Commonwealth Consolidated Acts Commonwealth Consolidated ActsAct No. 16 of 1955 as amended
This compilation was prepared on 24 September 2009
taking into account amendments up to Act No. 91 of 2009
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may
be
affected by application provisions that are set out in the Notes section
Prepared by the Office of
Legislative Drafting and Publishing,
Attorney‑General's Department,
Canberra
Contents
Part I--Preliminary 1
1............ Short title [see Note 1] ....................................................................... 1
2............ Commencement [see Note 1] .............................................................. 1
4............ Interpretation ...................................................................................... 1
5............ Extension of Act to Territories ........................................................... 3
5A......... Application of the Criminal Code ...................................................... 3
Part II--Defence Force Discipline Appeal Tribunal 4
6............ Defence Force Discipline Appeal Tribunal ........................................ 4
7............ Constitution of Tribunal ..................................................................... 4
8............ Qualification of members .................................................................... 5
8A......... Appointment of Judge as member of Tribunal not to affect tenure etc. 5
8B......... Arrangement for appointment of the holder of a judicial office of a State or the Northern Territory 6
9............ Oath or affirmation of allegiance ......................................................... 6
10.......... Remuneration and allowances of members and deputies .................... 6
11.......... Removal and suspension of members from office .............................. 6
12.......... Leave of absence and resignation ........................................................ 7
14.......... Sittings of the Tribunal ....................................................................... 7
15.......... Exercise of powers of Tribunal ........................................................... 8
15A....... Reserved decision ............................................................................... 8
16.......... Member ceasing to sit on an appeal ................................................... 9
17.......... Single member may determine certain matters .................................... 9
18.......... Sittings of Tribunal to be in public ................................................... 10
19.......... The Registrar .................................................................................... 10
Part III--Appeals to the Tribunal 12
Division 1--Bringing of appeals 12
20.......... Appeals to Tribunal ......................................................................... 12
21.......... Time for lodging appeals etc. ............................................................ 12
22.......... Frivolous or vexatious appeals ......................................................... 13
Division 2--Determination of appeals 14
23.......... Quashing of conviction etc. .............................................................. 14
24.......... New trial ........................................................................................... 15
25.......... Custody of person pending new trial ............................................... 15
26.......... Substitution of conviction for alternative offence ............................ 15
Division 3--Incidental powers of Tribunal 18
31.......... Supplementary powers .................................................................... 18
32.......... Arrest of witness for failing to appear ............................................. 19
33.......... Power to examine upon oath ............................................................ 19
34.......... Payment of witnesses, special commissioners etc. .......................... 20
35.......... Warrants ........................................................................................... 20
36.......... Tribunal may obtain reports to assist in determination of appeals .. 20
37.......... Costs ................................................................................................. 21
38.......... Restitution orders and reparation orders .......................................... 21
Division 4--Miscellaneous 22
39.......... Representation of appellants and hearing of appeals ....................... 22
40.......... Protection and immunity of members of Tribunal and of certain other persons 22
41.......... Person deemed to have been acquitted ............................................. 23
42.......... Defence of appeals ........................................................................... 23
Part IV--Offences in relation to Tribunal 24
43.......... Failure to attend or produce documents ........................................... 24
44.......... Duty of witness to continue in attendance ....................................... 24
45.......... Refusal to be sworn or give evidence ................................................ 25
46.......... Offences against the Tribunal ........................................................... 25
47.......... Orders under section 18 .................................................................... 25
48.......... Offences punishable by courts of summary jurisdiction .................. 26
50.......... Contempt of the Tribunal ................................................................. 26
Part V--References and appeals from the Tribunal to the Federal Court of Australia 28
51.......... Reference of questions of law to Federal Court of Australia ........... 28
52.......... Appeal to Federal Court of Australia from decisions of the Tribunal 28
53.......... Custody orders and sending of documents to the Federal Court of Australia 29
54.......... Record of proceedings of Tribunal to be kept .................................. 30
Part VI--Miscellaneous 31
58.......... Effect of this Act on Royal prerogative of mercy ............................ 31
60.......... Regulations ....................................................................................... 31
The Schedule 33
Notes 35
Notes to
the
Defence Force Discipline Appeals Act 1955 Note 1 The Defence Force Discipline Appeals Act 1955 as shown
in this compilation comprises Act No. 16, 1955 amended as indicated in the
Tables below. For application, saving or transitional provisions made by Schedules
2-4 of the Military Justice (Interim Measures) Act (No. 1) 2009, see
Act No. 91, 2009. All other relevant information pertaining to application,
saving or transitional provisions prior to 6 April 2001 is not included in this compilation. For subsequent information see Table A. Table of Acts
|
Act |
Number |
Date |
Date of commencement |
Application, saving or transitional provisions |
|
Courts‑Martial Appeals Act 1955 |
16, 1955 |
8 June 1955 |
1 June 1957 (see Gazette 1957, |
|
|
Statute Law Revision (Decimal Currency) Act 1966 |
93, 1966 |
29 Oct 1966 |
1 Dec 1966 |
-- |
|
Statute Law Revision Act 1973 |
216, 1973 |
19 Dec 1973 |
31 Dec 1973 |
Ss. 9(1) and 10 |
|
Defence Force |
96, 1975 |
9 Sept 1975 |
Part VII |
Ss. 118(2) and 119(2) |
|
36, 1978 |
12 June 1978 |
12 June 1978 |
-- |
|
|
19, 1979 |
28 Mar 1979 |
Parts II-XVII |
S. 124 |
|
|
Australian Federal Police (Consequential Amendments) Act 1979 |
155, 1979 |
28 Nov 1979 |
19 Oct 1979 (see s. 2(1) and Gazette 1979, No. S206) |
S. 2(2) |
|
Australian Federal Police (Consequential Amendments) Act 1980 |
70, 1980 |
28 May 1980 |
28 May 1980 |
-- |
|
61, 1981 |
12 June 1981 |
Part IX (ss. 24, 25): (b) |
-- |
|
|
153, 1982 |
31 Dec 1982 |
3 July 1985 (see |
Ss. 17(2), 22(2), (3), 35 and 36 |
|
|
65, 1985 |
5 June 1985 |
S. 3: (c) |
-- |
|
|
23, 1992 |
6 May 1992 |
6 May 1992 |
-- |
|
|
43, 1996 |
25 Oct 1996 |
Schedule 4 (item 65): Royal Assent (d) |
-- |
|
|
1, 1997 |
19 Feb 1997 |
Schedules 1 and 3: 30 Apr 1997 (see Gazette
1997, No. S91) |
-- |
|
|
Public Employment (Consequential and Transitional) Amendment Act 1999 |
146, 1999 |
11 Nov 1999 |
Schedule 1 (item 369): 5 Dec 1999 (see Gazette 1999, No. S584) (e) |
-- |
|
Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 |
24, 2001 |
6 Apr 2001 |
S. 4(1), (2) and Schedule 23: (f) |
S. 4(1) and (2) [see Table A] |
|
159, 2006 |
11 Dec 2006 |
Schedule 1: 1 Oct 2007 |
Sch. 1 (items 255-262) [see Table A] |
|
|
as amended by |
|
|
|
|
|
73, 2008 |
3 July 2008 |
Schedule 2 (item 5): (h) |
-- |
|
|
6, 2008 |
20 Mar 2008 |
Schedule 2 (items 21-26): 20 Sept 2008 |
Sch. 8 (items 1, 2, 4, 8) [see Table A] |
|
|
73, 2008 |
3 July 2008 |
Schedule 4 (item 247): 4 July 2008 |
-- |
|
|
Military Justice (Interim Measures) Act (No. 1) 2009 |
91, 2009 |
22 Sept 2009 |
Schedule 1 (items 182-248) and Schedules 2-4: Royal Assent |
Schs. 2-4 [see Note 1] |
(a) The Defence Force Discipline Appeals Act 1955 was amended by Part VII (sections 111-122) only of the Defence Force Re‑organization Act 1975, section 2 of which provides as follows:
2. This Part shall come into operation on the day on which this Act receives the Royal Assent, and the remaining provisions of this Act shall come into operation on such date as is, or such respective dates as are, fixed by Proclamation.
(b) The Defence Force Discipline Appeals Act 1955 was amended by Part IX (sections 24 and 25) only of the Statute Law Revision Act 1981, subsection 2(5) of which provides as follows:
(5) Part IX shall be deemed to have come into operation on 19 October 1979.
(c) The Defence Force Discipline Appeals Act 1955 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsections 2(1) and (17) of which provide as follows:
(1) Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.
(17) The amendment of the heading to Part II of the Defence Force Discipline Appeals Act 1955 made by this Act shall come into operation, or be deemed to have come into operation, as the case requires, immediately after the commencement of the Defence Force (Miscellaneous Provisions) Act 1982.
In pursuance of subsection 2(1), the date of commencement was 3 July 1985.
In pursuance of subsection 2(17), the date of commencement was 3 July 1985 (see Gazette 1985, No. S255).
(d) The Defence Force Discipline Appeals Act 1955 was amended by Schedule 4 (item 65) only of the Statute Law Revision Act 1996, subsection 2(1) of which provides as follows:
(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.
(e) The Defence Force Discipline Appeals Act 1955 was amended by Schedule 1 (item 369) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:
(1) In this Act, commencing time means the time when the Public Service Act 1999 commences.
(2) Subject to this section, this Act commences at the commencing time.
(f) The Defence Force Discipline Appeals Act 1955 was amended by Schedule 23 only of the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1)(a) of which provides as follows:
(1) Subject to this section, this Act commences at the later of the following times:
(a) immediately after the commencement of item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;
Item 15 commenced on 24 May 2001.
(g) Subsection 2(1) (item 12) of the Defence Legislation Amendment Act 2008 provides as follows:
(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 |
|
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 |
(h) Subsection 2(1) (item 48) of the Statute Law Revision Act 2008 provides as follows:
(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.
|
Provision(s) |
Commencement |
Date/Details |
|
48. Schedule 2, item 5 |
Immediately after the time specified in the Defence Legislation Amendment Act 2006 for the commencement of item 235 of Schedule 1 to that Act. |
1 October 2007 |
Table of Amendments
|
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted |
|
|
Provision affected |
How affected |
|
Title ..................................... |
am. No. 153, 1982; No. 159, 2006; No. 91, 2009 |
|
Part I |
|
|
S. 1 ..................................... |
am. No. 153, 1982 |
|
S. 3 ..................................... |
rep. No. 216, 1973 |
|
S. 4 ..................................... |
am. No. 216, 1973; No. 96, 1975; No. 153, 1982; No. 159, 2006; No. 6, 2008; No. 91, 2009 |
|
S. 5 ..................................... |
am. No. 216, 1973 |
|
S. 5A .................................. |
ad. No. 24, 2001 |
|
Part II |
|
|
Heading to Part II ................ |
rs. No. 65, 1985 |
|
S. 6 ..................................... |
am. No. 153, 1982 |
|
S. 7 ..................................... |
am. No. 153, 1982; No. 159, 2006 |
|
S. 8 ..................................... |
am. No. 216, 1973; No. 153, 1982; No. 159, 2006 |
|
S. 8A .................................. |
ad. No. 153, 1982 |
|
|
am. No. 159, 2006 |
|
S. 8B .................................. |
ad. No. 153, 1982 |
|
S. 9 ..................................... |
am. No. 96, 1975; No. 153, 1982; No. 159, 2006 |
|
S. 10 ................................... |
rs. No. 96, 1975 |
|
|
am. No. 43, 1996 |
|
S. 12 ................................... |
am. No. 23, 1992; No. 159, 2006 |
|
S. 13 ................................... |
am. No. 216, 1973 |
|
|
rs. No. 96, 1975 |
|
|
rep. No. 65, 1985 |
|
S. 14.................................... |
am. No. 159, 2006 |
|
S. 15.................................... |
am. No. 159, 2006; No. 6, 2008; No. 91, 2009 |
|
S. 15A ................................ |
ad. No. 153, 1982 |
|
|
am. No. 159, 2006 |
|
S. 16.................................... |
rs. No. 6, 2008; No. 91, 2009 |
|
S. 17 ................................... |
am. No. 96, 1975; No. 153, 1982; No. 159, 2006; No. 91, 2009 |
|
S. 18 ................................... |
am. No. 96, 1975; No. 159, 2006 |
|
S. 19 ................................... |
rs. No. 153, 1982 |
|
|
am. No. 146, 1999 |
|
Part III |
|
|
Heading to Part III................. |
rs. No. 6, 2008; No. 91, 2009 |
|
Div. 1A of Part III.................. |
ad. No. 6, 2008 |
|
|
rep. No. 91, 2009 |
|
S. 19A................................. |
ad. No. 6, 2008 |
|
|
rep. No. 91, 2009 |
|
Division 1 |
|
|
Div. 1 of Part III ................... |
rs. No. 153, 1982 |
|
S. 20 ................................... |
am. No. 96, 1975 |
|
|
rs. No. 153, 1982 |
|
|
am. No. 159, 2006; No. 91, 2009 |
|
S. 21 ................................... |
am. No. 216, 1973; No. 96, 1975 |
|
|
rs. No. 153, 1982 |
|
|
am. No. 159, 2006; No. 91, 2009 |
|
S. 22 ................................... |
rs. No. 153, 1982; No. 159, 2006; No. 91, 2009 |
|
Division 2 |
|
|
Div. 2 of Part III ................... |
rs. No. 153, 1982 |
|
S. 23 ................................... |
rs. No. 153, 1982 |
|
|
am. No. 159, 2006; No. 91, 2009 |
|
Ss. 24, 25 ........................... |
rs. No. 153, 1982 |
|
S. 26.................................... |
rs. No. 153, 1982 |
|
|
am. No. 159, 2006; No. 6, 2008; No. 91, 2009 |
|
S. 27.................................... |
rep. No. 153, 1982 |
|
|
ad. No. 159, 2006 |
|
|
rep. No. 91, 2009 |
|
Ss. 28-30............................ |
rep. No. 153, 1982 |
|
Division 3 |
|
|
S. 31 ................................... |
am. No. 153, 1982; No. 159, 2006; No. 6, 2008; No. 91, 2009 |
|
S. 32 ................................... |
am. No. 216, 1973; No. 70, 1980; No. 61, 1981; No. 159, 2006 |
|
S. 33 ................................... |
am. No. 96, 1975 |
|
S. 34 ................................... |
am. No. 96, 1975; No. 36, 1978 |
|
S. 35 ................................... |
rs. No. 153, 1982 |
|
|
am. No. 159, 2006; No. 91, 2009 |
|
Heading to s. 36.................. |
am. No. 6, 2008 |
|
|
rs. No. 91, 2009 |
|
S. 36 ................................... |
rs. No. 153, 1982 |
|
|
am. No. 159, 2006 (as am. by 73, 2008); No. 6, 2008 |
|
|
rs. No. 91, 2009 |
|
S. 37 ................................... |
am. No. 96, 1975; No. 36, 1978; No. 153, 1982; No. 159, 2006; No. 91, 2009 |
|
S. 38 ................................... |
am. No. 96, 1975 |
|
|
rs. No. 153, 1982 |
|
Division 4 |
|
|
Heading to s. 39.................. |
am. No. 159, 2006; No. 91, 2009 |
|
S. 39 ................................... |
am. No. 216, 1973; No. 159, 2006; No. 91, 2009 |
|
S. 40 ................................... |
am. No. 96, 1975; No. 159, 2006; No. 91, 2009 |
|
S. 41 ................................... |
rs. No. 153, 1982 |
|
Heading to s. 42.................. |
am. No. 159, 2006; No. 91, 2009 |
|
S. 42 ................................... |
am. No. 96, 1975 |
|
|
rs. No. 153, 1982 |
|
|
am. No. 1, 1997; No. 159, 2006; No. 91, 2009 |
|
Part IV |
|
|
S. 43 ................................... |
am. No. 93, 1966; No. 153, 1982; No. 24, 2001; No. 159, 2006 |
|
S. 44 ................................... |
am. No. 93, 1966; No. 153, 1982; No. 24, 2001; No. 73, 2008 |
|
S. 45 ................................... |
am. No. 93, 1966; No. 153, 1982; No. 24, 2001; No. 159, 2006 |
|
S. 46 ................................... |
am. No. 93, 1966; No. 153, 1982; No. 24, 2001 |
|
S. 47 ................................... |
am. No. 93, 1966; No. 96, 1975; No. 153, 1982 |
|
S. 48 ................................... |
am. No. 216, 1973; No. 96, 1975 |
|
S. 49 ................................... |
am. No. 96, 1975 |
|
|
rep. No. 153, 1982 |
|
S. 50 ................................... |
am. No. 216, 1973; No. 96, 1975; No. 19, 1979 |
|
|
|
|
Heading to Part V ............... |
am. No. 19, 1979 |
|
Part V ................................. |
rs. No. 153, 1982 |
|
S. 51 ................................... |
am. No. 96, 1975; No. 19, 1979 |
|
|
rs. No. 153, 1982 |
|
|
am. No. 1, 1997; No. 159, 2006; No. 91, 2009 |
|
S. 52 ................................... |
am. No. 19, 1979 |
|
|
rs. No. 153, 1982 |
|
|
am. No. 1, 1997; No. 159, 2006; No. 91, 2009 |
|
Ss. 53, 54 ........................... |
am. No. 19, 1979 |
|
|
rs. No. 153, 1982 |
|
S. 55 ................................... |
am. No. 19, 1979 |
|
|
rep. No. 153, 1982 |
|
S. 56 ................................... |
am. No. 96, 1975; No. 19, 1979 |
|
|
rep. No. 153, 1982 |
|
S. 57 ................................... |
rep. No. 153, 1982 |
|
Part VI |
|
|
S. 58 ................................... |
am. No. 153, 1982 |
|
S. 59 ................................... |
rep. No. 96, 1975 |
|
S. 60 ................................... |
am. No. 93, 1966; No. 216, 1973; No. 96, 1975; No. 153, 1982; No. 159, 2006; No. 6, 2008; No. 91, 2009 |
|
The Schedule |
|
|
The Schedule ..................... |
am. No. 153, 1982 |
Table A
Application, saving or transitional provisions
Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (No. 24, 2001)
(1) Subject to subsection (3), each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.
Defence Legislation Amendment Act 2006 (No. 159, 2006)
Schedule 1
255 Definitions
In this Part:
commencement day means the day on which this Schedule commences.
new DFDA means the Defence Force Discipline Act 1982 as amended by this Schedule.
new law means the Defence Force Discipline Act 1982 and the Defence Force Discipline Appeals Act 1955 as amended by this Schedule.
old DFDA means the Defence Force Discipline Act 1982 as in force immediately before the commencement day.
256 Application of amendments
(1) The amendments made by this Schedule apply in relation to a service offence committed by a person on or after the commencement day.
(2) The amendments made by this Schedule also apply in relation to a service offence committed by a person before the commencement day if, before the commencement day, the person had not been charged with the offence under the old DFDA.
257 Before commencement day, Director of Military Prosecutions requested trial by court martial or Defence Force magistrate
Trial by court martial
(1) Subitem (2) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to convene a court martial to try a charge of a service offence that was committed by a person before the commencement day; and
(b) the Registrar of Military Justice either:
(i) had not convened the court martial; or
(ii) had convened the court martial, but the person had not been asked to plead at the trial.
(2) If this subitem applies, then:
(a) if a court martial had been convened before the commencement day--on the commencement day, the court martial is taken to have been dissolved; and
(b) on the commencement day, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (4) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to refer a charge of a service offence that was committed by a person before the commencement day to a Defence Force magistrate for trial; and
(b) the Registrar of Military Justice:
(i) had not referred the charge; or
(ii) had referred the charge, but the person had not been asked to plead at the trial.
(4) If this subitem applies, then:
(a) if the charge had been referred to a Defence Force magistrate before the commencement day--on the commencement day, the reference is taken to have been terminated; and
(b) on the commencement day, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections for trial by court martial or Defence Force magistrate
(5) If:
(a) before the commencement day, a person made an election under subsection 131(1) of the old DFDA to have a charge against him or her tried by a court martial or Defence Force magistrate; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
258 Before commencement day, trial by court martial or Defence Force magistrate discontinued
Trial by court martial
(1) Subitem (2) applies if, before the commencement day:
(a) a court martial convicted a person of a service offence committed before the commencement day, but the court martial had not taken action under Part IV of the old DFDA; and
(b) the court martial was dissolved under section 125 of the old DFDA before the court martial had taken such action; and
(c) under subsection 125(6) of the old DFDA, the Registrar of Military Justice:
(i) had not convened a new court martial for the purpose of taking such action; or
(ii) had convened a new court martial for the purpose of taking such action, but the new court martial had not begun to hear evidence relevant to determining what action should be taken.
(2) If this subitem applies, then:
(a) if a new court martial was convened before the commencement day--on the commencement day, the new court martial is taken to have been dissolved; and
(b) on the commencement day, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (4) applies if, before the commencement day:
(a) a charge of, or conviction for, a service offence that was committed by a person before the commencement day was referred to a Defence Force magistrate; and
(b) a Defence Force magistrate:
(i) in relation to a charge--had convicted the person of the offence, but had not taken action under Part IV of the old DFDA; or
(ii) in relation to a conviction--had not taken action under Part IV of the old DFDA; and
(c) the reference was terminated under section 129A of the old DFDA before action had been taken under Part IV; and
(d) under subsection 129A(4) of the old DFDA, the Registrar of Military Justice either:
(i) referred the conviction to another Defence Force magistrate to take action under Part IV of the old DFDA; or
(ii) convened a court martial to take action under Part IV of the old DFDA; and
(e) the new Defence Force magistrate or court martial had not begun to hear evidence relevant to determining what action should be taken.
(4) If this subitem applies, then:
(a) if the conviction was referred to another Defence Force magistrate before the commencement day--on the commencement day, the reference is taken to have been terminated; and
(b) if a court martial was convened before the commencement day--on the commencement day, the court martial is taken to have been dissolved; and
(c) on the commencement day, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(d) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
259 Before commencement day, Director of Military Prosecutions requested imposition of punishment by court martial or Defence Force magistrate
Punishment imposed by court martial
(1) Subitem (2) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to convene a court martial to take action under Part IV of the old DFDA in relation to a conviction for a service offence that was committed by a person before the commencement day; and
(b) the Registrar of Military Justice:
(i) had not convened the court martial; or
(ii) had convened the court martial, but the court martial had not begun to hear evidence relevant to determining what action should be taken.
(2) If this subitem applies, then:
(a) if a court martial had been convened before the commencement day--on the commencement day, the court martial is taken to have been dissolved; and
(b) on the commencement day, the Director of Military Prosecutions is taken to have:
(i) withdrawn the request; and
(ii) requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Punishment imposed by Defence Force magistrate
(3) Subitem (4) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to refer a conviction for a service offence that was committed by a person before the commencement day to a Defence Force magistrate to take action under Part IV of the old DFDA; and
(b) the Registrar of Military Justice:
(i) had not referred the conviction; or
(ii) had referred the conviction, but the Defence Force magistrate had not begun to hear evidence relevant to determining what action should be taken.
(4) If this subitem applies, then:
(a) if the conviction had been referred to a Defence Force magistrate before the commencement day--on the commencement day, the reference is taken to have been terminated; and
(b) on the commencement day, the Director of Military Prosecutions is taken to have:
(i) withdrawn the request; and
(ii) requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections to be punished by court martial or Defence Force magistrate
(5) If:
(a) before the commencement day, a person made an election under subsection 131(2A) or (3) of the old DFDA to be punished by a court martial or Defence Force magistrate in relation to his or her conviction; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
260 On or after the commencement day, Director of Military Prosecutions requests trial by court martial or Defence Force magistrate
Trial by court martial
(1) Subitem (2) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to convene a court martial to try a charge of a service offence that was committed by a person before the commencement day.
(2) If this subitem applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (2) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to refer a charge of a service offence that was committed by a person before the commencement day to a Defence Force magistrate for trial.
(4) If this item applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections made for trial by court martial or Defence Force magistrate
(5) If:
(a) after the commencement day, a person makes an election under subsection 131(1) of the old DFDA to have a charge against him or her tried by a court martial or Defence Force magistrate; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
261 On or after commencement day, trial by court martial or Defence Force magistrate discontinued
Trial by court martial
(1) Subitem (2) applies if, on or after the commencement day:
(a) the Registrar of Military Justice dissolves a court martial under section 125 of the old DFDA; and
(b) the dissolution happens:
(i) after the court martial has convicted a person of a service offence committed before the commencement day; and
(ii) before the court martial has taken action under Part IV of the old DFDA in relation to the person.
(2) If this subitem applies, then:
(a) immediately after the court martial is dissolved, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(b) after the court martial is dissolved, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (4) applies if, on or after the commencement day:
(a) the Registrar of Military Justice terminates a reference to a Defence Force magistrate under section 129A of the old DFDA in relation to a charge of, or conviction for, a service offence that was committed by a person before the commencement day; and
(b) the termination happens:
(i) in relation to a charge--after the person has been convicted but before the Defence Force magistrate has taken action under Part IV of the old DFDA in relation to the person; and
(ii) in relation to a conviction--before the Defence Force magistrate has taken action under Part IV of the old DFDA in relation to the person.
(4) If this subitem applies, then:
(a) immediately after the reference is terminated, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(b) after the reference is terminated, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
262 On or after the commencement day, Director of Military Prosecutions requests imposition of punishment by court martial or Defence Force magistrate
Punishment imposed by court martial
(1) Subitem (2) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to convene a court martial to take action under Part IV of the old DFDA in relation to a conviction for a service offence that was committed before the commencement day.
(2) If this subitem applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Punishment imposed by Defence Force magistrate
(3) Subitem (4) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to refer a conviction for a service offence that was committed by a person before the commencement day to a Defence Force magistrate to take action under Part IV of the old DFDA in relation to the person.
(4) If this subitem applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections made for punishment by court martial or Defence Force magistrate
(5) If:
(a) after the commencement day, a person makes an election under subsection 131(2A) or (3) of the old DFDA to be punished by a court martial or Defence Force magistrate in relation to his or her conviction; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
Defence Legislation Amendment Act 2008 (No. 6, 2008)
Schedule 8
1 Definitions
In this Schedule:
commencement day means the day on which Schedules 1 to 6 to this Act commence.
main amendments made by this Act means the amendments and repeals made by the following provisions of this Act:
(a) Schedule 1;
(b) Schedule 2;
(c) Schedule 3;
(d) Schedule 4;
(e) Part 2 of Schedule 5;
(f) Part 3 of Schedule 7;
(g) items 24 to 26, 29 and 30 of Schedule 7.
old DFDA means the Defence Force Discipline Act 1982 as in force immediately before the commencement day.
old law means the Defence Force Discipline Act 1982 and the Defence Force Discipline Appeals Act 1955 as in force immediately before the commencement day.
2 Application of main amendments made by this Act
(1) The main amendments made by this Act apply in relation to a service offence committed by a person on or after the commencement day.
(2) The main amendments made by this Act also apply in relation to a service offence committed by a person before the commencement day if, before the commencement day:
(a) the person had not been charged with the offence under the old DFDA; or
(b) the person had been charged with the offence under the old DFDA but no action to deal with the charge had been taken under the old DFDA.
4 Continued application of old law to proceedings in progress before commencement day
(1) This item applies if, before the commencement day:
(a) a person had been charged with a service offence under the old DFDA; and
(b) proceedings dealing with the charge of the offence had been commenced under the old DFDA; and
(c) those proceedings (including any appeal to the Defence Force Discipline Appeal Tribunal) had not been finally determined under the old law.
(2) Despite the main amendments made by this Act, and subject to subitem (3), the old law continues to apply after the commencement day in relation to the proceedings, including any review under Part IX of the old DFDA, as if those amendments had not been made.
(3) A review of the proceedings must not be commenced under section 155 of the old DFDA after the end of 31 December 2008.
8 Regulations may deal with transitional, saving or application matters
The Governor‑General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments and repeals made by this Act.