Document ID: chunk:federal_register_of_legislation:C2008C00443:clause:2_257:p1
Version: federal_register_of_legislation:C2008C00443
Segment Type: clause
Provision Reference: sch 2 cl 257 (pt 1/2)
Character Range: 100769–103456

257  Before commencement day, Director of Military Prosecutions requested trial by court martial or Defence Force magistrate

Trial by court martial

(1) Subitem (2) applies if, before the commencement day:
 (a) the Director of Military Prosecutions requested the Registrar of Military Justice to convene a court martial to try a charge of a service offence that was committed by a person before the commencement day; and
 (b) the Registrar of Military Justice either:
 (i) had not convened the court martial; or
 (ii) had convened the court martial, but the person had not been asked to plead at the trial.

(2) If this subitem applies, then:
 (a) if a court martial had been convened before the commencement day—on the commencement day, the court martial is taken to have been dissolved; and
 (b) on the commencement day, the Director of Military Prosecutions:
 (i) is taken to have withdrawn the request; and
 (ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; 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) the Director of Military Prosecutions requested the Registrar of Military Justice to refer a charge of a service offence that was committed by a person before the commencement day to a Defence Force magistrate for trial; and
 (b) the Registrar of Military Justice:
 (i) had not referred the charge; or
 (ii) had referred the charge, but the person had not been asked to plead at the trial.

(4) If this subitem applies, then:
 (a) if the charge had been referred to a Defence Force magistrate before the commencement day—on the commencement day, the reference is taken to have been terminated; and
 (b) on the commencement day, the Director of Military Prosecutions:
 (i) is taken to have withdrawn the request; and
 (ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; 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.

Elections for trial by court martial or Defence Force magistrate

(5) If:
 (a) before the commencement day, a person made an election under subsection 131(1) of the old DFDA to have a charge against him or her tried by a court martial or Defence Force magistrate; and
 (b) because of subitem (2) or (4), the Director of Military Prosecutions is