CHAPTER 2


CHAPTER 2

Purpose and key provisions of the bills

Purpose of the Military Court Bill

2.1        In her Second Reading Speech, the Attorney-General outlined a number of the key features of the Military Court of Australia (Military Court) established by the Military Court Bill:

This bill establishes the Military Court of Australia in accordance with chapter III of the Constitution...

The Military Court of Australia will be a separate and uniquely identifiable federal court. This specialist court to hear Defence Force service offences will strengthen morale and operational effectiveness in the Australian Defence Force. This bill will provide the Military Court with the necessary independence and constitutional protections necessary for an impartial judiciary. Importantly, judicial officers cannot be appointed if they are currently serving in the ADF...

Under this legislation, all judicial officers appointed to the Military Court will be required to, by reason of experience or training, understand the nature of service in the Australian Defence Force...

The court will not include the option of a trial by jury...

The Military Court will consist of two divisions, the General Division, and the Appellate and Superior Division...

The Military Court of Australia will be a separate Chapter III court, and will be administered through the Federal Court of Australia. It is expected that the court will use the existing infrastructure of the Federal Court.[1]

Key provisions of the Military Court Bill

2.2        The key provisions of the Military Court Bill provide for the establishment of the Military Court under Chapter III of the Constitution and provide for, among other things, the structure, jurisdiction, practice and procedure of the court.

Creation of the court

2.3        Part 2 of the Military Court Bill creates the Military Court under Chapter III of the Constitution, provides for the two divisions of the court (the General Division, and the Appellate and Superior Division), and provides for the appointment of the Chief Justice, Judges and Federal Magistrates to the Military Court. The Explanatory Memorandum (EM) to the Military Court Bill includes a diagram outlining the structure of the Military Court (extracted below).[2]

Diagram 1. Structure of the Military Court

Diagram 1. Structure of the Military Court

Appointment of judges

2.4        Clause 11 provides that Judges and Federal Magistrates of the Military Court are to be appointed by the Governor-General by commission. Subclause 11(3) provides that a person must not be appointed a Judge or Federal Magistrate of the Military Court unless:

  • the person is, or has been, a judge of another court created by the parliament, or a judge or magistrate of a court of a state or territory;
  • the person by reason of experience or training, understands the nature of service in the ADF; and
  • the Defence Minister has been consulted in relation to the appointment.

2.5        Further, subclause 11(4) provides that a person must not be appointed as a Judge or Federal Magistrate of the Military Court if he or she is a member of the ADF; and subclause 12(1) provides that a Judge of the Military Court may hold office as a judge of another court 'created by the Parliament'.

Original jurisdiction of the court

2.6        Part 5 of the Military Court Bill deals with the original jurisdiction of the Military Court, including:

  • the original jurisdiction of the Military Court in respect of matters relating to charges of service offences;
  • procedures relating to the institution of proceedings, including charge sheets;
  • pre-trial matters, including pre-trial hearings and disclosure by the parties; and
  • matters relating to pleas, trials and verdicts.

2.7        In particular, clause 63 provides that the original jurisdiction of the Military Court includes services offences under the Defence Force Discipline Act, such original jurisdiction vested in it 'by laws made by the Parliament', and 'any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts'. The EM to the bill states that this will allow the Military Court to be vested with original jurisdiction to try service offences which would otherwise be heard by a summary authority on the election of the accused person or on referral by a service tribunal. Further, the Military Court will have original jurisdiction to hear and determine appeals on questions of law from certain determinations of courts martial and defence force magistrates.[3]

2.8        Clause 64 provides that charges of service offences are to be dealt with otherwise than on indictment. The EM states that this means that such offences 'will not be tried before a jury' and that this is 'consistent with the determination of service offences under the [Defence Force Discipline Act] which also does not provide for trial by civilian jury'.[4]

Appellate jurisdiction of the court

2.9        Part 6 of the Military Court Bill deals with the appellate jurisdiction of the Military Court, including:

  • the jurisdiction of the Military Court to hear appeals from certain judgements and decisions;
  • matters relating to bringing appeals and the constitution of the Military Court in exercising appellate jurisdiction;
  • powers of the Military Court in exercising appellate jurisdiction; and
  • provision for cases to be stated and questions to be reserved for consideration by a Full Court.

2.10      Part 7 of the Military Court Bill deals with appeals from the Military Court to the High Court of Australia. In particular, subclause 113(1) restricts appeals from a single Judge or Federal Magistrate exercising original jurisdiction of the Military Court.

Sentences and orders

2.11      Part 9 of the Military Court Bill deals with sentences and orders, including:

  • the sentencing principles that apply to the Military Court when determining what action to take under Part 9 in relation to a person who is convicted of a service offence;
  • the punishments that may be imposed by the Military Court;
  • the suspension of punishments;
  • remission of punishments; and
  • restitution and reparation orders.
Other matters

2.12      Part 11 of the Military Court Bill deals with the practices and procedures of the Military Court, including:

  • records of proceedings;
  • matters relating to the conduct of proceedings;
  • matters relating to evidence and witnesses;
  • provision for the use of video links or audio links in proceedings; and
  • matters relating to orders and judgements of the Military Court.

2.13      In particular, clause 157 provides that the Military Court must keep a record of its proceedings. Clause 176 provides that an order of the Military Court must be in writing; or be reduced to writing as soon as possible.

2.14      Schedule 1 of the Military Court Bill lists the serious service offences to be dealt with by the appellate and superior divisions of the Military Court.

Purpose of the Consequential Amendments Bill

2.15      The Attorney-General highlighted the key features of the Consequential Amendments Bill in her Second Reading Speech:

The bill makes amendments to defence and other legislation, consequential to the creation of a new Military Court of Australia. It also provides arrangements for the transition to the new Military Court system from the current interim system of courts martial and Defence Force magistrates...

Courts martial and Defence Force magistrates will be retained as a residual or backup system. They will only be used in very rare circumstances where it is necessary, but not possible, for the Military Court to conduct a trial overseas...

The bill also abolishes the Defence Force Discipline Appeal Tribunal... [and] the jurisdiction of the tribunal will be absorbed by the Military Court...

This bill also includes further initiatives to enhance the Australian Defence Force military discipline system. It modernises the existing antiquated provisions dealing with persons found unfit for trial or persons acquitted on the basis of mental impairment...

This bill will ensure that recent initiatives applying to other federal courts will apply consistently to the Military Court of Australia. Important reforms to judicial complaints handling currently before the parliament will also apply to the Military Court of Australia. The bill will provide a clearer approach to the granting of suppression orders consistent with other federal courts.[5]

Key provisions of the Consequential Amendments Bill

2.16      The key provisions of the Consequential Amendments Bill are contained in the five schedules:

  • Schedule 1 deals with amendments to the Defence Force Discipline Act;
  • Schedule 2 deals with amendments to other defence legislation;
  • Schedule 3 deals with amendments to a range of other legislation;
  • Schedule 4 repeals the Defence Force Discipline Appeals Act 1955; and
  • Schedule 5 deals with application, saving and transitional provisions.

2.17      The EM to the Consequential Amendments Bill summarises the major changes made by these amendments, including:

  • abolition of the Defence Force Discipline Appeals Tribunal (DFDAT) (the jurisdiction of the DFDAT will be absorbed by the Military Court);
  • the retention of courts martial and defence force magistrates as a residual system for use in the rare instances where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas;
  • the current internal review mechanisms for convictions and punishments imposed by service tribunals will be maintained but, where an appeal is made to the Military Court from a decision of a court martial or defence force magistrate, then these internal review processes will be discontinued;
  • there will be no appeal rights from a decision of a summary authority to the Military Court, but ADF members charged with service offences may elect to be tried, instead, by the Military Court;
  • the Defence Force Discipline Act will be amended to clarify the status and character of service offences as an offence against a law of the Commonwealth – this will affect when convictions for services offences will need to be disclosed;
  • persons found unfit for trial or persons acquitted on the basis of mental impairment will be dealt with similarly to those in the Commonwealth civilian criminal justice system;
  • the positions of the Registrar of Military Justice and the Chief Judge Advocate will be abolished (their roles support courts martial and defence force magistrates, which are anticipated to be rarely required in the new system);
  • removal of references to 'old system offences', which were a transitional measure when the Defence Force Discipline Act was introduced and can no longer be tried due to statutory time limits having now expired;
  • the requirement in existing section 63 of the Defence Force Discipline Act will continue to require the Director of Military Prosecutions to obtain the consent of the Commonwealth Director of Public Prosecutions (CDPP) prior to prosecuting certain serious service offences with civilian criminal law equivalents;
  • the Director of Military Prosecutions will continue to exist as a separate statutory office responsible for prosecuting charges in the Military Court; and
  • amendments to the Defence Act 1903 will afford the Office of the Director of Defence Counsel Services (DDCS) statutory recognition and will provide for the functions and responsibilities of the DDCS.

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