Document ID: chunk:federal_register_of_legislation:C2008C00443:clause:2_258:p1
Version: federal_register_of_legislation:C2008C00443
Segment Type: clause
Provision Reference: sch 2 cl 258 (pt 1/2)
Character Range: 103759–106374

258  Before commencement day, trial by court martial or Defence Force magistrate discontinued

Trial by court martial

(1) Subitem (2) applies if, before the commencement day:
 (a) a court martial convicted a person of a service offence committed before the commencement day, but the court martial had not taken action under Part IV of the old DFDA; and
 (b) the court martial was dissolved under section 125 of the old DFDA before the court martial had taken such action; and
 (c) under subsection 125(6) of the old DFDA, the Registrar of Military Justice:
 (i) had not convened a new court martial for the purpose of taking such action; or
 (ii) had convened a new court martial for the purpose of taking such action, but the new court martial had not begun to hear evidence relevant to determining what action should be taken.

(2) If this subitem applies, then:
 (a) if a new court martial was convened before the commencement day—on the commencement day, the new court martial is taken to have been dissolved; and
 (b) on the commencement day, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
 (c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.

Trial by Defence Force magistrate

(3) Subitem (4) applies if, before the commencement day:
 (a) a charge of, or conviction for, a service offence that was committed by a person before the commencement day was referred to a Defence Force magistrate; and
 (b) a Defence Force magistrate:
 (i) in relation to a charge—had convicted the person of the offence, but had not taken action under Part IV of the old DFDA; or
 (ii) in relation to a conviction—had not taken action under Part IV of the old DFDA; and
 (c) the reference was terminated under section 129A of the old DFDA before action had been taken under Part IV; and
 (d) under subsection 129A(4) of the old DFDA, the Registrar of Military Justice either:
 (i) referred the conviction to another Defence Force magistrate to take action under Part IV of the old DFDA; or
 (ii) convened a court martial to take action under Part IV of the old DFDA; and
 (e) the new Defence Force magistrate or court martial had not begun to hear evidence relevant to determining what action should be taken.

(4) If this subitem applies, then:
 (a) if the conviction was referred to another Defence Force magistrate before