188AChief Judge Advocate

188A  Chief Judge Advocate  (1) The Judge Advocate General may, by instrument in writing, appoint an officer to be the Chief Judge Advocate.  (1A) The Chief Judge Advocate holds office on a full‑time basis.  (2) The appointment is for the period, not exceeding 5 years, specified in the instrument of appointment.  (3) A Chief Judge Advocate may be reappointed for a further period or periods, but must not hold office for a total of more than 10 years.  (4) The Judge Advocate General may, by notifiable instrument, determine:  (a) the criteria that apply to the selection of an officer for appointment under this section; and  (b) the process for selecting the officer. 188AA  Terms and conditions of appointment   The Chief Judge Advocate holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Judge Advocate General. 188B  Role of the Chief Judge Advocate  (1) The Chief Judge Advocate is to provide administrative assistance to the Judge Advocate General.  (2) Subject to subsection (3), the Judge Advocate General may, by signed instrument, delegate all or any of his or her powers to the Chief Judge Advocate.  (3) The Judge Advocate General must not delegate his or her powers under any of the following provisions to the Chief Judge Advocate:  (a) subsection 127(1);  (b) subsection 154(4);  (c) subsection 196(2).  (4) The Chief Judge Advocate is, in the exercise of a delegated power or function, subject to the direction and control of the Judge Advocate General. 188C  Eligibility requirements   A person is not eligible to be the Chief Judge Advocate unless the person is:  (a) an officer holding a rank not lower than the naval rank of commodore or the rank of brigadier or air commodore; and  (b) a member of the judge advocates’ panel. 188CA  Oath or affirmation  (1) The Chief Judge Advocate must, before proceeding to discharge the duties of his or her office, make and subscribe an oath or affirmation in accordance with the form in Schedule 4.  (b) a Deputy Judge Advocate General. 188D  Resignation  (1) The Chief Judge Advocate may resign his or her office by giving to the Judge Advocate General a signed notice of resignation.  (2) The resignation takes effect on the day it is received by the Judge Advocate General or, if a later day is specified in the resignation, on that later day. 188E  Remuneration  (1) The Chief Judge Advocate is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, he or she is to be paid the remuneration that is prescribed.  (2) The Chief Judge Advocate is to be paid the allowances that are prescribed. 188EA  Termination of appointment  (1) The Judge Advocate General may terminate the appointment of the Chief Judge Advocate:  (b) if the Chief Judge Advocate is unable to perform the duties of his or her office because of physical or mental incapacity.  (2) The Judge Advocate General must terminate the appointment of the Chief Judge Advocate if:  (a) the Chief Judge Advocate:  (i) becomes bankrupt; or  (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or  (iii) compounds with his or her creditors; or  (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or  (b) the Chief Judge Advocate is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.  (3) The Chief Judge Advocate ceases to hold office if:  (a) the Chief Judge Advocate ceases to be:  (ii) a member of the Reserves who is rendering continuous full‑time service; or  (b) the Chief Judge Advocate ceases to be a member of the judge advocates’ panel. 188EB  Acting appointments   The Judge Advocate General may, by written instrument, appoint a person who is a Deputy Chief Judge Advocate to act as the Chief Judge Advocate:  (a) during a vacancy in the office of the Chief Judge Advocate (whether or not an appointment has previously been made to the office); or  (d) during any period, or during all periods, when the Chief Judge Advocate:  (i) is absent from duty or from Australia; or  (ii) is, for any reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901. Division 2A—Deputy Chief Judge Advocate 188EC  Deputy Chief Judge Advocate  (1) The Judge Advocate General may, by written instrument, appoint one or more Deputy Chief Judge Advocates.  (2) A Deputy Chief Judge Advocate holds office on a full‑time basis.  (3) A Deputy Chief Judge Advocate holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.  (4) A Deputy Chief Judge Advocate may be reappointed, but must not hold office for a total of more than 10 years.  (5) The Judge Advocate General may, by notifiable instrument, determine:  (a) the criteria that apply to the selection of a person for appointment under this section; and  (b) the process for selecting the person. 188ED  Terms and conditions of appointment   A Deputy Chief Judge Advocate holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Judge Advocate General. 188EE  Role of Deputy Chief Judge Advocate   A Deputy Chief Judge Advocate is to provide administrative assistance to the Chief Judge Advocate. 188EF  Eligibility requirements   A person is not eligible to be a Deputy Chief Judge Advocate unless the person is:  (a) an officer holding a rank not lower than the naval rank of captain or the rank of colonel or group captain; and  (b) a member of the judge advocates’ panel. 188EG  Oath or affirmation  (1) A Deputy Chief Judge Advocate must, before proceeding to discharge the duties of his or her office, make and subscribe an oath or affirmation in accordance with the form in Schedule 4.  (b) a Deputy Judge Advocate General. 188EH  Resignation  (1) A Deputy Chief Judge Advocate may resign his or her appointment by giving the Judge Advocate General a written resignation.  (2) The resignation takes effect on the day it is received by the Judge Advocate General or, if a later day is specified in the resignation, on that later day. 188EI  Remuneration  (1) A Deputy Chief Judge Advocate is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, a Deputy Chief Judge Advocate is to be paid the remuneration that is determined under Part IIIA of the Defence Act 1903.  (2) A Deputy Chief Judge Advocate is to be paid the allowances that are determined under Part IIIA of the Defence Act 1903. 188EJ  Termination of appointment  (1) The Judge Advocate General may terminate the appointment of a Deputy Chief Judge Advocate:  (b) if the Deputy Chief Judge Advocate is unable to perform the duties of his or her office because of physical or mental incapacity.  (2) The Judge Advocate General must terminate the appointment of a Deputy Chief Judge Advocate if:  (a) the Deputy Chief Judge Advocate:  (i) becomes bankrupt; or  (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or  (iii) compounds with his or her creditors; or  (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or  (b) the Deputy Chief Judge Advocate is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.  (3) A Deputy Chief Judge Advocate ceases to hold office if:  (a) the Deputy Chief Judge Advocate ceases to be:  (ii) a member of the Reserves who is rendering continuous full‑time service; or  (b) the Deputy Chief Judge Advocate ceases to be a member of the judge advocates’ panel. Division 3—The Registrar of Military Justice 188F  Registrar of Military Justice   There is to be a Registrar of Military Justice. 188FA  Functions of the Registrar  (1) The function of the Registrar is to assist the Judge Advocate General and the Chief Judge Advocate by providing administrative and management services in connection with charges and trials under this Act.  (2) In addition to his or her functions under subsection (1), the Registrar also has:  (a) the functions conferred on the Registrar by or under this Act or any other law of the Commonwealth; and  (b) such other functions as are prescribed by the regulations. 188FB  Appointment of the Registrar  (1) The Registrar is to be appointed by the Minister by written instrument.  (2) The Registrar holds office on a full‑time basis.  (3) The Registrar holds office on the terms and conditions (if any) in respect of matters not provided for by this Act that are determined by the Minister. 188FC  Qualifications for appointment   A person must not be appointed as the Registrar unless:  (b) the person is a member of the Permanent Navy, the Regular Army or the Permanent Air Force or is a member of the Reserves who is rendering continuous full‑time service; and  (c) the person holds a rank not lower than the naval rank of captain or the rank of colonel or group captain. 188FD  Tenure  (1) The Registrar holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.  (2) The Registrar is eligible for reappointment. 188FE  Resignation   The Registrar may resign his or her appointment by giving the Minister a written resignation. 188FF  Oath or affirmation  (1) The Registrar must, before proceeding to discharge the duties of his or her office, make and subscribe an oath or affirmation in accordance with the form in Schedule 4.  (b) a Deputy Judge Advocate General; or  (c) the Chief Judge Advocate. 188FG  Remuneration  (1) Subject to this section, the Registrar is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, he or she is to be paid the remuneration that is prescribed.  (2) The Registrar is to be paid the allowances that are prescribed. 188FH  Leave of absence  (1) The Registrar has the recreation leave entitlements that are determined by the Remuneration Tribunal.  (2) The Minister may grant the Registrar leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. 188FI  Outside employment   The Registrar must not:  (a) engage in practice as a legal practitioner outside the duties of his or her office; or  (b) without the approval of the Minister, engage in paid employment outside the duties of his or her office. 188FJ  Termination of appointment  (1) The Minister may terminate the appointment of the Registrar:  (b) if the Registrar is unable to perform the duties of his or her office because of physical or mental incapacity.  (2) The Minister must terminate the appointment of the Registrar if the Registrar:  (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or  (b) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or  (c) engages in practice as a legal practitioner outside the duties of his or her office; or  (d) without the approval of the Minister, engages in paid employment outside the duties of his or her office; or  (e) fails, without reasonable excuse, to comply with his or her obligations under section 188FK.  (3) The Registrar ceases to hold office if:  (a) he or she ceases to be enrolled as a legal practitioner; or  (b) he or she is no longer:  (ii) a member of the Reserves who is rendering continuous full‑time service. 188FK  Standing obligation to disclose interests  (1) The Registrar must disclose any interest that the Registrar has if that interest could conflict with the proper performance of the functions of his or her office. Disclosure is required whether or not there is any particular matter under consideration that gives rise to an actual conflict of interest.  (2) Subsection (1) applies to interests:  (a) whether direct or indirect, and whether or not pecuniary; and  (b) whether acquired before or after the person’s appointment.  (3) The disclosure must be by notice in writing given to the Minister as soon as practicable after the Registrar becomes aware of the potential for conflict of interest. 188FL  Acting appointments  (1) The Minister may appoint a person to act as the Registrar:  (a) during a vacancy in the office, whether or not an appointment has previously been made to that office; or  (b) during any period, or during all periods, when the Registrar is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of his or her office.  (3) The Minister must not appoint a person to act as the Registrar unless:  (b) the person is a member of the Permanent Navy, the Regular Army or the Permanent Air Force or is a member of the Reserves who is rendering continuous full‑time service; and  (c) the person holds a rank not lower than lieutenant commander, major or squadron leader. 188FM  Delegation   The Registrar may delegate all or any of his or her powers and functions to:  (a) a defence member who holds a rank not lower than lieutenant commander, major or squadron leader; or  (b) a person whose classification level appears in Group 5 or a higher Group of Schedule 1 to the Classification Rules under the Public Service Act 1999; or  (c) a person who is acting in a position usually occupied by a person with a classification level of the kind mentioned in paragraph (b). Part XIA—Director of Military Prosecutions Division 1—Establishment and functions of the Director of Military Prosecutions 188G  Director of Military Prosecutions   There is to be a Director of Military Prosecutions. 188GA  Functions of the Director of Military Prosecutions  (1) The Director of Military Prosecutions has the following functions:  (a) to carry on prosecutions for service offences in proceedings before a court martial or a Defence Force magistrate, whether or not instituted by the Director of Military Prosecutions;  (b) to seek the consent of the Director of Public Prosecutions as required by section 63;  (c) to make statements or give information to particular persons or to the public relating to the exercise of powers or the performance of duties or functions under this Act;  (d) to represent the service chiefs in proceedings before the Defence Force Discipline Appeal Tribunal;  (e) to do anything incidental or conducive to the performance of any of the preceding functions.  (2) In addition to his or her functions under subsection (1), the Director of Military Prosecutions also has:  (a) the functions conferred on the Director of Military Prosecutions by or under this Act or any other law of the Commonwealth; and  (b) such other functions as are prescribed by the regulations. 188GB  Appearances by and on behalf of Director of Military Prosecutions   In proceedings before a court martial or a Defence Force magistrate, the Director of Military Prosecutions:  (a) may appear in person; or  (b) if the Director of Military Prosecutions so authorises, may be represented by:  (i) if the proceedings are held in Australia—a member of the Defence Force or a legal practitioner; or  (ii) if the proceedings are held in a place outside Australia—a person referred to in subparagraph (i) or a person qualified to practise before the courts of that place. 188GC  Right of Director of Military Prosecutions and staff to practise in their official capacity   The Director of Military Prosecutions, or a person assisting the Director of Military Prosecutions who is a legal officer, is, in his or her official capacity:  (a) entitled to practise as a barrister, solicitor, or barrister and solicitor, in a federal court or in a court of a State or Territory; and  (b) entitled to all the rights and privileges of a barrister, solicitor, or barrister and solicitor, as the case may be, in that court; whether or not he or she would, but for this section, be entitled to practise in that court. 188GD  Undertakings by the Director of Military Prosecutions  (1) The Director of Military Prosecutions may, if he or she considers it appropriate to do so, give to a person an undertaking that:  (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in proceedings for a service offence; or  (b) the fact that the person discloses or produces a document or other thing in proceedings for a service offence; or  (c) any information, document or other thing that is obtained as a direct or indirect consequence of an answer that is given, a statement or disclosure that is made, or a document or other thing that is disclosed or produced in proceedings for a service offence; will not be used in evidence against the person in any other proceedings for a service offence.  (2) If the Director of Military Prosecutions gives an undertaking under subsection (1):  (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the proceedings; or  (b) the fact that the person discloses or produces a document or other thing in the proceedings; or  (c) any information, document or other thing that is obtained as mentioned in paragraph (1)(c); as the case may be, is not admissible in evidence against the person in any other proceedings for a service offence, other than proceedings in respect of the falsity of evidence given by the person.  (3) The Director of Military Prosecutions may, if he or she considers it appropriate to do so, give to a person an undertaking that the person will not be prosecuted:  (a) for a specified service offence; or  (b) in respect of specified acts or omissions that constitute, or may constitute, a service offence.  (4) If the Director of Military Prosecutions gives an undertaking to a person under subsection (3), no prosecution may be instituted against the person in respect of the specified service offence or a service offence in respect of the specified acts or omissions.  (5) An undertaking under subsection (3) may be subject to any conditions that the Director of Military Prosecutions considers appropriate. 188GE  Directions and guidelines by the Director of Military Prosecutions  (1) The Director of Military Prosecutions may, by legislative instrument, give directions, or provide guidelines, in relation to the prosecution of service offences to:  (a) a person who is an investigating officer within the meaning of Part VI; or  (b) any other person who institutes or carries on prosecutions for service offences.  (2) Without limiting the generality of subsection (1), directions or guidelines under that subsection may relate to particular cases and may specify:  (a) a service offence, being an offence a matter relating to which is to be referred to the Director of Military Prosecutions for the institution or carrying on of a prosecution for that offence; or  (b) a class of service offences, being offences matters relating to which are to be referred to the Director of Military Prosecutions for the institution or carrying on of prosecutions for those offences.  (3) The Director of Military Prosecutions must give to the Minister a copy of each direction given or guideline provided under subsection (1). Note: The annual report prepared by the Director of Military Prosecutions for a year under section 196B must include a copy of each direction given or guideline provided under this section in the year, and a copy of each direction given or guideline provided under this section as in force at the end of that year. Division 2—Administrative provisions about the Director of Military Prosecutions 188GF  Appointment of the Director of Military Prosecutions  (1) The Director of Military Prosecutions is to be appointed by the Minister by written instrument.  (2) The Director of Military Prosecutions holds office on a full‑time basis.  (3) The Director of Military Prosecutions holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister. 188GG  Qualifications for appointment   A person must not be appointed as the Director of Military Prosecutions unless:  (b) the person is a member of the Permanent Navy, the Regular Army or the Permanent Air Force or is a member of the Reserves who is rendering continuous full‑time service; and  (c) the person holds a rank not lower than the naval rank of commodore or the rank of brigadier or air commodore. 188GH  Tenure  (1) The Director of Military Prosecutions holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.  (2) The Director of Military Prosecutions is eligible for reappointment, but must not hold office for a total of more than 10 years. 188GI  Resignation   The Director of Military Prosecutions may resign his or her appointment by giving the Minister a written resignation. 188GJ  Oath or affirmation  (1) The Director of Military Prosecutions must, before proceeding to discharge the duties of his or her office, make and subscribe an oath or affirmation in accordance with the form in Schedule 4.  (b) a Deputy Judge Advocate General; or  (c) the Chief Judge Advocate. 188GK  Remuneration  (1) The Director of Military Prosecutions is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, he or she is to be paid the remuneration that is prescribed.  (2) The Director of Military Prosecutions is to be paid the allowances that are prescribed. 188GL  Leave of absence  (1) The Director of Military Prosecutions has the recreation leave entitlements that are determined by the Remuneration Tribunal.  (2) The Minister may grant the Director of Military Prosecutions leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. 188GM  Outside employment   The Director of Military Prosecutions must not:  (a) engage in practice as a legal practitioner outside the duties of his or her office; or  (b) without the approval of the Minister, engage in paid employment outside the duties of his or her office. 188GN  Termination of appointment  (1) The Minister may terminate the appointment of the Director of Military Prosecutions:  (b) if the Director is unable to perform the duties of his or her office because of physical or mental incapacity.  (2) The Minister must terminate the appointment of the Director of Military Prosecutions if the Director of Military Prosecutions:  (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or  (b) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or  (c) engages in practice as a legal practitioner outside the duties of his or her office; or  (d) without the approval of the Minister, engages in paid employment outside the duties of his or her office; or  (e) fails, without reasonable excuse, to comply with his or her obligations under section 188GO.  (3) The Director of Military Prosecutions ceases to hold office if:  (a) he or she ceases to be enrolled as a legal practitioner; or  (b) he or she is no longer:  (ii) a member of the Reserves who is rendering continuous full‑time service. 188GO  Standing obligation to disclose interests  (1) The Director of Military Prosecutions must disclose any interest that the Director of Military Prosecutions has if that interest could conflict with the proper performance of the functions of his or her office. Disclosure is required whether or not there is any particular matter under consideration that gives rise to an actual conflict of interest.  (2) Subsection (1) applies to interests:  (a) whether direct or indirect, and whether or not pecuniary; and  (b) whether acquired before or after the person’s appointment.  (3) The disclosure must be by notice in writing given to the Minister as soon as practicable after the Director of Military Prosecutions becomes aware of the potential for conflict of interest. 188GP  Acting appointments  (1) The Minister may appoint a person to act as the Director of Military Prosecutions:  (a) during a vacancy in the office, whether or not an appointment has previously been made to that office; or  (b) during any period, or during all periods, when the Director of Military Prosecutions is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of his or her office.  (3) The Minister must not appoint a person to act as the Director of Military Prosecutions unless:  (b) the person is a member of the Permanent Navy, the Regular Army or the Permanent Air Force or is a member of the Reserves who is rendering continuous full‑time service; and  (c) the person holds a rank not lower than the naval rank of commander or the rank of lieutenant‑colonel or wing commander. 188GQ  Staff   The staff necessary to assist the Director of Military Prosecutions are to be the following:  (a) defence members made available for the purpose by the appropriate service chief;  (b) persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary of the Department. Division 3—Other matters 188GR  Delegation   The Director of Military Prosecutions may delegate all or any of his or her powers to a defence member mentioned in paragraph 188GQ(a) who is a legal officer. Part XII—Miscellaneous