EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 197

 

Issued by the authority of the Chief Military Judge

 

Defence Force Discipline Act 1982

 

Australian Military Court Rules 2007

 

Australian Military Court Amendment Rules 2008 (No. 3)

 

Section 149A of the Defence Force Discipline Act 1982 (the Act) provides that the Chief Military Judge may make rules of procedure, not inconsistent with the Act (including the regulations), providing for or in relation to the practice and procedure to be followed by the Australian Military Court exercising power under the Act.

 

The Australian Military Court Amendment Rules 2008 (No. 3) (the Rules) amend the Australian Military Court Rules 2007, to provide the practice and procedure for appeals and applications for an extension of time to appeal to the Australian Military Court. These reflect amendments to the Defence Force Discipline Act 1982, which commence 20 September 2008. The amendments also expand the definitions applied in the Rules, provide scope for the Court to provide relief from the Rules and amend Schedule 1.

 

Details of the Rules are outlined in the Attachment.

 

The Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).

 

Consultation was considered inappropriate and unnecessary, pursuant to section 18 of the LIA because the Rules relate to the service of members of the ADF.

 

The Rules commence on the commencement of Schedules 1 to 6 of the Defence Legislation Amendment Act 2008.

 

ATTACHMENT

 

Details of the Australian Military Court Amendment Rules 2008

 

Rule 1 identifies these rules as the Australian Military Court Amendment Rules 2008 (No. 3).

 

Rule 2 sets the commencement date as the date of commencement of Schedules 1 to 6 of the Defence Legislation Amendment Act 2008.

 

Rule 3 provides that Schedule 1 amends the Australian Military Court Rules 2007.

 

Schedule 1

 

Rule 4 provides for the interpretation of certain terms used within the Rules.

 

Rule 12 is amended to provide for case management conferences to be conducted for appeals and applications for an extension of time to appeal.

 

Rule 30 is amended to allow the recall of witnesses, by leave of the Military Judge, during an appeal or application for an extension of time to appeal.

 

Rule 42 is amended to remove reference to the Registrar referring convictions.

 

Rule 42A provide the procedure for the listing of an appeal or application for an extension of time to appeal by the Registrar.

 

Rule 43 is amended to ensure the provisions of the rule apply to recorders and interpreters.

 

Rule 62 is also amended to include reference to the hearing of an appeal or application for an extension of time to appeal.

 

Rule 64 is amended to clarify the application of the rule to trial and sentencing.

 

Rule 64A is inserted to provide the procedure for creating a record of an application for an extension of time to appeal or an appeal.

 

Part 14A Appeals from conviction by summary authority

 

Rule 68A provides the mechanism for the lodgement of a notice of appeal and an application for an extension of time to appeal.

 

Rule 68B requires the Registrar to provide the Chief Military Judge, Director of Military Prosecutions, the summary authority who convicted the person and the Director of Defence Counsel Services with a copy of an application for an extension of time to appeal or a notice of appeal.

 

Rule 68C provides the procedure which can be used to discontinue an appeal or application for an extension of time to appeal.

 

Rule 68D outlines the matters a Military Judge must have regard to when considering an application for an extension of time to appeal, the role of the Military Judge, the handling of the decisions on a application and the effect of granting the application.

 

Rule 68E allows the Registrar to request certain information relating to an appeal or application for an extension of time to appeal from a commanding officer. The information must be provided within 14 days.

 

Division 2 Conduct of appeal

 

Rule 68F deals with the conduct of an appeal.

 

Rule 68G provides for a convicted person to amend their grounds of appeal, under certain conditions and the actions a Military Judge may take if the grounds of appeal are amended.

 

Rule 68H specifies that new evidence must be provided by affidavit unless the Military Judge directs otherwise.

 

Rule 68I allows a Military Judge to require, through the Registrar, a written report from a summary authority about a summary authority proceedings being appealed against. The Registrar must give a copy of the report to the convicted person, the convicted person’s defending officer and the Director of Military Prosecutions.

 

Division 3 Decision on appeal

 

Rule 68J allows a Military Judge to determine an appeal in favour of a convicted person on grounds not set out in the notice of appeal or not argued by a convicted person. The Military Judge may also determine an appeal on the basis of material then available if a convicted person fails to comply with a direction from the Military Judge.

 

Rule 68K provides for the distribution of the decision and reasons given by a Military Judge when determining an appeal. The Registrar is required to give a copy of the decision and the reasons for the decision to the convicted person, the convicted person’s defending officer, the summary authority who convicted the person, the Director of Military Prosecutions and the Director of Defence Counsel Services.

 

Rule 68L provides the procedure when a Military Judge orders a new trial.

 

Rule 71 provides the procedure for the lodgement or giving of documents electronically to the Australian Military Court or the Registrar of the Australian Military Court.

 

Rule 72 provides the procedure for the lodgement or giving of documents electronically to a person other than the Australian Military Court or the Registrar of the Australian Military Court.

 

Rule 73 allows the Australian Military Court to provide relief from compliance with the rules.

 

Rule 74 provides that if proceedings are wanting or in doubt, the Australian Military Court may give directions which will preserve the proceedings.