Defence (Amendment) Act 2007

PART 1 Preliminary

1. Short title, commencement, collective citation and construction.

1.— (1) This Act may be cited as the Defence (Amendment) Act 2007.

(2) Subject to subsection (3), this Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions, including the application of sections 4(2), 10 and 11 to different enactments specified in Schedules 2, 3 and 4 respectively and to different provisions of those enactments.

(3) This Part and sections 6 to 9, 12, 14 to 17, 31 to 34 and 65 shall come into operation on the passing of this Act.

(4) The Defence Acts 1954 to 2006 and this Act may be cited together as the Defence Acts 1954 to 2007 and shall be read together as one.

2. Definition.

2.— In this Act “Principal Act” means the Defence Act 1954.

3. Saving and transitional provisions.

3.— The saving and transitional provisions in Schedule 1 have effect.

PART 2 Amendments and Repeals

Chapter 1 Miscellaneous Amendments to Principal Act

4. Principal Act: repeals and amendments.

4.— (1) Sections 142A, 180, 188 and 215 to 224 of the Principal Act are repealed.

(2) The Principal Act is amended as indicated in Schedule 2.

5. References to judge advocate in certain Acts and instruments.

5.— Every reference in the Defence Acts 1954 to 2007 or in any instrument made under those Acts to a judge-advocate shall be read as a reference to a military judge.

6. Amendment of section 2 of Principal Act (interpretation generally).

6.— Section 2 of the Principal Act is amended—

(a) by inserting the following definitions:

“ ‘a day’s pay’ means—

(a) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is a member of the Defence Forces, the basic pay, excluding any additional pay or allowance, that is, or would be, payable to that person in respect of the day on which punishment is awarded in respect of the offence, or

(b) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is not a member of the Defence Forces but who was a member of the Defence Forces when the offence was committed (not being a person to whom paragraph (c) of this definition applies), the basic pay, excluding any additional pay or allowance, that would be payable to that person in respect of the day on which punishment is awarded in respect of the offence if he were a member of the Defence Forces on that day and his rank and service (or service in rank, if appropriate) were the same as those on the last day of his service in the Defence Forces, or

(c) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is not a member of the Defence Forces but who is, or was when the offence was committed, subject to military law as an officer pursuant to section 118(d) or (e) or as a man pursuant to section 119(c) or (d), the basic pay, excluding any additional pay or allowance, that would be payable to an officer in the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank, or to a man in the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank, as the case may be, in respect of the day on which punishment is awarded in respect of the offence;

‘assisting person’ means in relation to proceedings for an offence under Part V of this Act, subject to the consent of the member concerned, such member of the Defence Forces who is subject to military law as the person charged with the offence may choose for the purposes of providing assistance to that person as provided for in the said Part V;

‘court-martial’, when used without qualification, means a general court-martial, a limited court-martial or a summary court-martial;

‘Court-Martial Administrator’ means the Court-Martial Administrator appointed under Chapter IVA of Part V of this Act;

‘court-martial rules’ means rules made under section 240B with respect to courts-martial;

‘Director’ means the Director of Military Prosecutions appointed under Chapter IVB of Part V of this Act;

‘document’ includes—

(a) a map, plan, graph, drawing, photograph or record, or

(b) a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form;

‘intoxicant’ includes any alcohol, drug, solvent or any other substance or combination of substances;

‘military judge’ means a military judge appointed under Chapter IVC of Part V of this Act;

‘scheduled offence’, for the purposes of Part V of this Act, shall have the meaning assigned to it by section 176A;”,

(b) in the definition of “prescribed”, in paragraph (a), by substituting “(other than Chapters IV and X or in the case of any matter or thing referred to in Part V as prescribed by court-martial rules)” for “(except Chapters IV and X)”,

(c) in the definition of “service” by inserting “or any other matter” after “property”,

(d) by deleting the definition of “steal”,

(e) by substituting the following for the definition of “superior officer”:

“ ‘superior officer’ includes—

(a) when used in relation to a member of the Permanent Defence Force, an officer or non-commissioned officer of the Permanent Defence Force of equal or higher rank who is authorised, in relation to that member, by or under this Act or by custom of the service, to exercise authority over that member,

(b) when used in relation to a member of the Reserve Defence Force, an officer or non-commissioned officer of the Permanent Defence Force or of the Reserve Defence Force, of equal or higher rank, who is authorised, in relation to that member, by or under this Act or by custom of the service, to exercise authority over that member;”,

and

(f) by inserting the following after subsection (3):

“(4) In this Act, a reference to stealing shall be construed as a reference to theft within the meaning of section 2 of the Criminal Justice (Theft and Fraud Offences) Act 2001.”.

7. Amendment of section 26 of Principal Act (general regulations in relation to Defence Forces).

7.— Section 26 of the Principal Act is amended—

(a) by renumbering the existing provision as subsection (1) of that section, and

(b) by inserting the following subsection:

“(2) Regulations under this section may—

(a) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or for giving full effect to this Act,

(b) apply either generally or by reference to a specified category or categories of persons.”.

8. Amendment of section 61 of Principal Act (transfer of men of Permanent Defence Force enlisted under section 53 from one service corps to another).

8.— Section 61 of the Principal Act is amended in subsection (1) by substituting “who were enlisted under section 53 before the commencement of section 8 of the Defence (Amendment) Act 2007” for “enlisted under section 53”.

9. Amendment of section 114 of Principal Act (redress of wrongs).

9.— Section 114 of the Principal Act is amended by inserting the following after subsection (4):

“(5) This section shall not apply to—

(a) any determination made, punishment awarded or compensation order made under section 177C, 178C or 179C, or

(b) the decision of a summary court-martial under section 178G following an appeal under section 178E.”.

Chapter 2 Miscellaneous Amendments to other Acts and Instruments

10. References to ignominy in certain Act and instruments.

10.— (1) The Act specified in Part 1 of Schedule 3 is amended as indicated in that Schedule.

(2) The instruments specified in Part 2 of Schedule 3 are amended as indicated in that Schedule.

(3) Every reference in any Act or in any instrument made under any Act (other than an Act or instrument to which subsection (1) or (2) relates) to ignominy, as it applies to dismissal or discharge (however expressed) from the Defence Forces, shall be read as a reference to disgrace.

11. Miscellaneous amendments to other Acts.

11.— The Acts specified in Schedule 4 are amended as indicated in that Schedule.

PART 3 Amendments to Part V of Principal Act

Chapter 1 Liability to Military Law

12. Amendment of section 120 of Principal Act (liability to military law in respect of status).

12.— Section 120 of the Principal Act is amended—

(a) by substituting the following for subsection (2):

“(2) Where—

(a) an offence (other than that of mutiny, desertion, fraudulent enlistment or a civil offence committed by a person subject to military law while he was on active service outside the State or while he was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006) against military law triable by court-martial under this Act has been committed by any person while subject to military law, and

(b) such person has since commission of the offence ceased to be subject to military law,

that person may not be tried for the offence unless he is charged with the offence in accordance with this Act within six months beginning on the date on which he ceased to be so subject, but nothing in this subsection shall be construed as affecting the jurisdiction of a civil court where the offence is triable by that court as well as by court-martial.”,

and

(b) by substituting the following for subsection (3):

“(3) Where a person subject to military law is sentenced by a court-martial to a term of imprisonment or detention and is in service custody, this Act shall apply to the person during the term of that sentence, notwithstanding that the person is discharged or dismissed from the Defence Forces or has otherwise ceased to be subject to military law, and the person may be kept, removed, imprisoned, made to undergo detention and punished accordingly as if the person continued to be subject to military law.”.

13. Amendment of section 121 of Principal Act (modification of Part V in its application to civilians subject to military law).

13.— The following section is substituted for section 121 of the Principal Act:

“Modification of Part V in its application to civilians subject to military law.

121.— In the application of this Part to persons who do not belong to the Defence Forces, the following modifications shall be made:

(a) where an offence against military law has been committed by any person subject to military law who does not belong to the Defence Forces and the person is remanded for trial by court-martial under this Act, that person may be tried by such class of court-martial as the Director directs and, on conviction, dealt with and punished accordingly;

(b) any person subject to military law who does not belong to the Defence Forces shall, for the purpose of this Part, be deemed to be under the command of the prescribed officer, and that person, subject to the right to elect to be tried by court-martial pursuant to section 177B or 178B, as appropriate, may, with the prior consent of the Director, be dealt with summarily and punished under Chapter IV of this Part, according to whether the person is subject to military law as an officer or as a man.”.

14. Amendment of section 123 of Principal Act (time limit for trial of offences).

14.— Section 123 of the Principal Act is amended—

(a) by substituting the following for subsection (1):

“(1) Subject to subsection (1A), a person subject to military law shall not be charged with an offence (other than that of mutiny, desertion, fraudulent enlistment or a civil offence committed by a person subject to military law while he was on active service outside the State or while he was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006) against military law triable by court-martial under this Act after the end of six years beginning with the date of commission of the offence.”,

and

(b) by inserting the following after subsection (1):

“(1A) Proceedings for the summary disposal of a scheduled offence under Chapter IV of this Part may be commenced—

(a) at any time within 12 months from the date on which the offence was committed, or

(b) at any time within 12 months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify the proceedings comes to that person’s knowledge,

whichever is the later, but no such proceedings shall be commenced later than 3 years from the date on which the offence concerned was committed.

(1B) In calculating a period referred to in subsection (1) or (1A) of this section there shall not be included any period during which the person is certified by his commanding officer as being—

(a) on active service,

(b) despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006,

(c) otherwise engaged in any other essential operational duties within or outside the State,

(d) absent without leave, or

(e) unavailable for investigation due to illness.”.

Chapter 2 Offences against Military Law

15. Amendment of section 135 of Principal Act (desertion).

15.— Section 135(2)(a) of the Principal Act is amended in subparagraph (i) by inserting “(which, for the purpose of this section, includes, but is not limited to, active service or service with a contingent or as a member despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006)” after “important service”.

16. Amendment of section 142 of Principal Act (drunkenness).

16.— The following section is substituted for section 142 of the Principal Act:

“Prohibition on being under the influence of an intoxicant.

142.— (1) Every person subject to military law who, whether on duty or not on duty, due to his or her being under the influence of an intoxicant—

(a) is unfit to be entrusted with any duty that the person is or may be required to perform, or

(b) behaves in a disorderly manner or in any manner likely to bring discredit on the Defence Forces,

is guilty of an offence against military law and shall, where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or, on conviction by court-martial, be liable to suffer—

(i) in the case of an officer, dismissal from the Defence Forces or any less punishment awardable by a court-martial, or

(ii) in the case of a man, where the offence is committed on active service or on duty, imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial, or

(iii) in the case of a man, where the offence is committed otherwise than on active service or on duty, detention for a period not exceeding ninety days or any less punishment awardable by a court-martial.

(2) In any proceedings for an offence under this section, evidence given by a person subject to military law of his opinion that another such person was, at the material time, under the influence of an intoxicant shall, without more, be evidence, until the contrary is proved, of intoxication.

(3) In any proceedings for an offence under this section it shall be a defence for the person charged with the offence to prove that the intoxicant concerned was administered by, or taken in accordance with the directions of, a registered medical practitioner or a registered dentist (or both so administered and taken).”.

17. Amendment of section 150 of Principal Act (unauthorised carriage on ships or aircraft).

17.— The following section is substituted for section 150 of the Principal Act:

“Unauthorised carriage on ships or aircraft.

150.— Every person subject to military law who knowingly consigns, takes or receives on board, or allows to be carried on board, a State ship or service aircraft, or a ship or aircraft used for any purpose by the Defence Forces, persons, goods or merchandise that the person is not authorised to consign, take or receive on board is guilty of an offence against military law and shall, where a charge under this section is disposed of summarily under section 177C or 178C, as the case may be, be liable to suffer any punishment awardable thereunder or, on conviction by court-martial, be liable to suffer imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial.”.

18. Amendment of section 161 of Principal Act (offences in relation to courts-martial, etc.).

18.— Section 161 of the Principal Act is amended—

(a) in subsection (1), by substituting the following for paragraphs (b) and (c):

“(b) an officer, pursuant to section 177, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life,

(c) a commanding officer, pursuant to section 178, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life,”,

(b) in subsection (2)—

(i) by inserting the following after paragraph (e):

“(ea) who communicates with the Director, a member of his staff (including a prosecuting officer), a member of a court-martial board, a military judge or a witness in any proceedings under this Act for the purpose of influencing, directly or indirectly, any decision relating to the performance of their functions, including, as appropriate, a decision to withdraw or not to institute such proceedings or any particular charge in such proceedings or the conduct or trial of any such proceedings, or

(eb) who fails, refuses or neglects to comply with a direction of the military judge under section 195, or