Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DEFENCE LEGISLATION AMENDMENT BILL 2008
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments moved on behalf of the Government
(Circulated by authority of the Minister for Defence Science and Personnel, the Hon
Warren Snowdon MP)
OUTLINE
The proposed amendments will correct an anomaly in respect of the constitution of
the Australian Military Court for the trial of certain classes of offences. They will
provide for the Australian Military Court to be constituted, where there is a
combination of different classes of offences appearing on a charge sheet, according to
the more serious class of offence. The amendments will also provide for the situation
where there is more than one of the same class of offence on a charge sheet.
The amendments will address how co-accuseds' election options are treated where
they (the co-accused) appear on the same charge sheet.
The amendments will re-design certain provisions in the Bill concerning elections for
trial by the Australian Military Court to accommodate the new provisions relating to
multiple charges or accused.
The amendments will amend a provision relating to the powers of the Director of
Military Prosecutions in respect of his or her decision to require a trial by Military
Judge alone for a class 3 offence. The amendments will ensure that the Director of
Military Prosecutions may exercise some, all or any of his or her powers under
section 103A to reflect the proposed election regime.
The amendments will also make it clear that the summary authority which deals with
a charge following an accused person's decision under these provisions will not be
obliged to try the charge. The existing provisions in the Act will apply to the relevant
summary authority in respect of what must be done with the charge.
FINANCIAL IMPACT STATEMENT
There are no funding implications as a result of the proposed amendments.
BACKGROUND
Trials by the Australian Military Court for class 1, 2 and 3 offences
Section 132A of the Defence Force Discipline Act 1982 (the Act), as amended by the
Defence Legislation Amendment Act 2006, provides for the mode of trial by the
Australian Military Court (AMC) in respect of Class 1, 2 and 3 offences. A class 1
offence (for example, desertion) must be tried by a Military Judge and military jury.
There is no election for a trial by Military Judge alone for a class 1 offence. A class 2
offence (for example, possession of narcotic goods) must be tried by a Military Judge
and military jury, unless the accused person elects to be tried by a Military Judge
alone. Currently, a class 3 offence (for example, destroying or damaging service
property) must be tried by a Military Judge alone unless the accused person elects to
be tried by a Military Judge and military jury. The Defence Legislation Amendment
Bill 2008 (the Bill) enables the Director of Military Prosecutions (DMP) to decide
that a class 3 offence is to be tried by a Military Judge alone. If he or she does make
this decision, limited punishments will apply, that is, a maximum punishment of
imprisonment for a period of 6 months.
Section 122 of the Act provides for the constitution of a military jury. In a trial for a
class 1 offence, a 12 member military jury is required. In a trial for a class 2 or class 3
offence, a 6 member military jury is required.
The relevant provisions of the Australian Military Court Rules 2007 provide that in
certain circumstances, more than one charge may appear on a charge sheet and more
than one person can be charged on the same charge sheet. This means that the charges
can be dealt with at a single trial.
An unintended consequence of the operation of certain provisions in the Act relating
to the Australian Military Court (AMC) is that, where a person has been charged on a
single charge sheet with offences of different classes (for example, a class 1 offence
and a class 2 and/or class 3 offence), or charged with more than one class 2 and/or
class 3 offence, the person is able to elect different modes of trial for each of
these offences. This has had unintended administrative complications. In turn, this has
resulted in trials being delayed and has had resource implications. It also has the
potential to frustrate the military discipline process by separating related charges and
accused persons originally charged together.
The provisions of the Bill pertaining to elections for trial and how classes of offences
are treated (in the context of AMC composition) operate as they are intended, that is,
on the basis of one person and one charge. However, the provisions relating to AMC
composition in relation to class 1, 2 and 3 offences in the Defence Legislation
Amendment Act 2006 did not contemplate more than one charge or more than one
person being tried together. Therefore, the proposed amendments are required, to
rectify that anomaly outlined above and to make consequential amendments to the
Bill, to ensure that all provisions work harmoniously in the overall scheme in the Act.
The proposed amendments will correct the anomaly outlined above in respect of the
constitution of the AMC for the trial of certain classes of offences. The
amendments will provide for the AMC to be constituted, where there is a combination
of different classes of offence appearing on a charge sheet, according to the more
serious class of offence. Furthermore, the amendments will also provide for the
situation where there is more than one of the same class of offence on a charge sheet,
for example, all class 3 offences. It is intended that an election in respect of the
composition of the AMC must be in respect of all those offences.
The proposed amendments will also address how co-accuseds' election options are
treated where they (the co-accused) appear on the same charge sheet. It is intended
that co-accused will be able to exercise individual and independent elections for trial
by the AMC, rather than a summary authority, under sections 111C and 131AA of the
Bill. However, to change the default position of Military Judge and military jury in
respect of a trial for class 2 offences, all co-accused must elect to have all charges
tried by Military Judge alone. In respect of a class 3 offence, the default position is for
a trial by Military Judge alone. However, if any of the co-accused elect to be tried by
a Military Judge and military jury, the election will operate in respect of all the
charges on the charge sheet and all the co-accused. This will enable all co-accused to
benefit from a military jury trial.
It is also proposed to amend section 103A of the Bill (which enables the Director of
Military Prosecutions (DMP) to decide trial by Military Judge alone for a class 3
offence), to clarify that he or she may exercise some, all or any of his or her powers
under that section in respect of each class 3 offence on the charge sheet and each co-
accused, to reflect the proposed election regime. For example, the DMP may decide
on a Military Judge alone trial in respect of a class 3 offence for one accused, but not
in respect of another, depending on the circumstances of each case.
Transitional arrangements are also provided for. Specifically, where an accused
person has made an election in respect of an offence under the existing law, that
election will be preserved. However, where no election has been made and the
accused has not been asked to enter a plea, the new provisions will apply. This will
ensure that accuseds' election options exercised prior to the commencement of the
proposed amendments remain intact.
Summary authority's power to deal with and try a charge
The amendments will also amend provisions in the Bill pertaining to elections for trial
by the AMC in certain circumstances. Section 111B deals with an election that is
offered to an accused before the commencement of a trial. Section 111C deals with
the decisions of an accused person in respect of an offer of an election and what a
summary authority must do once the accused has made an election. For example, an
accused may decide not to accept an offer of an election or the time within which to
make an election may have expired (subsection 111C(5)) or he or she may withdraw
his or her election (subsection 111C(7)). Should any of these occur, the Bill currently
provides that a summary authority must deal with and try the charge.
The above provisions contemplate a summary authority both dealing with and trying
the charge. However, it may not be appropriate or possible for the summary authority
to try the charge. In some cases, for example, the summary authority may have
jurisdiction to deal with the charge but will not have jurisdiction to try the charge.
Likewise, rather than try a charge, it may be more appropriate for a summary
authority to refer the charge to another summary authority, refer the charge to the
DMP or not proceed with the charge. These powers are contained in existing
provisions in the DFDA pertaining to the jurisdiction of summary authorities (in
particular sections 109, 110 and 111). Subsections 111C(5) and 111C(7) as presently
drafted do not take into account these provisions.
It is therefore intended to remove the words `and try' from subsections 111C(5) and
111C(7) to make it clear that the summary authority which deals with a charge
following an accused person's decision under these subsections will not be obliged to
try the charge. The existing provisions in the Act will apply to the relevant summary
authority in respect of what must be done with the charge.
NOTES ON AMENDMENTS
Paragraph (1) inserts a reference to `4A' to the table in the Bill which outlines the
commencement regime for the provisions of the Bill. This amendment will ensure that
new Part 4A (inserted by these amendments and discussed below) to Schedule 7 of
the Bill will commence on Royal Assent.
Paragraph (2) omits and substitutes subsections 111B(1) and (2) of the Bill to
accommodate the policy discussed in the background, that is, to deal with multiple
and linked charges or co-accused persons, to enable those charges to be dealt with by
the AMC where an accused person has made an election for an AMC trial. There is no
change to the existing policy of offering an election for trial by the AMC, including in
respect of a charge of a prescribed offence, an offence that is being dealt with together
with a prescribed offence or a Schedule 1A offence, where an election is not possible
(except in respect of a Schedule 1A offence - where an election for trial by the AMC
is possible in respect of certain ranks).
Paragraph 3 omits and substitutes subsection 111C(5) which deals with the situation
where an accused person has made a decision not to elect to have a charge dealt with
by the AMC. It will include the situation where a linked charge (to reflect the
proposed amendments) has not been referred to the DMP under paragraph 111C(3)(b)
of the Bill. In this case, the summary authority must deal with the charge.
Paragraph 4 omits the reference to `and try' from subsection 111C(7). This
amendment, together with the amendments to subsection 111C(5) discussed above,
will more accurately reflect the powers of a summary authority in dealing with a
charge. The amendments will make it clear that the summary authority which deals
with a charge following an accused person's decision under these subsections will not
be obliged to try the charge. Existing provisions in the Act will apply to the relevant
summary authority in respect of what must be done in respect of a charge.
Paragraph (5) omits and substitutes subsection 131(2) of the Bill to reflect the
amendments made to section 111B (specifically, new paragraph 111B(2)(c) to enable
a senior officer to elect trial by the AMC in respect of a Schedule 1A offence. There is
no change in policy reflected in this proposed amendment.
Paragraph (6) omits notes 1 and 2 to section 131 of the Bill (which relates to an
election for trial by the AMC, offered during the trial) and substitutes notes 1 to 4.
Again, this reflects the policy outlined above, to accommodate the situation where
there are 2 or more charges or 2 or more accused. Specifically -
· Where there is 1 accused but more than 1 charge, the summary authority must
give the person the opportunity to elect an AMC trial in respect of each
charge, if it considers that an elective punishment would be appropriate in
respect of any of the charges. The summary authority must refer the charge or
charges to the DMP (unless the DMP agrees otherwise);
· Where there are more than 1 accused being tried together and more than 1
charge, the summary authority must give each person the opportunity to elect
trial by the AMC in respect of each charge in respect of which it considers an
elective punishment would be appropriate to be imposed;
· The charges mentioned above must be tried by a Military Judge alone;
· The punishments that may be awarded where the charge is dealt with
summarily (notwithstanding that an election has been offered) are outlined.
Paragraph (7) omits and substitutes subsection 131AA(5) of the Bill. It is in the same
terms as the amendment to subsection 111C(5) discussed above in paragraph (1A),
but the summary authority must then proceed with the trial of the charge.
Paragraph (8) omits item 4 of the Bill and substitutes new items 4 and 4A which
inserts proposed subsection 132AB(2A) and (2B), to reflect how a class 3 offence
(under new section 132AB discussed below)) is to be dealt with if it was referred to
the AMC because of an election under subsection 111C(1) or 131AA(1). It will be
tried by Military Judge alone.
Paragraph (9) omits and substitutes proposed section 103A of the Bill which outlines
what the DMP may do in respect of a class 3 offence. It reflects how to treat multiple
charges and accused, however, the section only deals with class 3 offences that are not
tried together with a class 1 or class 2 offence. In these circumstances, the DMP may
decide that the charge is to be tried by a military judge alone. Specifically -
· If there are 2 or more charges against an accused, the DMP may decide a
Military Judge alone trial in respect of all or any of those charges;
· If there are 2 or more accused charged together, the DMP may decide a
Military Judge alone trial in respect of all or any of the charges or all or any of
the accused;
· The punishment options available have not changed; that is, the maximum
punishment that may be awarded by a Military Judge is limited to 6 months
imprisonment.
The DMP must inform the Registrar of the Australian Military Court of his or her
decision under this section.
Paragraph (10) omits item 3 in Schedule 7 of the Bill (new section 132A(3)). It is no
longer required as its content is included in new section 132AB (discussed below).
Paragraph (11) makes a consequential amendment by changing the reference to
`paragraph 132A(3)(a)' with `subsection 132AB(2)'.
Paragraph (12) inserts new Part 4A into the Act, headed `Trials by the Australian
Military Court'. Item 30A will repeal and substitute subsection 122(1) dealing with
the composition of a military jury according to the class of offence. For instance,
where one or more of the charges are in respect of a class 1 offence, the jury must be
12 members. For any other trial, 6 members are required. This reflects a class 1
offence being of a more serious nature requiring a larger jury membership.
Paragraph (12) also adds new item 30B which repeals and substitutes section 132A,
relating to the composition of the AMC in respect of trials for class 1, class 2 and
class 3 offences. Paragraph (12) also adds new section 132AA and section 132AB.
These new sections will outline the composition of the AMC according to the
particular class and combination of offence.
Section 132A deals with class 1 offences. A trial by Military Judge and military jury
is mandatory for a class 1 offence; an accused may not elect a trial by Military Judge
alone.
Section 132AA deals with class 2 offences. Where one or more of the charges are
class 2 offences and there are no class 1 offences, the default position is a trial by
Military Judge and military jury. However, where there is only one accused person, he
or she may elect to be tried by Military Judge alone for one or all the charges. Where
there is more than one accused person being tried together, they must all elect to have
the charge or charges tried by a Military Judge alone for this to occur.
Section 132AB deals with trials of a class 3 offence. At the outset, the section makes
it clear that the DMP may decide that the charge be dealt with by Military Judge alone
under section 103A. In this case, the maximum punishment that may be imposed is
imprisonment for a maximum period of 6 months.
Where the DMP has not exercised his or her powers under section 103A, the default
position for a class 3 offence is trial by Military Judge alone. However, an accused
person or co-accused being tried together may elect to be tried by a Military Judge
and military jury in respect of one or more of the charges. In the case of co-accused,
any of the accused may make the election for a jury trial. As mentioned above, this
will enable all co-accused to benefit from a military jury trial.
Paragraph (13) makes a consequential amendment to item 35 of the Bill which
amends subparagraph 149A(a)(iii). This amendment will replace the references to
section numbers to reflect the amendments made by paragraph (12).
Paragraph (14) inserts item 4A into the Bill to provide for transitional arrangements.
As mentioned above, the amendment will make it clear that where an accused person
has made an election in respect of an offence under the existing law, that election will
be preserved. Conversely, this means that where no election has been made and the
accused has not been asked to enter a plea, the new provisions will apply. This will
ensure that accuseds' election options exercised prior to the commencement of the
proposed amendments remain intact.
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