Commonwealth Numbered Acts Commonwealth Numbered ActsDefence Force Discipline Act 1982
1 Subsection 3(1)
Insert:
Schedule 1A offence means:
(a) an offence specified in Schedule 1A; or
(b) an offence that is an ancillary offence in relation to an offence referred to in paragraph (a).
2 After section 111A
Insert:
(1) At the commencement of dealing with a charge against an accused person, the summary authority must give the person an opportunity to elect, in accordance with section 111C, to have the charge tried by the Australian Military Court.
Note 1: If the summary authority is dealing with an accused person in respect of 2 or more charges (the linked charges ) that arise from the same facts or circumstances, and the accused person makes an election to have one or more of the linked charges tried by the Australian Military Court, the summary authority must refer that charge or those charges and, unless the Director of Military Prosecutions agrees otherwise, any other linked charge to the Director of Military Prosecutions: see subsection 111C(3).
Note 2: If the summary authority is dealing with 2 or more accused persons together, the summary authority must give each accused person an opportunity to make an election in accordance with section 111C.
Note 3: If a charge is tried by the Australian Military Court because of an election under subsection 111C(1), the charge will be tried by a Military Judge alone: see subsection 132AB(2A).
(2) Subsection (1) does not apply in relation to:
(a) a charge of a prescribed offence; or
(b) a charge of any other service offence that:
(i) arises from the same facts and circumstances as a prescribed offence; and
(ii) is being dealt with together with that offence; or
(c) a charge of a Schedule 1A offence (other than a Schedule 1A offence covered by paragraph (b)), unless the accused person is:
(i) an officer of or below the rank of rear admiral but above the rank of lieutenant commander; or
(ii) an officer of or below the rank of major‑general but above the rank of major; or
(iii) an officer of or below the rank of air vice‑marshal but above the rank of squadron leader.
(3) The accused person must be given an opportunity to obtain legal advice in relation to the election if a legal officer is reasonably available to give such advice.
When election decision must be made
(1) If, under section 111B, a summary authority gives an accused person an opportunity to elect to have a charge tried by the Australian Military Court, the accused person must decide whether or not to make the election:
(a) within 24 hours after the opportunity to make the election is given; or
(b) if the exigencies of service do not permit the person to make the decision within that time--within such longer period (not exceeding 14 days) as the summary authority allows.
(2) The summary authority must ensure that a decision under subsection (1) is recorded in writing.
Decision to elect to have charge tried by the Australian Military Court
(3) If the accused person elects to have the charge tried by the Australian Military Court, the summary authority must:
(a) refer the charge (the first charge ) to the Director of Military Prosecutions; and
(b) unless the Director of Military Prosecutions agrees otherwise, refer any other charge (including a charge in respect of a Schedule 1A offence) against the accused person that is linked to the first charge, and that is being dealt with together with the first charge, to the Director of Military Prosecutions; and
(c) inform the Registrar that the charge or charges have been referred to the Director of Military Prosecutions.
(4) For the purposes of paragraph (3)(b), a charge (the first charge ) against a person is linked to another charge against the person if the first charge and the other charge arise from the same facts or circumstances.
Decision not to elect to have charge tried by the Australian Military Court
(5) If:
(a) the accused person:
(i) does not elect to have the charge tried by the Australian Military Court; or
(ii) does not make a decision within the time allowed under subsection (1); and
(b) the charge is not referred to the Director of Military Prosecutions under paragraph (3)(b);
the summary authority must deal with the charge.
Withdrawal of election
(6) An accused person who has elected to have a charge tried by the Australian Military Court may withdraw the election at any time before a date is fixed for hearing by the Court.
(7) If an accused person withdraws an election to have a charge tried by the Australian Military Court:
(a) the Director of Military Prosecutions must inform the Registrar; and
(b) the Director of Military Prosecutions must refer the charge, and any other charge referred to the Director of Military Prosecutions under paragraph (3)(b), to a summary authority; and
(c) the summary authority must deal with the charge or charges.
3 Section 131
Repeal the section, substitute:
131 Accused person may elect to be tried by the Australian Military Court--election during trial
(1) This section applies to a trial by a superior summary authority, or a commanding officer, of a charge of a Schedule 1A offence (other than a custodial offence).
(2) However, this section does not apply in relation to an accused person who is an officer referred to in paragraph 111B(2)(c).
(3) If, during the trial, the summary authority considers:
(a) that the evidence adduced by the prosecution is sufficient to support the charge; and
(b) that, if the accused person were convicted, it would be appropriate to impose an elective punishment on the person;
the summary authority must, before making a finding in relation to the charge, give the accused person an opportunity to elect, in accordance with section 131AA, to have the charge tried by the Australian Military Court.
Note 1: If the summary authority considers that it would be appropriate to impose elective punishments in relation to 2 or more charges that are being tried together, the summary authority must give the accused person an opportunity to make an election in relation to each charge. If the accused person makes an election to have one or more of those charges tried by the Australian Military Court, the summary authority must refer that charge or those charges and, unless the Director of Military Prosecutions agrees otherwise, any other linked charge to the Director of Military Prosecutions: see subsection 131AA(3).
Note 2: If the summary authority considers that it would be appropriate to impose, on 2 or more accused persons who are being tried together, elective punishments in relation to one or more charges, the summary authority must give each accused person an opportunity to make an election in relation to each of those charges.
Note 3: If a charge is tried by the Australian Military Court because of an election under subsection 131AA(1), the charge will be tried by a Military Judge alone: see subsection 132AB(2A).
Note 4: See section 67 and Schedule 3 (in particular, subclauses 1(3) and (4) and 2(2) and (3) of that Schedule) in relation to the punishments that a superior summary authority or a commanding officer may impose on a person convicted of a Schedule 1A offence.
(4) The accused person must be given an opportunity to obtain legal advice in relation to the election if a legal officer is reasonably available to give such advice.
When election decision must be made
(1) If, under section 131, a summary authority gives an accused person an opportunity to elect to have a charge of a Schedule 1A offence tried by the Australian Military Court, the accused person must decide whether or not to make the election:
(a) within 24 hours after the opportunity to make the election is given; or
(b) if the exigencies of service do not permit the person to make the decision within that time--within such longer period (not exceeding 14 days) as the summary authority allows.
(2) The summary authority must ensure that a decision under subsection (1) is recorded in writing.
Decision to elect to have charge tried by the Australian Military Court
(3) If the accused person elects to have the charge tried by the Australian Military Court, the summary authority must:
(a) refer the charge (the first charge ) to the Director of Military Prosecutions; and
(b) unless the Director of Military Prosecutions agrees otherwise, refer any other charge against the accused person that is linked to the first charge, and that is being tried together with the first charge, to the Director of Military Prosecutions; and
(c) inform the Registrar that the charge or charges have been referred to the Director of Military Prosecutions.
(4) For the purposes of paragraph (3)(b), a charge (the first charge ) against a person is linked to another charge against the person if the first charge and the other charge arise from the same facts or circumstances.
Decision not to elect to have charge tried by the Australian Military Court
(5) If:
(a) the accused person:
(i) does not elect to have the charge tried by the Australian Military Court; or
(ii) does not make a decision within the time allowed under subsection (1); and
(b) the charge is not referred to the Director of Military Prosecutions under paragraph (3)(b);
the summary authority must proceed with the trial of the charge.
Withdrawal of election
(6) An accused person who has elected to have a charge tried by the Australian Military Court may withdraw the election at any time before a date is fixed for hearing by the Court.
(7) If an accused person withdraws an election to have a charge tried by the Australian Military Court:
(a) the Director of Military Prosecutions must inform the Registrar; and
(b) the Director of Military Prosecutions must refer the charge, and any other charge referred to the Director of Military Prosecutions under paragraph (3)(b), to the summary authority referred to in subsection 131(1); and
(c) the summary authority must proceed with the trial of the charge or charges.
Punishments that may be imposed by summary authority
(8) If:
(a) under subsection (5) or (7), a summary authority proceeds with the trial of a charge of a Schedule 1A offence; and
(b) the summary authority convicts the accused person of the offence;
the summary authority may impose an elective punishment on the convicted person in respect of the offence.
4 After subsection 132AB(2)
Insert:
(2A) If the charge was referred to the Australian Military Court for trial because of an election by the accused person under subsection 111C(1) or 131AA(1), the charge is to be tried by a Military Judge alone.
4A Subsection 132AB(3)
Omit "subsection (2) does not apply", substitute "neither subsection (2) nor (2A) applies".
5 Before Schedule 1
Insert:
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