1Short title
This Act may be cited as the Military Justice (Interim Measures) Act (No. 2) 2009.
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Bill homepage (APH)This Act may be cited as the Military Justice (Interim Measures) Act (No. 2) 2009.
This Act commences on the day this Act receives the Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1-Effect of things done by or in relation to the Australian Military Court
Part 1-Preliminary
In this Schedule:
AMC means the Australian Military Court purportedly established by Division 3 of Part VII of the old Defence Force Discipline Act.
amended Defence Force Discipline Act means the Defence Force Discipline Act 1982 as amended by the Military Justice (Interim Measures) Act (No. 1) 2009.
commencement day means the day on which this Act commences.
DFDAT means the Defence Force Discipline Appeal Tribunal established by the Defence Force Discipline Appeals Act 1955.
High Court decision date means 26 August 2009.
liability includes a duty or obligation.
old Defence Force Discipline Act means the Defence Force Discipline Act 1982 as purportedly in force immediately before the High Court decision date.
Part IV order means a restitution order or a reparation order purportedly made under Part IV of the old Defence Force Discipline Act.
right includes an interest or status.
2 Object and effect of Schedule etc.
The main object of this Schedule is to maintain the continuity of discipline in the Defence Force.
The provisions of this Schedule that declare people to have particular rights or liabilities have effect for Defence Force service purposes only.
If a provision of this Schedule:
would, apart from this subitem, have an application (an invalid application) in relation to:
one or more particular persons, things, matters, places, circumstances or cases; or
one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;
because of which the provision exceeds the Commonwealth's legislative power; and
also has at least one application (a valid application) in relation to:
one or more particular persons, things, matters, places, circumstances or cases; or
one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;
that, if it were the provision's only application, would be within the Commonwealth's legislative power;
it is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application.
3 Reliance on, and enforcement of, declared rights etc.
This item applies if, under an item of this Schedule (the applicable item), the rights and liabilities of a person are declared to be, and always to have been, the same as if certain matters (the assumed matters) specified in the applicable item had been the case.
Without limiting the effect of the applicable item:
all persons are, by force of this item, declared to be, and always to have been, entitled to act on the basis that other persons had, and have, the rights and liabilities as declared by the applicable item; and
a right or liability that a person is declared to have by the applicable item:
is exercisable or enforceable; and
is to be regarded as always having been exercisable or enforceable;
as if the assumed matters had in fact been the case.
This item has effect subject to subitem 2(2).
Part 2-Things done by the AMC, otherwise than on appeal
This Part applies to things purportedly done by the AMC, otherwise than under Part IX of the old Defence Force Discipline Act, before the High Court decision date.
Part IX of the old Defence Force Discipline Act dealt with appeals to the AMC. Appeals to the AMC are dealt with in Part 3 of this Schedule.
This item applies if the AMC purported to:
impose a punishment, other than imprisonment as mentioned in paragraph 68(1)(a) or (b) of the old Defence Force Discipline Act; or
make a Part IV order.
The rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time (the punishment time) when the punishment or order was purportedly imposed or made; and
the punishment or order had instead been properly imposed or made at the punishment time, under that Act as so in force, by a general court martial; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after the punishment time:
a competent reviewing authority had reviewed the punishment or order imposed or made by the general court martial;
the reviewing authority had approved the punishment or order, or had decided not to quash or revoke the punishment or order;
any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted; and
if:
the punishment is detention or a fine; and
the AMC also purported to make an order (the suspension order) under section 78 or 79 of the old Defence Force Discipline Act suspending the whole or part of the punishment;
in addition to paragraphs (b) and (c) of this subitem, the general court martial had, immediately after the punishment time, made an order under section 78 or 79 of the amended Defence Force Discipline Act as so in force in the same terms as the suspension order.
If the punishment is dismissal, and the AMC purported, under subsection 171(1B) of the old Defence Force Discipline Act, to order that the dismissal was to take effect on a specified day, subitem (2) applies as if the general court martial had made an order in the same terms (and had power to make that order).
The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.
Subject to subitem (2), if the AMC purported to:
acquit a person of a service offence; or
convict a person of a service offence;
the person is not liable to be tried, under the amended Defence Force Discipline Act, for the same offence or for an offence that is substantially the same offence.
This item does not apply to a purported conviction:
if:
a punishment or Part IV order was purportedly imposed or made by the AMC in respect of the conviction; and
item 5 does not have effect, for any reason, in relation to the purported punishment or order; or
in relation to which the AMC had not, by the High Court decision date, imposed a punishment or made an order under Part IV of the old Defence Force Discipline Act.
For the purposes of this item, the purported dismissal of a charge under section 132B or 132D of the old Defence Force Discipline Act is taken to be a purported acquittal by the AMC of the service offence that was the subject of the charge.
This item does not affect the jurisdiction of a civil court (as defined in the amended Defence Force Discipline Act) to try a charge of a civil court offence (as defined in that Act).
This item applies if (whether before, on or after the High Court decision date) administrative action is or was purportedly taken in relation to a person, for Defence Force service purposes, in reliance on, or by reference to, a purported conviction by the AMC of a person of a service offence.
For the purposes of subitem (1), administrative action includes (but is not limited to) any of the following actions:
placing a person on an unsuitability report;
giving a person a formal warning;
censuring a person;
changing the employment category of a person;
changing the employment entitlements of a person (including forfeiture of salary or allowances);
removing a security clearance, or changing the security classification, of a person;
denying or delaying the promotion of a person;
revoking a provisional promotion of a person;
removing a person from a posting, or changing the posting of a person;
removing a person from an appointment (including a position of command or authority) associated with a posting, or changing the appointment of the person;
removing a person from a locality, or changing the locality of the person;
reducing the rank or seniority of a person;
terminating the service of a person.
If this item applies, the administrative action is, by force of this item, declared to be, and always to have been, entitled to be taken (and to have been taken) on the basis of the rights and liabilities as declared by item 5.
This item does not apply to action purportedly taken for the purpose of executing or enforcing a punishment or Part IV order.
Part 3-Things done by the AMC on appeal
This Part applies to things purportedly done by the AMC, under Part IX of the old Defence Force Discipline Act, before the High Court decision date.
If the AMC purported to quash a conviction by a summary authority of a person of a service offence, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time when the purported quashing occurred; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:
a competent reviewing authority had reviewed the conviction;
the reviewing authority had quashed the conviction.
For what happens if the AMC purported to order a new trial, see item 27.
If the AMC purported to vary a punishment imposed by a summary authority, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time when the purported variation occurred; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:
a competent reviewing authority had reviewed the punishment;
the punishment, as purportedly varied, had been imposed by the reviewing authority;
any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.
If the AMC purported to:
quash a punishment imposed by a summary authority; and
take action (the substituted action) under Part IV of the old Defence Force Discipline Act (as mentioned in paragraph 167(2)(b) of that Act);
the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time when the purported quashing occurred; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:
a competent reviewing authority had reviewed the punishment;
the reviewing authority had quashed the punishment and taken the substituted action;
any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.
The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.
If the AMC purported to vary a Part IV order made by a summary authority, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time when the purported variation occurred; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:
a competent reviewing authority had reviewed the Part IV order;
the Part IV order, as purportedly varied, had been made by the reviewing authority;
any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.
If the AMC purported to:
revoke a Part IV order made by a summary authority; and
take action (the substituted action) under Part IV of the old Defence Force Discipline Act (as mentioned in paragraph 167A(2)(b) of that Act);
the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time when the purported revocation occurred; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:
a competent reviewing authority had reviewed the Part IV order;
the reviewing authority had revoked the Part IV order and taken the substituted action;
any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.
The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.
12 Dismissal of appeals and confirmation of punishments etc.
If the AMC purported to dismiss an appeal against a conviction by a summary authority of a person of a service offence, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time when the purported dismissal of the appeal occurred; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:
a competent reviewing authority had reviewed the conviction;
the reviewing authority had decided not to quash the conviction;
any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.
If the AMC purported to confirm a punishment or Part IV order imposed or made by a summary authority, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:
the amended Defence Force Discipline Act had been in force on and after the time when the purported confirmation of the punishment or Part IV order occurred; and
the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:
a competent reviewing authority had reviewed the punishment or Part IV order;
the reviewing authority had approved the punishment or order, or had decided not to quash or revoke the punishment or order;
any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.
The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.
Part 4-Things done on appeal from the AMC
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