Defence Force Discipline Appeals Regulations 1957

Statutory Rules 1957 No. 20 as amended

made under the

Defence Force Discipline Appeals Act 1955

This compilation was prepared on 20 September 2008
taking into account amendments up to SLI 2008 No. 186

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

Contents

 1 Name of Regulations [see Note 1]

 2 Definitions 

 3 Period for appeal from a decision of a single member of the Tribunal             

 9 Lodgement of appeals etc 

 10 Furnishing records of Australian Military Court etc to Tribunal             

 11 Legal aid 

 12 Discontinuance of Appeals etc 

 13 Manner of enforcing order for payment of costs 

 16 Offender appellant in custody 

 17 Registry 

 18 Notification of hearing 

 19 Copy of regulations to be supplied 

 21 Assistant Registrar 

 22 Fees to witnesses 

 23 Fees for supplying copies 

 24 Procedure following decision on appeal, application or matter             

Notes   

1 Name of Regulations [see Note 1]

  These Regulations are the Defence Force Discipline Appeals Regulations 1957.

2 Definitions

Act means the Defence Force Discipline Appeals Act 1955.

Director of Military Prosecutions has the same meaning as in the Defence Force Discipline Act 1982.

Deputy Registrar means a Deputy Registrar appointed under subsection 19 (2) of the Act.

detention centre has the same meaning as in the Defence Force Discipline Act 1982.

legal practitioner has the same meaning as in section 39 of the Act.

Registrar means the Registrar of the Defence Force Discipline Appeal Tribunal but does not include a Deputy Registrar.

Registrar of the Australian Military Court has the same meaning as in the Defence Force Discipline Act 1982.

3 Period for appeal from a decision of a single member of the Tribunal

  For the purposes of subsection 17 (2) of the Act, the prescribed period within which a person affected by a decision given by a single member of the Tribunal may appeal to the Tribunal from the decision is a period of 10 days from the day on which he or she is notified of the decision.

9 Lodgement of appeals etc

 (1) For the purpose of paragraph 21 (1) (b) of the Act, the following persons are prescribed, namely:

 (a) a Deputy Registrar;

 (ab) the Registrar of the Australian Military Court;

 (b) in the case of an offender appellant, other than an offender appellant referred to in paragraph (c), (d) or (e) — the officer commanding any unit of the Defence Force;

 (c) where the offender appellant is in custody on board a ship, other than a ship of the Australian Navy, being a ship on board which is a body, contingent or detachment of the Defence Force — the officer commanding the body, contingent or detachment;

 (d) where the offender appellant is confined in a detention
centre — the officer in charge of the detention centre;

 (e) where the offender appellant is confined in a civil prison in Australia — the Governor of the prison.

 (2) Where an appeal or an application for leave to appeal is lodged with a person referred to in subregulation (1), that person shall forward the appeal or application to the Registrar.

10 Furnishing records of Australian Military Court etc to Tribunal

 (1) This regulation applies if:

 (a) a question of law is referred to the Tribunal under section 19A of the Act; or

 (b) an appeal, or an application for leave to appeal, is brought before the Tribunal under section 20 of the Act.

 (2) The Registrar of the Australian Military Court must, if requested by the Registrar, provide to the Tribunal:

 (a) a record of the proceedings of the Australian Military Court; and

 (b) documents that were before the Australian Military Court in connection with the proceedings.

 (3) If a record or document provided to the Tribunal under subregulation (2) is no longer required for the purposes of determining a question of law, an appeal, or an application for leave to appeal, the Registrar must ensure that the record or document is returned to the Registrar of the Australian Military Court.

11 Legal aid

 (1) An offender appellant may, within a period of 14 days, or such longer period as the Tribunal allows, from the day on which the offender appellant lodged his or her appeal or application for leave to appeal, apply to the Tribunal for the approval of the Tribunal to the granting of legal aid to the offender appellant under this regulation.

 (2) An application under subregulation (1) must be accompanied by a statutory declaration made by the offender appellant setting out such information as is necessary to enable the Tribunal to determine whether the offender appellant’s means are insufficient to enable him or her to prosecute the appeal or application for leave to appeal.

 (3) If, upon an application being made to the Tribunal under this regulation, the Tribunal is satisfied:

 (a) that the appellant has insufficient means to enable him or her to prosecute his or her appeal or application for leave to appeal; and

 (b) that it appears desirable in the interests of justice that legal aid should be granted to the appellant under this regulation,

the Tribunal may, by order, approve the granting to the appellant of legal aid under this regulation.

 (4) If the Tribunal approves the granting to an appellant of legal aid under this regulation, the Attorney‑General may arrange for one or more legal practitioners to represent the appellant at the hearing of the appeal or application for leave to appeal, or of a matter preliminary or incidental to the appeal.

 (5) Where, under subregulation (4), the Attorney‑General arranges for a legal practitioner to represent an appellant, the legal practitioner shall be paid by the Commonwealth such amount for fees and disbursements as is determined by the Attorney‑General.

12 Discontinuance of Appeals etc

  An offender appellant or the Director of Military Prosecutions may, by notice in writing to the Registrar:

 (aa) withdraw a referral of a question of law to the Tribunal; or

 (a) withdraw an application for leave to appeal; or

 (b) discontinue an appeal;

at any time before the hearing of the application is commenced.

13 Manner of enforcing order for payment of costs

  An order made under subsection 37 (3) of the Act for the payment of the amount of any costs may be enforced:

 (a) by the Commonwealth suing for and recovering the amount in a court of competent jurisdiction as if the amount were a debt due to the Commonwealth; or

 (b) by deducting the amount from any pay and allowances earned by the offender appellant as a member of the Defence Force,

or partly in one way and partly in the other way.

16 Offender appellant in custody

 (1) Where an offender appellant in custody is entitled to be present at the hearing of his or her appeal or application for leave to appeal, or of a matter preliminary or incidental to the appeal, the Registrar shall transmit to the person who has the custody of the offender appellant a certificate signed by the Registrar stating:

 (a) that the offender appellant is so entitled; and

 (b) particulars of the place where, and of the times at which, the appeal or application for leave to appeal, or the matter preliminary or incidental to the appeal, as the case may be, will be heard.

 (2) Where a person who has the custody of an offender appellant receives a certificate under subregulation (1), he or she shall, and by these regulations is authorized to, take such steps as are necessary to ensure:

 (a) that the offender appellant is taken to the place specified in the certificate at the times so specified; and

 (b) that the offender appellant will continue to be present at that place during the hearing of the appeal or application for leave to appeal, or of the matter preliminary or incidental to the appeal, as the case may be.

 (3) Where an offender appellant in custody is to be taken to a place at which he or she is entitled to be present for the purposes of the Act, the person who has the custody of the offender appellant shall ensure that the offender appellant is under guard:

 (a) during the time the offender appellant is travelling to, and returning from, the place; and

 (b) unless the Tribunal otherwise orders, during the time the offender appellant is present at the place.

17 Registry

 (1) There shall be a Registry of the Tribunal, which shall be at such place as the President directs.

 (2) The Registrar shall have the custody of such of the records of the Tribunal as are kept in the Registry and of the documents lodged or filed with the Registrar or a Deputy Registrar.

 (3) The Registrar shall keep:

 (a) proper records of proceedings before the Tribunal and of documents of which he or she has the custody; and

 (b) such indexes as will enable documents of which he or she has the custody to be referred to.

18 Notification of hearing

  The Registrar must, as soon as practicable before the hearing to determine a question of law, the hearing of an appeal, the hearing of an application for leave to appeal, or the hearing of a matter preliminary or incidental to an appeal, notify the following persons, in writing, of the time, date and place of the hearing:

 (a) the offender appellant or the legal practitioner, if any, by whom the offender appellant is to be represented at the hearing;

 (b) the Chief of the Defence Force, or service chief, whose duty it is to undertake the defence of the appeal, application or matter by an offender appellant;

 (c) the Director of Military Prosecutions.

19 Copy of regulations to be supplied

  The Registrar shall, as soon as practicable after he or she receives an application for leave to appeal, supply the offender appellant with a copy of these regulations free of charge.

21 Assistant Registrar

 (1) In this regulation, the assistant Registrar means:

 (a) where there is one Deputy Registrar only — that Deputy Registrar; or

 (b) where there is more than one Deputy Registrar — the Deputy Registrar appointed by the President to be the assistant Registrar.

 (2) In the event of the absence, through illness or otherwise, of the Registrar or of a vacancy in the office of Registrar, the assistant Registrar has all the powers and functions, and shall perform all the duties, of Registrar during the absence or vacancy.

22 Fees to witnesses

  The allowances payable under subsection 34 (1) of the Act to a witness (other than a member of the Defence Force rendering service) are such fees and travelling expenses as the Registrar thinks fit to allow in accordance with the scale in the Second Schedule to the Public Works Committee Regulations as in force from time to time under the Public Works Committee Act 1969.

23 Fees for supplying copies

  Where a copy of a document relating to an appeal is supplied by the Registrar to the offender appellant, the offender appellant shall pay to the Registrar a fee of:

 (a) where the number of pages of photocopy required to reproduce the document does not exceed 50 pages — $12; or

 (b) where the number of pages of photocopy required to reproduce the document exceeds 50 pages — $12 plus 10 cents for each page of photocopy required in excess of 50.

24 Procedure following decision on appeal, application or matter

 (1) When the Tribunal makes its decision on a question of law, an appeal, an application or a matter, the Tribunal must, as soon as practicable after making the decision, prepare a written statement that sets out the decision of the Tribunal on the question of law, appeal, application or matter.

 (2) The Tribunal must, as soon as practicable after preparing a written statement under subregulation (1), provide a copy of the statement to the Registrar.

 (3) The Registrar must, as soon as practicable after receiving a written statement under subregulation (2), give to the Registrar of the Australian Military Court:

 (a) a copy of the statement; and

 (b) a copy of the record of proceeding of the Tribunal on the question of law, appeal, application or matter.

Notes to the Defence Force Discipline Appeals Regulations 1957

Note 1

The Defence Force Discipline Appeals Regulations 1957 (in force under the Defence Force Discipline Appeals Act 1955) as shown in this compilation comprise Statutory Rules 1957 No. 20 amended as indicated in the Tables below.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non‑exempt legislative instruments to be registered on the Federal Register of Legislative Instruments. From 1 January 2005 the Statutory Rules series ceased to exist and was replaced with Select Legislative Instruments (SLI series). Numbering conventions remain the same, ie Year and Number.

Table of Instruments

Table of Amendments