuneration and functions, will also be provided for.
The concept of "Superior Authorities" is also being included in the Bill.
In the exercise of the prosecution discretion currently vested in convening
authorities, convening authorities have regard to the impact on discipline
of alleged offences. Where there is a significant disciplinary impact, it
may be appropriate to refer such offences to a court martial or Defence
Force magistrate. As matters are currently referred by summary authorities
to senior officers who exercise the functions of convening authorities,
senior officers have proper oversight of discipline within their respective
commands. To maintain this oversight within the new regime proposed under
the Bill, the concept of "superior authority" is being incorporated. These
will be appointed by a Service Chief and will represent the Service
interest in pursuing a matter at the court martial or Defence Force
magistrate level.
Items 1-7 -subsection 3(1) Definitions
Items 1-7 amend subsection 3(1) of the Act, the interpretation section, by
amending, adding or repealing certain definitions required as a result of
the new arrangements in the Bill.
Item 1 replaces the reference to 'a convening authority' with 'the
Registrar of Military Justice' in the definition of 'appropriate
authority'. The definition of 'appropriate authority' is used in
subsections 87(5) and 138(2) which relate to the power to issue a summons
to secure the attendance of a defendant, person or a witness before a
service tribunal. The exercise of this power to issue a summons is
consistent with the role of the Registrar of Military Justice to provide
for the administration of service tribunals.
Item 2 inserts a definition of Chief Judge Advocate.
Item 3 repeals the definition of 'convening authority'. The new
arrangements involving the Director of Military Prosecutions, Registrar of
Military Justice and superior authorities subsume the functions of
convening authorities.
Item 4 inserts a definition of Defence Force Discipline Appeal Tribunal.
Item 5 inserts a definition of Director of Military Prosecutions.
Item 6 inserts a definition of Registrar of Military Justice.
Item 7 inserts a definition of superior authority.
Item 8
Item 8 provides for the appointment of superior authorities. One of the
roles of the superior authority is to represent the interests of the
Defence Force in relation to charges referred to the Director of Military
Prosecutions. This is so that in a disciplinary process, command maintains
input into the process without interfering with the independence of the
Director of Military Prosecutions.
Items 9-11 Director of Military Prosecutions powers
Item 9 provides for the Director of Military Prosecutions to have certain
powers in relation to directing what is to be done once a charge has been
preferred by the Director of Military Prosecutions. The Director of
Military Prosecutions has the power to prefer charges as the Director of
Military Prosecutions is an 'authorized officer' for the purposes of the
section (see subsection 87(6)).
The Director of Military Prosecutions is given the power to request the
Registrar of Military Justice to refer the charge to a Defence Force
Magistrate or convene a court martial to try the charge without the need
for a charge to be first dealt with by a Commanding Officer under section
110 of the Act.
Item 10 clarifies that the powers under paragraph 87(1)(c) are in addition
to and not in substitution for the Director of Military Prosecutions's
powers under paragraphs 1(a) and (b). That is, the Director of Military
Prosecutions can order a defence member to appear before a summary
authority at a specified time and place to be dealt with in accordance with
sections 110 or 111, or cause a summons to be prepared.
To issue an enforceable order, a person issuing the order would still be
required to be capable of giving the charged member a lawful command before
issuing such an order consistent with section 27 of the Act and the Defence
Act 1903.
Item 11 repeals the existing subsection 87(6) and substitutes a new
subsection (6) to ensure that the Director of Military Prosecutions is an
authorized member for the purposes of section 87, which enables to Director
of Military Prosecutions to, inter alia, prefer charges. As a statutory
authorization, only members who are authorized members under subsection (6)
may prefer charges, and the authorization under paragraph 87(6)(b) is not
able to be delegated.
Items 12-13 Registrar of Military Justice authorisation
Item 12 inserts a reference to the Registrar of Military Justice in
subsection 88(1), to ensure that the Registrar of Military Justice is
authorized for the purposes of section 88. To issue an enforceable order, a
person issuing the order would still be required to be capable of giving
the charged member a lawful command before issuing such an order consistent
with section 27 of the Act and the Defence Act 1903.
Item 13 adds a new subsection 88(1A) which limits the actions of the
Registrar of Military Justice under subsection 81(1) to instances where the
Registrar of Military Justice has been directed by a Judge Advocate or
Defence Force magistrate to carry out the actions.
Items 14-16 'Superior authority' protections.
Item 14 amends subsection 95(4) by replacing the reference to 'convening
authority' with 'superior authority' and 'Director of Military
Prosecutions'. This item provides protection for a person in custody by
ensuring that someone in the command hierarchy is aware that a person is
being held in custody. In addition, item 14 provides further protection for
a person in custody by requiring notification to the Director of Military
Prosecutions, noting that the Director of Military Prosecutions can bring
the matter to trial.
Item 15 amends subsection 95(5) in the same way as subsection 95(4), by
replacing 'convening authority' with 'superior authority' and 'Director of
Military Prosecutions'. This item also provides protection for a person in
custody by ensuring that someone in the command hierarchy is aware that a
person is being held in custody. In addition, this item provides further
protection for a person in custody by requiring notification to the
Director of Military Prosecutions, noting that the Director of Military
Prosecutions can bring the matter to trial.
Item 16 amends subsection 95(8) by replacing 'convening authority' with
'superior authority'. This item provides protection for a person in custody
by ensuring that someone in the command hierarchy who has the authority to
order the release of the person under subsection 95(9) is aware that a
person is being held in custody.
Items 17 & 18
Item 17 amends subsection 95(8) by including the Director of Military
Prosecutions as a person that must be notified in accordance with
subsection 95(8). The Director of Military Prosecutions is included as a
person to be notified in addition to someone in the command hierarchy as an
additional protection for a person in custody. The effect of this item is
that the notification must go to two appointment holders, namely the
Director of Military Prosecutions and one of the Chief of the Defence
Force, a service chief or an authorized officer.
Item 18 amends paragraph 97(5)(a) by omitting the reference to "a convening
authority" and substituting "Director of Military Prosecutions". This will
ensure that a person is no longer subject to conditions or restrictions
when any of the appointments with the requisite power have directed that a
charge should not be proceeded with.
Items 19 - 21
Item 19 repeals and substitutes the heading of Division 1 of Part VII -
"Director of Military Prosecutions". This will reflect the fact that the
decisions made under this Division are prosecutorial decisions rather than
decisions concerning the administration of courts martial and Defence Force
magistrate trials.
Item 20 repeals the section providing for the appointment of convening
authorities, as the powers of a convening authority have been redistributed
to other appointments.
Item 21 amends subsection 103(1) so that the powers previously exercised by
a convening authority will now be exercised by the Director of Military
Prosecutions, Registrar of Military Justice or a superior authority.
Items 22 - 98, 110, 111 Allocation of Responsibilities
Items 22-48, 50-61, 64, 69, 70, 73, 76-78, 81-87, 89-95, 110, 111 amend
various sections of the Act which confer certain powers on, and make
certain courses of action available to, convening authorities. The intent
is to allocate the decisions related to serious charges to an independent
statutory authority with legal training and professional obligations, to
allocate court and trial administration to an independent authority, and to
remove the current exercise of multiple roles by a single convening
authority. The allocation of responsibilities between the Director of
Military Prosecutions and the Registrar of Military Justice reflects the
functions of the two appointments and recognises the independence of the
prosecutorial function from the administration of courts and trials.
Item 49 inserts new section 105A which will provide for the direct referral
of a charge to the Director of Military Prosecutions without the
requirement for the charge to be dealt with at a summary hearing. The
intent of this item is to allow for direct referrals to the Director of
Military Prosecutions where there would be little or no benefit from a
summary hearing. For example, either highly complex charges, or simple
charges against senior officers that cannot be tried by a summary tribunal.
Where the interests of justice so require, this item would also allow for
the Director of Military Prosecutions to be able to direct that a charge
not be proceeded with.
This power cannot be exercised by any commanding officer or superior
officer, but is exercisable only by the person's commanding officer, which
will include an officer authorized under subsection 5(1) or section 113
where it is intended that the officer would exercise the powers of a
commanding officer under the Act over the particular person, or a superior
officer in the person's chain of command. Where the person is a Defence
civilian, the relevant commanding officer or superior officer will be
discernible from the part of the Defence Force that the Defence civilian is
accompanying.
Once a charge is referred to the Director of Military Prosecutions, the
Director of Military Prosecutions will dispose of the charge under
subsection 103(1). Pursuant to subsection 105A(3), this will include the
option to refer the charge for trial by a superior summary authority or
commanding officer.
Items 62, 63 and 65-68 amend section 125 of the Act to implement the
conceptual approach to the allocation of responsibilities that were
previously exercised by convening authorities. Once a court martial has
assembled, variations to the convening order can be made only at the
direction of the Judge Advocate, who will be required to give reasons for
any such direction.
Item 71 amends paragraph 129A(1) to implement the conceptual approach to
the allocation of responsibilities that were previously exercised by
convening authorities. Prior to a Defence Force magistrate commencing to
try a charge or hear a case, a termination of the reference is made by the
Registrar of Military Justice, whereas after a Defence Force magistrate has
commenced to try a charge or hear a case, then except for as otherwise
provided in the Act, a termination of the reference can be made only at the
direction of the Defence Force magistrate, who will be required to give
reasons for any such direction.
Item 72 amends paragraph 129A(2)(a) to provide for an additional mechanism
by which a matter may be referred to the Registrar of Military Justice for
trial by Defence Force magistrate.
Item 73 amends subsection 129A(2) to allow an exception to the rule that
once a Defence Force magistrate has commenced to sit, the reference can be
terminated only at the direction of the Defence Force magistrate. The
purpose of this item is to allow for the termination of a reference when a
Defence Force magistrate is unable to make a direction under subparagraph
129A(1)(b)(ii). It could also be used in an exceptional circumstance where
a Defence Force magistrate was unwilling to make a direction under
subparagraph 129A(1)(b)(ii) but where the interests of justice plainly
required such a direction.
Items 74 and 75 amend subsection 129A(3) to implement the conceptual
approach to the allocation of responsibilities that were previously
exercised by convening authorities. Once a matter is referred back to the
Director of Military Prosecutions by the Registrar of Military Justice
under subsection 129A(3), the Director of Military Prosecutions will then
dispose of the charge under subsection 103(1).
Items 79 and 80 amend subsections 129B(1) and (2) to reflect the re-
allocation of some of the responsibilities of convening authorities to the
Registrar of Military Justice. In doing so, it is appropriate for the
Registrar of Military Justice to make decisions on bias, rather than the
Judge Advocate General.
Subsection 129B(3) ensures that with the transfer of responsibility for
court administration from command to the Registrar of Military Justice,
Service Chiefs are required to facilitate the decisions of the Registrar of
Military Justice. 'Appropriate' Service Chief is a reference to the Service
Chief of the court martial member appointed by the Registrar of Military
Justice, and is not a reference to the Service Chiefs of the defendant.
Regardless of whether there is one defendant or co-defendants, courts
martial panels may consist of members from more than one service.
Item 88 amends subsection 137(1) to provide for the re-allocation of
responsibilities previously exercised by convening authorities. The role of
superior authorities is to represent the service interests in the proper
administration of discipline, one aspect of which is ensuring appropriate
representation for an accused. The appropriate superior authority to ensure
representation for a defendant will usually be a superior authority in the
defendant's chain of command.
Items 96 and 97 amend section 149 of the Act that provides for the Judge
Advocate General to make rules of procedure to regulate the operation of
the Registrar of Military Justice. Item 96 is not intended to affect the
interpretation of other sections of the Act where the conjunction appears
only at the end of the second last subsection.
Item 98 amends section 150A of the Act. As is currently the case with
respect to convening authorities and reviewing authorities, it is envisaged
that a number of officers may be authorised as both superior authorities
and reviewing authorities. This item ensures that a particular officer may
exercise only one of the authorisations in any given case, not both. The
purpose of the amendment is to ensure the impartiality of the reviewing
authority.
Item 99
Item 99 repeals and substitutes the heading in Part XI of the Act to
reflect the new statutory appointment of the Registrar of Military Justice,
an appointment that by the nature of the position is functionally grouped
with the Judge Advocate General, Deputy Judge Advocates General and the
Chief Judge Advocate.
Items 100 & 101 Judge Advocate General appointment
Item 100 amends section 180(3) to clarify that the Judge Advocate General
may be a defence member.
Item 101 amends section 185(5) to provide similar remuneration arrangements
for a defence member who is a Judge Advocate General as that provided for
the Deputy Judge Advocate General.
Items 102 - 105 Chief Judge Advocate appointment
Items 102 and 103 amend subsections 188A(2) and 188A(3) of the Act, which
provide for the term of appointment for the Chief Judge Advocate. The term
of appointment has been changed to be consistent with the terms of
appointment of the Director of Military Prosecutions and Registrar of
Military Justice. While more than one re-appointment may be made, the
length of the appointments should be such as to ensure proper independence,
and the expectation is that an appointment would normally be for the
maximum term available.
Item 104 amends the minimum rank of the Chief Judge Advocate, so that, as a
minimum, the Chief Judge Advocate will be of equal, if not higher, rank
than the Director of Military Prosecutions. As only minimum ranks are
provided, it is technically possible for the Director of Military
Prosecutions to be promoted to a higher rank than the minimum provided
while the Chief Judge Advocate enjoys the minimum rank, but it is intended
that should the Director of Military Prosecutions be promoted above the
minimum rank specified, the Chief Judge Advocate should be promoted to an
equal or higher rank.
Item 105 inserts proposed section 188E to the Act to provide for the
remuneration of the Chief Judge Advocate to be determined by the
Remuneration Tribunal. This item has been inserted to improve the
independence of the Chief Judge Advocate, and is consistent with the
remuneration provisions of the Director of Military Prosecutions and
Registrar of Military Justice.
Item 106 Registrar of Military Justice
Item 106 adds the new Division dealing with the Registrar of Military
Justice.
Proposed section 188F creates the position of the Registrar of Military
Justice. The Burchett Report recommended the creation of a similar
appointment to assume responsibility for the administration of trials and
to assume an overall case management function. The Registrar will assume
responsibility for a number of related formal legal requirements under the
Act presently performed by convening authorities.
Proposed section 188FA provides for the functions of the Registrar of
Military Justice. The Registrar of Military Justice is separate, distinct
and independent of the Director of Military Prosecutions. Essentially, the
Registrar of Military Justice will provide administrative and management
services in connection with charges and trials under the Act. This is in
addition to functions conferred on him or her under the Act or other
Commonwealth legislation or as are prescribed under the regulations.
Proposed section 188FB provides for the manner and terms of appointment of
the Registrar of Military Justice. For example, he or she must be appointed
by the Minister on a full time basis. Other terms and conditions applicable
to the appointment may be determined by the Minister.
Proposed section 188FC provides the qualifications that a person must have
before they are appointed as Registrar of Military Justice. This item
recognises that it is essential that the Registrar of Military Justice is
an experienced military officer with significant legal experience, although
noting that routine matters may be delegated to a public servant (see
proposed section 188FM).
As remuneration and allowances are set independently, it is envisaged that
the Registrar of Military Justice could be promoted during a period of
appointment, or upon being offered re-appointment. There is no presumption
that the appointment as the Registrar of Military Justice would be a
terminal appointment in the Defence Force.
Proposed section 188FD provides for the tenure of the Registrar of Military
Justice. More than one re-appointment may be made, however, the length of
the appointments should be such as to ensure proper independence.
Proposed section 188FE provides for the manner by which the Registrar of
Military Justice may resign.
Proposed section 188FF provides that the Registrar of Military Justice must
make an oath or affirmation in accordance with the form in Schedule 4 of
the Act before proceeding to discharge the duties of his or her office. The
oath or affirmation may be made before the Judge Advocate General, a Deputy
Judge Advocate General or the Chief Judge Advocate.
Proposed section 188FG provides for the remuneration for the Registrar of
Military Justice.
Proposed section 188FH provides for the Registrar of Military Justice's
entitlement to leave and the manner in which it is granted. Recreation
leave entitlements are to be granted by the Remuneration Tribunal. Other
leave entitlements may be determined by the Minister.
Proposed section 188FI provides that the Registrar of Military Justice must
not engage practice as a legal practitioner outside the duties of his or
her office, or without the approval of the Minister engage in paid
employment outside the duties of his or her office. This section is not
intended to prevent an application by a party alleging a conflict of
interest based on the voluntary or other activities of the Registrar of
Military Justice where it is alleged that such activities may have resulted
in a conflict of interest, or reasonable apprehension of a conflict of
interest, in any particular case.
Proposed section 188FJ provides for grounds on which the appointment of the
Registrar of Military Justice can be terminated by the Minister. These are
standard provisions in respect of statutory appointments and mirror those
in respect of the Director of Military Prosecutions.
Proposed section 188FK provides that the Registrar of Military Justice is
under an obligation to disclose interests that could conflict with the
proper performance of the functions of his or her office. It also sets out
the requirement that any disclosures must be in writing and given to the
Minister. Instances of conflict might include either a direct or indirect
(whether or not pecuniary) interest and whether or not they were acquired
before or after the appointment.
Proposed section 188FL provides for the acting appointments of a Registrar
of Military Justice to be made by the Minister during a vacancy in the
office or when the Registrar of Military Justice is absent from duty or
from Australia. It further provides that anything done by or in relation to
a person purporting to act under the item is not invalid merely because the
appointment was in some way defective, the appointment ceased to have
effect or the acting arrangements had not arisen or had ceased. The item
further outlines the conditions for an acting appointment.
Proposed section 188FM provides for a broad delegation power. A broad power
of delegation is necessary to ensure the proper functioning of the office
across the entire range of Registrar of Military Justice's functions. These
delegations could be standing or for a restricted period, for example due
to absences from the office. This broad discretion enables the Registrar of
Military Justice to delegate powers consistent with the experience and
qualifications of the delegate, and the frequency of exercise of the
various powers.
Item 107 Director of Military Prosecutions
Item 107 inserts new Part XIA which establishes the Director of Military
Prosecutions. This position is established in a discrete part to reflect
the independence of the Director of Military Prosecutions.
Proposed section 188G creates the position of the Director of Military
Prosecutions.
Proposed section 188GA provides for the functions of Director of Military
Prosecutions. These are to:
. prosecute service offences in proceedings before a Defence Force
magistrate or a court marital. This sub-section is not intended to limit
the right of the Director of Military Prosecutions or the Director of
Military Prosecutions' staff to appear before a summary tribunal where
they would be otherwise entitled to appear;
. seek the consent of the Director of Public Prosecutions as required by
section 63 of the Act;
. make statements or provide information to particular persons, to the
public or to particular sections of the public relating to the exercise
of powers or the performance of functions under the Act. These statements
could, for example, relate to a decision taken whether or not to
prosecute an offence and the reasons for that decision;
. represent Service Chiefs in proceedings before the Defence Force
Discipline Appeals Tribunal. However, it is not intended to limit the
Director of Military Prosecutions's ability to brief out the whole or
part of a matter intended for determination by the Tribunal or the
Director of Military Prosecution's ability to represent Defence in
subsequent appeals;
. do anything incidental or conducive to the performance of any of the
above functions.
Proposed subsection (2) provides that the Director of Military Prosecutions
also has the additional functions conferred on the Director of Military
Prosecutions by or under the Act or any other law of the Commonwealth.
Examples of these functions are to prepare and give to the Minister an
annual report (section 169B of the Act), to prefer charges (subsection
87(1) of the Act) and direct that a charge not be proceeded with
(subsection 103(1) of the Act).
Proposed section 188GB sets out the requirements to appear as a prosecutor
at a court martial or Defence Force magistrate trial. To appear for the
prosecution, a person other than the Director of Military Prosecutions must
meet the requirements of subparagraphs (b)(i) or (ii), and have been
authorised to appear by the Director of Military Prosecutions. The Director
of Military Prosecutions could make standing authorisations or make an
authorisation for a specific trial. While generally the Director of
Military Prosecutions would authorise someone who has been made available
to the Director of Military Prosecutions under proposed section 188GQ, the
Director of Military Prosecutions may authorise other persons, including
other Defence members.
Proposed section 188GC provides for rights of appearance in civil courts.
Due to the definition of 'legal officer' in subsection 3(1), it only
applies to Defence members who are legal practitioners. A person would be
assisting the Director of Military Prosecutions when so requested by the
Director of Military Prosecutions, and the Director of Military
Prosecutions would not have to be appearing in the case him or herself.
Proposed section 188GD empowers the Director of Military Prosecutions to
give an undertaking to a potential witness in discipline proceedings that
any evidence the person may give, and anything derived from that evidence,
will not be used in evidence against the person other than for a service
offence relating to the falsity of the evidence given by the person. It
further empowers the Director of Military Prosecutions to give an
undertaking to a person that they will not be prosecuted for a service
offence, or for acts or omissions that constitute or may constitute service
offences. The undertaking may be made subject to any conditions that the
Director of Military Prosecutions considers appropriate.
These undertakings granted by the Director of Military Prosecutions are
limited actions that may be taken in relation to service offences. This
reflects the jurisdictional limits of service discipline law. When
considering whether an undertaking is appropriate, the Director of Military
Prosecutions would consider the service needs and the requirement to
maintain discipline. This item is not intended to affect any other powers
to grant immunities or undertakings.
Proposed section 188GE empowers the Director of Military Prosecutions to
give directions and guidelines in writing to investigating officers and
persons involved in the prosecution of service offences. This provision was
inserted to ensure that the Director of Military Prosecutions has the
appropriate power to ensure that prosecutions are carried out in an
effective way and that the standard of investigations and evidence
available to prosecutors is of an acceptable standard. Any direction given
must be included in a report to the Minister provided for in section 196B.
This section is not intended to apply to routine requests for further
evidence or lines of investigation in particular cases. Nothing in this
section is intended to limit the Director of Military Prosecutions from
making routine requests for further evidence or lines of investigation,
with such requests not being deemed to be legislative instruments.
The note to this section provides that any direction given must be included
in the Annual Report of the Director of Military Prosecutions under section
196B of the Act.
New Division 2 sets out the provisions for the appointment of the Director
of Military Prosecutions. These are based on provisions in other
Commonwealth legislation that statutorily establish positions for example,
the Director of Public Prosecutions.
Proposed section 188GF provides that the appointment of Director of
Military Prosecutions is to be made by the Minister, subject to such terms
and conditions other than those provided for in the Act as are determined
by the Minister and that the office is held on a full time basis.
Proposed section 188GG sets out the qualifications that a person is
required to have before being appointed as Director of Military
Prosecutions. This item recognises that it is essential that the Director
of Military Prosecutions is not just an experienced lawyer, but due to the
nature of the tasks entrusted to the position, is also an experienced
military officer. As remuneration and allowances are set independently, it
is envisaged that the Director of Military Prosecutions could be promoted
during a period of appointment, or upon being offered re-appointment.
Proposed section 188GH provides for the tenure and periods of appointment
of the Director of Military Prosecutions. More than one re-appointment may
be made, however, the length of the appointments should be such as to
ensure proper independence. There is no presumption that the appointment as
the Director of Military Prosecutions would be a terminal appointment in
the Defence Force hence the maximum period of office is to be no more than
10 years.
Proposed section 188GI provides for the process of resignation of the
Director of Military Prosecutions, that is, to provide the Minister with a
written resignation.
Proposed section 188GJ provides that the Director of Military Prosecutions
must make an oath or affirmation in accordance with the form in Schedule 4
of the Act before proceeding to discharge the duties of his or her office.
The oath or affirmation may be made before the Judge Advocate General, a
Deputy Judge Advocate General or the Chief Judge Advocate.
Proposed section 188GK provides for the remuneration of the Director of
Military Prosecutions which will be determined by the Remuneration Tribunal
or as prescribed.
Proposed section 188GL provides that the Director of Military Prosecutions
has recreation leave entitlements as determined by the Remuneration
Tribunal. The Minister may grant further leave of absence on such terms and
conditions that the Minister determines.
Proposed section 188GM provides that the Director of Military Prosecutions
must not engage in legal practice outside the duties of his or her office
nor in any outside paid employment without the approval of the Minister.
This section applies to performing legal and officer duties inside the
Defence Force, but is not intended to prevent the Director of Military
Prosecutions undertaking annual military training obligations.
Proposed section 188GN provides for the grounds on which the appointment of
the Director of Military Prosecutions can be terminated by the Minister.
These include, misbehaviour and physical or mental incapacity. However, in
certain circumstances, the Minister must terminate the appointment. For
example, if the Director of Military Prosecutions becomes bankrupt, is
absent from duty for certain periods of time, practices as a legal
practitioner outside the duties of his or her office or fails to comply
with his or her obligations under proposed section 188GO (to disclose any
interest which could cause a conflict with the performance of his or her
functions).
Proposed section 188GO provides for the requirement that the Director of
Military Prosecutions disclose interests if that interest could conflict
with the proper performance of the functions of his or her office. These
include either a direct or indirect (whether or not pecuniary) interest and
notwithstanding that they may have been acquired before or after the
appointment.
Proposed section 188GP provides that the Minister may appoint a person to
act as the Director of Military Prosecutions during a vacancy in the office
or when the Director of Military Prosecutions is absent from duty or is
absent from Australia. It further provides that anything done by or in
relation to a person purporting to act under the item is not invalid merely
because the appointment was in some way defective. The item further
outlines the conditions for an acting appointment. The person must be a
legal practitioner of more than 5 years, be a member of the Permanent Navy,
Army or Air Force (or on continuous full time Reserve service) and hold a
rank not lower than the rank of Commander, Lieutenant Colonel or Wing
Commander.
Proposed section 188GQ provides for the allocation of staff to the Director
of Military Prosecutions by the Chief of Navy, Chief of Army or Chief of
Air Force, and the Secretary of the Department of Defence.
Proposed section 188GR provides that the Director of Military Prosecutions
may delegate all or any of his or her powers to a member of the Director of
Military Prosecutions staff. A broad power of delegation is necessary to
ensure the proper functioning of the office across the entire range of
Director of Military Prosecutions's functions. These delegations could be
standing or for a restricted period, for example due to absences from the
office. Noting that some of the powers of the Director of Military
Prosecutions are currently exercised by multiple appointments of various
ranks, this broad discretion enables the Director of Military Prosecutions
to delegate powers consistent with the experience of the staff allocated
and the frequency of exercise of the various powers.
Items 108 & 109 Immunities
Item 108 inserts section 193(1A) which provides that the Judge Advocate
General has in the performance of his or her duties as the Judge Advocate
General the same protection and immunity as a Justice of the High Court.
This section is not intended to effect any protections and immunities Judge
Advocate General may have enjoyed prior to the amendment being enacted or
may continue to enjoy under any other laws.
Item 109 provides for an immunity for the Director of Military Prosecutions
and the Registrar of Military Justice for actions done or omitted to be
done in good faith in the exercise of their duties of office.
Item 112 Annual reporting
Item 112 inserts the requirement that the Director of Military Prosecutions
prepare and give to the Minister a report relating to the operations of the
Director of Military Prosecutions during the year and the content of that
report. The operation of the Registrar of Military Justice will be included
in the existing Judge Advocate General's annual report in accordance with
subsection 196A(1).
Item 113
Item 113 provides for the form of the oath or affirmation to be made and
subscribed by the Director of Military Prosecutions and Registrar of
Military Justice.
Item 114 Transitional arrangements
Item 114 provides for transitional arrangements where a matter has
commenced before the amendments take effect (the commencement date). The
intent is for any power, function or discretion that was previously
exercised by a convening authority to now be exercised by the appropriate
new authority (the designated person), or, where necessary, a combination
of designated persons. For example, in some cases a function previously
performed by a convening authority is now performed by a combination of the
Director of Military Prosecutions and the Registrar of Military Justice. In
this circumstance, neither of the designated persons can perform the
function alone.
Item 114 further provides for making new decisions as well as amending
previous decisions. For example, if a convening authority has signed a
charge sheet before the commencement date, then where under the old law a
convening authority could exercise a power or discretion to amend that
particular charge sheet, then after the commencement date a designated
person may exercise that power or discretion with respect to that charge
sheet.
'Finally dealt with' is intended to mean the complete exhaustion of all
actions that can arise in relation to the matter, including all reviews,
petitions, appeals (either under the Defence Force Discipline Appeals Act
1955 or generally) and directions for new trials or other orders or
directions.
It is intended for a 'function or power' to be interpreted broadly, and
includes the power to form a view or exercise a discretion.
Item 115 Regulations
Item 115 provides that regulations may be made by the Governor General in
relation to transitional matters.
Schedule 2 - Inspector General of the Australian Defence Force
An essential feature of an effective armed Service is the need for
discipline which is, and is seen to be, rigorously enforced. Failures in
the military justice system, when they occur, not only soon become publicly
known, but if not properly dealt with, can quickly result in damage to
reputation, morale and ultimately, operational effectiveness. The military
justice system must meet its obligations to ensure that Australian Defence
Force members are treated fairly and in accordance with the law. It must
also be supported by an independent means of dealing with failures that may
be expected to occur from time to time in any large complex system.
In his Report of an Inquiry into Military Justice in the Australian Defence
Force, July 2001, Mr J.C.S Burchett QC recommended that a Military
Inspector General be appointed to provide the Chief of the Defence Force
with constant scrutiny of the military justice system, independent of the
ordinary chain of command.
To give effect to Mr Burchett's recommendation, an Inspector General of the
Australian Defence Force is to be established in the Defence Act 1903. The
role of the Inspector General of the Australian Defence Force is to provide
the Chief of the Defence Force with ongoing review of the military justice
system, independent of the ordinary military chain of command. This
includes both Australian Defence Force discipline and Defence inquiries
system.
Item 1
Item 1 inserts a definition of "Inspector General ADF" into subsection 4(1)
of the Defence Act 1903 (the Act) to mean the Inspector General Australian
Defence Force appointed under proposed section 110B.
Item 2 Inspector General Australian Defence Force
Item 2 inserts new Part VIIIB which establishes the Inspector General
Australian Defence Force.
Proposed section 110A outlines the objects of the Part, being to provide a
mechanism for internal audit and review of the military justice system
which is independent of the ordinary chain of command and an avenue by
which failures in the military justice system can be exposed and examined
in order to assist in remedying any injustice. This gives effect to Mr
Burchett's intentions encapsulated in his recommendations.
Proposed section 110B establishes the Inspector General Australian Defence
Force as a statutory position.
Proposed section 110C outlines the functions of the Inspector General ADF.
These are to-
. inquire into or investigate matters about the military justice system;
. to conduct performance reviews including internal audits of the military
justice system at the times and in the manner the Inspector General ADF
considers appropriate;
. advise on matters concerning the military justice system , including
recommendations for improvements;
. promote military justice values across the Defence Force;
. do anything incidental or conducive to performing any of these functions.
The Inspector General ADF also has functions that are conferred on him or
her under any other law of the Commonwealth or as are prescribed under the
regulations. In particular, carrying out preliminary assessments as to
whether an inquiry or an investigation should be conducted.
The note makes it clear that the powers and procedures of the Inspector
General ADF in respect of his or her functions may be further provided for
in the regulations.
Many of the Inspector General ADF functions are associated with the conduct
of inquiries and investigations. Proposed section 110D outlines when the
Inspector General ADF may conduct such inquiries or an investigation. It
may be on his or her own initiative, as directed by the Chief of the
Defence Force or by a Service Chief or as requested by any other
individual.
New Division 2 deals with the administrative arrangements in respect of the
Inspector General ADF.
For the position of the Inspector General ADF to work successfully, he or
she must enjoy the confidence of Chief of the Defence Force and be able to
work with Chief of the Defence Force, particularly noting Mr Burchett's
recommendation that Inspector General ADF should be directly responsible to
the Chief of the Defence Force.
Proposed section 110E therefore provides that the Inspector General ADF is
to be appointed by the Minister, but having regard to any recommendations
made by the Chief of the Defence Force.
The position is to be a full time one and subject to the terms and
conditions (other than those provided for under the Act) as are determined
by the Minister.
Given the environment within which the Inspector General ADF operates, it
is essential that he or she has knowledge, understanding and experience
about military justice issues and their relevance to the role of the
Defence Force. Proposed section 110F makes it clear that a person will not
be considered suitable to be appointed as Inspector General unless he or
she has this knowledge, experience and understanding.
Proposed section 110G provides that the tenure of the Inspector General ADF
is to be expressed in the instrument of appointment, but must not exceed 5
years. Re-appointment to the position is also available.
Proposed section 110H allows the Inspector General ADF to resign by giving
the Minister a written resignation.
Proposed section 110I is an example of a standard provision contained in
Commonwealth legislation for statutory office holders in respect of
remuneration entitlements. That is, the Inspector General ADF remuneration
is to be determined by the Remuneration Tribunal or as prescribed. The
Inspector General ADF allowances are also prescribed.
Proposed section 110J describes the leave entitlement arrangements for the
Inspector General ADF. Recreation leave is to be determined by the
Remuneration Tribunal. However, for leave other than recreation leave, the
Chief of the Defence Force may grant this type of leave on terms and
conditions as to remuneration or otherwise that the Chief of the Defence
Force determines.
Proposed section 110K prohibits the Inspector General ADF from engaging in
outside paid employment without the Minister's consent.
Proposed section 110L outlines the circumstances where the Inspector
General ADF appointment must be terminated. These include bankruptcy,
failure by the Inspector General ADF to disclose a conflict of interest
under proposed section 110M or where the Inspector General ADF is absent
from duty for a period of time referred to in this clause. The appointment
may be terminated on the grounds of misbehaviour or physical or mental
incapacity.
Proposed section 110M requires the Inspector General ADF to disclose any
interest that may conflict with the performance of the functions of his or
her office. This extends to financial or other interests.
Proposed section 110N deals with acting arrangements during a vacancy in
the office or when the Inspector General ADF is absent from duty or from
Australia. It further provides that anything done by or in relation to a
person purporting to act under the section is not invalid merely because
the appointment was in some way defective, the appointment ceased to have
effect or the acting arrangements had not arisen or had ceased. The section
further outlines the conditions for an acting appointment. The Minister is
to have regard to any recommendations made by the Chief of the Defence
Force. It will also be a requirement for the person to have knowledge,
experience and understanding of military justice issues and their relevance
to the role of the Defence Force.
Proposed section 110O provides for the staff to be made available to assist
the Inspector General ADF. These will be members of the Defence Force made
available by a Service Chief, Australian Public Service employees made
available by the Secretary or other persons engaged by the Inspector
General ADF who have suitable qualifications and experience to perform
services for the Inspector General ADF. Such an engagement is to be made on
behalf of the Commonwealth and by written agreement.
Proposed section 110Q outlines the circumstances where the Inspector
General ADF or persons acting under his or her authority are protected from
civil actions. This item provides an immunity for loss, damage or injury
caused as a result of the performance or exercise in good faith of the
Inspector General ADF or persons acting under his or her authority
functions, powers or duties.
Proposed section 110R provides for the reporting requirements of the
Inspector General ADF. It is intended that the Inspector General report to
the Chief of the Defence Force as directed by Chief of the Defence Force. A
formal Annual Report is not required, as this provision formalises what
currently occurs in practice. In any case, the Inspector General ADF
contributes to the Defence Annual Report.
Item 3 Appointment inquiry officers, inquiry assistants or Assistant
Inspectors General of the Australian Defence Force
Item 3 inserts proposed section 110P which enables the Inspector General
ADF to appoint inquiry officers, inquiry assistants or Assistant Inspectors
General of the Australian Defence Force.
Item 4 Delegation of s 110P power
Item 4 inserts proposed section 110S to enable the Inspector General ADF to
delegate his or her powers under proposed section 110P to an officer not
below the rank of naval captain, colonel or group captain.
Item 5 Regulations
Item 5 adds proposed paragraph 124(1)(h) into the Act. Section 124 is the
Regulation making power under the Act. New paragraph 124(1)(h) will enable
regulations to be made in respect of the procedures, powers and reporting
obligations of the Inspector General ADF in respect of his or her functions
which include inquiries, investigations and performance reviews. This
provision is not intended to in any way limit the power under section 9A of
the Act to make Defence Instructions in relation to matters arising under
new Part VIIIB.
Items 6 & 7 Savings and Transitionals
Items 6 and 7 provide for saving and transitional arrangements following
the commencement of the Act. Item 6 continues the operation of Part 7 of
the Defence (Inquiry) Regulations 1985 and any inquiry that was being
conducted under those Regulations. Part 7 of these Regulations allow the
Inspector General ADF to appoint Investigating Officers and Inquiry
Assistants to investigate specific matters concerning the military justice
system. These Regulations will be an adjunct to Part VIIIB.
114. Item 7 enables Regulations to be made dealing with transitional
arrangements.