Armed Forces Discipline Amendment Act 1988
Armed Forces Discipline Amendment Act 1988
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Armed Forces Discipline Amendment Act 1988
Armed Forces Discipline Amendment Act 1988
Public Act |
1988 No 89 |
|
Date of assent |
29 April 1988 |
|
Contents
An Act to amend the Armed Forces Discipline Act 1971
BE IT ENACTED by the Parliament of New Zealand as follows:
1 Short Title and commencement
(1)
This Act may be cited as the Armed Forces Discipline Amendment Act 1988, and shall be read together with and deemed part of the Armed Forces Discipline Act 1971 (hereinafter referred to as the principal Act).
(2)
This Act shall come into force on the 28th day after the date on which it receives the Governor-General’s assent.
2 Interpretation
(1)
Section 2(1) of the principal Act is hereby amended by repealing the definition of the term “constable”
.
(2)
Section 2(1) of the principal Act is hereby amended by inserting, after the definition of the term “is liable”
, the following definition:
“Joint force” means a joint force established under section 5a(1)(a) of the Defence Act 1971:”.
(3)
Section 2(1) of the principal Act is hereby further amended by adding to the definition of the term “service”
the words “or any part of one or more of those services”
.
(4)
Section 2(1) of the principal Act is hereby further amended by inserting in paragraph (c) of the definition of the term “superior commander”
(as amended by section 2(3) of the Armed Forces Discipline Amendment Act 1981), after the words “appointed by”
, the words “the Chief of Defence Staff,”
.
(5)
Section 2(1) of the principal Act is hereby further amended by omitting from the definition of the term “superior officer”
the words “in the same service”
in both places where they occur.
(6)
The principal Act is hereby amended in the manner indicated in the Schedule to this Act.
3 Certain civilians closely associated with Armed Forces subject to this Act
Section 16(7) of the principal Act is hereby amended by repealing paragraphs (a), (b), and (c).
4 Offences against the civil law of New Zealand
Section 74(4) of the principal Act is hereby amended by omitting the word “rape”
, and substituting the words “sexual violation”
.
5 Effect of period spent in custody awaiting trial
The principal Act is hereby amended by inserting, after section 81, the following section:
“81a
“(1)
In determining the length of any sentence of imprisonment or detention a court-martial shall not take into account any period during which the offender was held in custody awaiting trial but shall specify any such period on the committal order.
“(2)
This section shall not apply in respect of any time spent in custody while the offender was already serving a sentence of imprisonment or detention.
“(3)
In this section, the term “custody”
means detention in civil custody or under close arrest; but does not include open arrest.”
6 Dismissal from service and reduction in rank
Section 82 of the principal Act is hereby amended by repealing subsection (4), and substituting the following subsection:
“(4)
Where a serviceman is sentenced to be dismissed from Her Majesty’s Service, or is sentenced to imprisonment involving dismissal pursuant to subsection (1) of this section, the dismissal shall not take effect until the sentence has been approved by a reviewing authority.”
7 Arrest without warrant
Section 88 of the principal Act is hereby amended by repealing subsection (4).
8 Searches to prevent smuggling, etc.
Section 96(2) of the principal Act is hereby amended by omitting the word “narcotics”
, and substituting the words “controlled drugs”
.
9 Summary punishments
Section 102 of the principal Act is hereby amended by inserting, after subsection (5), the following subsections:
“(5a)
In determining the period of any detention to be imposed an officer exercising summary powers shall not take into account any period during which the offender was held in custody awaiting to be tried summarily or dealt with summarily, but shall specify any such period on the committal order.
“(5b)
Subsection (5a) of this section shall not apply in respect of any time spent in custody while the offender was already serving a sentence of imprisonment or detention.
“(5c)
In this section, the term “custody”
means detention in civil custody or under close arrest; but does not include open arrest.”
10 Delegation of powers by commanding officers
(1)
Section 115 of the principal Act is hereby amended by inserting, after subsection (4a) (as inserted by section 13 of the Armed Forces Discipline Amendment Act 1981), the following subsection:
“(4b)
Where an officer to whom powers have been delegated under this section decides to remand an accused found guilty on any charge to a commanding officer under subsection (4a) of this section, the officer shall also,—
“(a)
Where the accused has been found guilty on any other charge arising from the same incident or series of incidents, remand the accused to the commanding officer on all other such charges:
“(b)
Where any other accused is found guilty on any charge arising from the same incident or series of incidents, remand that other accused to the commanding officer on all such charges.”
(2)
Section 115(5) of the principal Act is hereby amended by omitting the word “such”
.
11 Summary findings and punishments to be reviewed by reviewing authorities
(1)
Section 117(1) of the principal Act (as amended by section 3 of the Armed Forces Discipline Amendment Act 1981) is hereby amended by inserting in paragraph (c), after the word “servicemen”
, the words “(including servicemen serving in a joint force)”
.
(2)
Section 117(1) of the principal Act (as so amended) is hereby further amended by adding the following paragraph:
“(d)
An officer (including an officer of an allied force), not inferior in rank to the officer who tried or dealt with the offence, appointed by the Chief of Defence Staff to be a reviewing authority in respect of servicemen serving in a joint force.”
(3)
Section 117(2) of the principal Act (as substituted by section 23(1) of the Armed Forces Discipline Amendment Act 1985) is hereby amended by repealing paragraph (c), and substituting the following paragraph:
“(c)
By the Board of Review on being referred to the Board at any time by the Chief of Defence Staff, the Chief of Staff of any service, or the Defence Council.”
12 Authority to convene courts-martial
(1)
Section 119(1) of the principal Act is hereby amended by inserting, at the beginning of paragraph (b), the words “The Chief of Defence Staff,”
.
(2)
Section 119(1) is hereby further amended by inserting in paragraph (c), after the words “authorised by”
, the words “the Chief of Defence Staff,”
.
(3)
Section 119 of the principal Act is hereby amended by inserting, after subsection (1), the following subsection:
“(1a)
Nothing in subsection (1) of this section shall authorise any person other than the Governor-General to convene a general court-martial in respect of a Chief of Staff of any service.”
(4)
Section 119(2) of the principal Act is hereby amended by inserting in paragraph (b), after the words “authorised by”
, the words “the Chief of Defence Staff,”
.
13 Constitution of general courts-martial
Section 120 of the principal Act is hereby amended by repealing subsection (7), and substituting the following subsection:
“(7)
If the accused holds the rank of commander, lieutenant-colonel, wing commander, or a lower rank, at least 2 of the members of the court, other than the president, shall be holders of a rank not below that of the accused.”
14 Eligibility of officers of Commonwealth forces to be members of courts-martial
(1)
The principal Act is hereby amended by repealing section 124, and substituting the following section:
“124
“(1)
If it is necessary to convene a court-martial to try an accused at a place where, or in circumstances in which, in the opinion of the convening officer, the minimum requisite number of eligible officers cannot, having regard to the exigencies of the Armed Forces, be appointed as members of the court, any officer of a service that forms part of the naval, military, or air forces of any part of the Commonwealth for the time being declared to be serving together, or serving together and acting in combination, with any part of the Armed Forces for the purposes of section 6 of the Visiting Forces Act 1939, shall, subject to subsections (2) and (3) of this section, be eligible to be appointed as the president or as a member of the court.
“(2)
No officer shall be eligible to be appointed as a member of a court-martial under subsection (1) of this section unless—
“(a)
That officer has served as an officer for one or more periods totalling not less than 3 years; and
“(b)
The rank held by that officer is not lower than a rank corresponding to that prescribed by section 120 or section 121 of this Act as a qualification for a member of a court-martial to try the accused.
“(3)
The number of officers appointed to a court-martial under subsection (1) of this section shall not exceed the number of officers of the Armed Forces of New Zealand who are appointed to the court.”
(2)
Section 120(3) and section 121(3) of the principal Act are hereby consequentially amended by omitting in each case the words “Subject to section 124 of this Act,”
.
15 Courts-martial to sit in open court
(1)
Section 131(1) of the principal Act (as substituted by section 24(1) of the Armed Forces Discipline Amendment Act 1985) is hereby amended by inserting, after the words “of this section”
, the words “and to section 131a of this Act,”
.
(2)
Section 131(3) of the principal Act (as so substituted) is hereby amended by repealing paragraph (c), and substituting the following paragraph:
“(c)
Subject to subsection (4) of this section, an order excluding all or any persons other than the following:
“(i)
Any member of the court:
“(ii)
The Judge Advocate:
“(iii)
Any officer under instruction:
“(iv)
The prosecutor:
“(v)
The accused and any escort:
“(vi)
Any barrister or solicitor or serviceman instructed by the accused to act on the accused’s behalf:
“(vii)
The clerk of the court and the court orderly:
“(viii)
Any person who is for the time being responsible for recording the proceedings:
“(ix)
Any interpreter required in the proceedings:
“(x)
Any person expressly permitted by the convening officer or the court to be present.”
16 Special provisions in cases involving sexual violation
The principal Act is hereby amended by inserting, after section 131, the following section:
“131a
“(1)
For the purposes of this section, ‘case involving sexual violation’ means any proceedings under this Act in which a person is charged with, or to he sentenced for, an offence against—
“(a)
Section 74 of this Act, where the corresponding civil offence is—
“(i)
Sexual violation:
“(ii)
Attempted sexual violation:
“(iii)
Assault with intent to commit sexual violation:
“(iv)
An offence against section 129a of the Crimes Act 1961 (inducing sexual connection by coercion):
“(v)
An offence against section 142a of the Crimes Act 1961 (compelling indecent act with animal):
“(b)
Section 75 of this Act, where the offence is one of aiding, abetting, inciting, counselling, or procuring, or conspiring with, any person to commit any offence referred to in any of subparagraphs (i) to (v) of paragraph (a) of this subsection.
“(2)
While the complainant in a case involving sexual violation is giving oral evidence (whether in chief or under cross-examination or on re-examination), no person shall be present except the following:
“(a)
Members of the court-martial:
“(b)
The judge advocate:
“(c)
Any officer under instruction:
“(d)
The prosecutor:
“(e)
The accused and any escort:
“(f)
Any barrister or solicitor or serviceman instructed by the accused to act on the accused’s behalf:
“(g)
The clerk of the court and the court orderly:
“(h)
Any person who is for the time being responsible for recording the proceedings:
“(i)
Any interpreter required in the proceedings:
“(j)
Any accredited news media reporter:
“(k)
Any person whose presence is requested by the complainant:
“(l)
Any person expressly permitted by the convening officer or the court to be present.
“(3)
Before the complainant in a case involving sexual violation commences to give evidence, the president shall—
“(a)
Ensure that no person other than one referred to in subsection (2) of this section is present; and
“(b)
Advise the complainant of the complainant’s right to request the presence of any person under paragraph (k) of that subsection.
“(4)
Where in a case involving sexual violation the court is of the opinion that the interests of the complainant so require, it may make an order forbidding publication of any report or account giving details of the criminal acts alleged to have been performed on the complainant or of any acts that the complainant is alleged to have been compelled or induced to perform or to consent to or acquiesce in.
“(5)
Nothing in this section shall limit or affect the powers of a convening officer or court-martial to exclude any person or forbid any report or account of any evidence under section 131 of this Act.”
17 Constitution of reviewing authorities
(1)
Section 151(1) of the principal Act is hereby amended by inserting in paragraph (c), after the word “servicemen”
, the words “(including servicemen serving in a joint force)”
.
(2)
Section 151(1) of the principal Act is hereby further amended by adding the following paragraph:
“(d)
An officer (including an officer of an allied force) appointed by the Chief of Defence Staff to review convictions and sentences of courts-martial held outside New Zealand, in respect of servicemen serving in a joint force.
(3)
Section 151(2) of the principal Act is hereby amended by inserting, after the expression “paragraph (c)”
, the expression “or paragraph (d)”
.
18 Constitution and powers of reconsidering authorities
(1)
Section 166(1) of the principal Act is hereby amended by inserting in paragraph (b), after the word “servicemen”
, the words “(including servicemen serving in a joint force)”
.
(2)
Section 166(1) of the principal Act is hereby further amended by adding the following paragraph:
“(c)
An officer appointed by the Chief of Defence Staff to reconsider sentences of courts-martial in respect of servicemen serving in a joint force.”
(3)
Section 166(3) of the principal Act is hereby amended by inserting, after the words “Board of Review”
, the words “, the Chief of Defence Staff,”
.
(4)
Section 166 of the principal Act is hereby further amended by inserting, after subsection (4), the following subsections:
“(4a)
For the purpose of determining the date on which a sentence should be reconsidered, an offender shall be deemed to have been serving the sentence during the whole of any period that the offender was held in custody awaiting trial, as specified on the committal order by a court-martial under section 81a of this Act.
“(4b)
Nothing in subsection (4a) of this section shall limit or affect the provisions of section 177 or section 179 of this Act.”
(5)
Subsection (4) of this section shall not apply in respect of any sentence imposed before the commencement of this Act.
19 Effect of period spent in custody awaiting trial
(1)
The principal Act is hereby amended by inserting, after section 177, the following section:
“177a
“(1)
For the purpose of determining the date on which an offender will become eligible for remission of sentence, the offender shall be deemed to have been serving the sentence during the whole of any period that the offender was held in custody awaiting trial, as specified on the committal order by a court-martial under section 81a of this Act or by an officer exercising summary powers under section 102(5a) of this Act.
“(2)
Nothing in this section shall limit or affect the provisions of section 177 or section 179 of this Act.”
(2)
This section shall not apply in respect of any sentence imposed before the commencement of this Act.
20 Power of court-martial to commit to hospital on conviction
Section 194(1) of the principal Act (as substituted by section 38 of the Armed Forces Discipline Amendment Act 1985) is hereby amended by inserting, immediately before the words “medical practitioner”
, the word “qualified”
.
21 Fourth and Fifth Schedules amended
The principal Act is hereby amended by omitting from the Fourth Schedule (in both places where it occurs), and also from the Fifth Schedule, the note relating to sea service, and substituting in each case the following note:
“For the purposes of the application of this punishment, a person is on sea service if that person is a member of the crew of a ship that is at sea or of a ship whose commanding officer has been ordered to keep the ship at less than 48 hours’ notice for sea.”
22 Amendment to Courts Martial Appeals Act 1953
Section 1 of the Courts Martial Appeals Act 1953 is hereby amended by repealing subsection (3).
Schedule Amendments to Principal Act
Section 2(6)
| Provision amended | Amendment |
|---|---|
| Section 89(3) | By omitting the words “constable or serviceman”, and substituting the words “member of the Police”. |
| Section 89(4) | By omitting the words “constable or serviceman”, and substituting the words “member of the Police”. |
| Section 89(5) | By omitting the word “constables”, and substituting the words “members of the Police”. |
| Section 89(6) | By omitting the word “constable”, and substituting the words “member of the Police”. |
| Section 91(1) | By omitting the word “constable”, and substituting the words “member of the Police”. |
| Section 91(2) | By omitting the word “constable”in both cases where it occurs, and substituting in each case the words “member of the Police”. |
| Section 91(3) | By omitting the word “constable”, and substituting the words “member of the Police”. |
| Section 92(1) | By omitting the word “constable”, and substituting the words “member of the Police”. |
| Section 92(2) | By omitting the word “constable”, and substituting the words “member of the Police”. |
| Section 93(1) | By omitting the word “constable”, and substituting the words “member of the Police”. |
| Section 144(2) | By omitting the word “constable”in both cases where it occurs, and substituting in each case the words “member of the Police”. |
| Section 147(2)(k) | By omitting the word “constable”in both cases where it occurs, and substituting in each case the words “member of the Police”. |
This Act is administered in the Ministry of Defence.
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Versions
Armed Forces Discipline Amendment Act 1988
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