Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


DEFENCE FORCE LEGISLATION AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 361 OF 2009)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 361

 

Issued by the authority of the Minister for Defence

 

Defence Act 1903

Defence Force Discipline Act 1982

 

Defence Force Legislation Amendment Regulations 2009 (No. 1)

 

Subsection 124(1) of the Defence Act 1903 (the Defence Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Defence Act, prescribing all matters that by the Defence Act are required or permitted to be required, or that are necessary or convenient to be prescribed, for securing the good government of the Australian Defence Force (ADF) or for carrying out or giving effect to the Defence Act.

 

Subsection 197(1) of the Defence Force Discipline Act 1982 (the Discipline Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Discipline Act, prescribing all matters required or permitted by the Discipline Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Discipline Act.

 

The Regulations make consequential amendments to the Defence Force Regulations 1952 and the Defence Force Discipline Regulations 1985 to reflect and reinstate the system of trials by court martial and Defence Force magistrate that existed prior to amendments made to the Discipline Act in 2006 (discussed below). The operation of the regulations that have been amended is not affected by these consequential amendments.

 

On 26 August 2009, the High Court declared that the provisions in the Discipline Act establishing the Australian Military Court (AMC) were invalid. The Discipline was recently amended by the Military Justice (Interim Measures) Act (No.1) 2009 (Interim Measures Act) to provide for a return to the service tribunal system that existed before the creation of the AMC. To re-establish an effective and familiar military justice system, the pre-2007 DFDA has been largely reinstated.

 

These measures include reinstating:

 

·        courts martial and Defence Force magistrates trials;

·        the positions of Chief Judge Advocate, Judge Advocates and the Registrar of Military Justice; and

·        automatic command review and petitions in respect of both summary authority, courts martial or Defence Force magistrate trials.

 

The Regulations are required to reflect amendments made by the Interim Measures Act, discussed above.

 

Details of the Regulations are contained in the Attachment.

 

2

 

The Defence Act and the Discipline Act do not specify any conditions that need to be met before the power to make the proposed Regulations may be exercised.

 

Details of the Regulations are contained in the Attachment.

 

Neither the Defence Act nor the Discipline Act specify conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

There has been no consultation in the making of this instrument as it relates to the management and service of members of the ADF.

 


 

 

ATTACHMENT

 

Details of the Defence Force Legislation Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Defence Force Legislation Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Amendment of the Defence Force Regulations 1952

 

This regulation provides that the Defence Force Regulations 1952 are amended as set out in Schedule 1.

 

Regulation 4 – Amendment of the Defence Force Discipline Regulations 1985

 

This regulation provides that the Defence Force Discipline Regulations 1985 are amended as set out in Schedule 2.

 

Schedule 1 – Amendment of the Defence Force Regulations 1952

 

Item [1] – subregulation 46(1)

 

Subregulation 46(1) provides that sentences imposed by service tribunals of another country on a member of the ADF (in accordance with section 116B of the Defence Act) may be executed and enforced as if they had been imposed by the Australian Military Court. This item amends subregulation 46(1) of the Principal Regulations by replacing the reference to ‘the Australian Military Court’ with ‘court martial’.

 

Schedule 2 – Amendments of the Defence Force Discipline Regulations 1985

 

Items [1] to [5] – regulation 25A

 

Regulation 25A provides for the evidence of the speed of vehicles and the use of speed measuring devices. Items [1] to [5] omit the reference to ‘the Australian Military Court’ and substitute it with a reference to ‘a court martial or Defence Force magistrate’.

 

Item [6] – regulation 27

 

Regulation 27 provides for the evidence of a general order of a commanding officer in proceedings before the Australian Military Court. This item omits the reference to

 

2

 

‘the Australian Military Court’ and substitutes it with a reference to ‘a court martial or Defence Force magistrate’.

 

Item [7] – regulation 29

 

Regulation 29 provides for the modification of certain provisions in the Evidence Act 1971 (ACT) in their application to the Australian Military Court. This item omits the reference to ‘the Australian Military Court’ in the heading to regulation 29 and substitutes it with a reference to ‘a court martial or Defence Force magistrate’.

 

Item [8] – regulation 29

 

This item omits the reference to ‘the Australian Military Court’ and substitutes it with a reference to ‘a court martial or Defence Force magistrate’.

 

Item [9] – Schedule 1

 

Schedule 1 to the Defence Force Discipline Regulations 1985 currently makes the modifications referred to in regulation 29.

 

This item substitutes the heading to Schedule 1 to reflect the reinstatement of courts martial and Defence Force magistrate trials rather than the ‘Australian Military Court’.

 

 

 

 

 

 

 

0923889A

 


[Index] [Related Items] [Search] [Download] [Help]