9CElection to be dealt with under the infringement scheme

9C  Election to be dealt with under the infringement scheme  (1) A prescribed defence member may elect to be dealt with under the infringement scheme in relation to a disciplinary infringement if:  (a) the member has been given an infringement notice in relation to the infringement; and  (b) the election is made within the period specified in the infringement notice. Note: If the member elects, the member will be taken to have admitted to committing the disciplinary infringement for the purpose of being dealt with under the infringement scheme: see section 9EB.  (2) If a prescribed defence member has been dealt with under the infringement scheme in relation to a disciplinary infringement (see subsection (3)), the member is not liable to be tried by a service tribunal for an offence arising out of the infringement. Note: If a prescribed defence member has been charged under this Act for an offence arising out of a disciplinary infringement, there is no jurisdiction to deal with the member under the infringement scheme in relation to the infringement: see section 9F.  (3) A prescribed defence member has been dealt with under the infringement scheme in relation to a disciplinary infringement if a discipline officer or senior discipline officer has made one of the following decisions in relation to the infringement (whether or not the decision has been substituted on review under section 9G):  (a) a decision under paragraph 9FB(1)(a) to impose a punishment;  (b) a decision under paragraph 9FB(1)(b) not to impose a punishment;  (c) a decision under paragraph 9FB(1)(c) to dismiss the infringement. Note: A discipline officer or senior discipline officer may also make a decision under paragraph 9FB(1)(d) to decline to deal with a disciplinary infringement. In this case, the defence member may be tried by a service tribunal for an offence arising out of the infringement. 9CA  Prescribed defence member  (1) A prescribed defence member is:  (a) in the Navy—a defence member who holds a rank of or below the rank of lieutenant; or  (b) in the Army—a defence member who holds a rank of or below the rank of captain; or  (c) in the Air Force—a defence member who holds a rank of or below the rank of flight lieutenant; but does not include a member covered by a determination in force under subsection (2).  (2) A service chief may, by legislative instrument, determine that any of the following is not a prescribed defence member:  (a) a specified defence member, or each member of a specified class of defence members, holding the rank of warrant officer;  (b) a specified defence member, or each member of a specified class of defence members, holding the rank of chief petty officer;  (c) a specified defence member, or each member of a specified class of defence members, holding the rank of flight sergeant. Division 3—Disciplinary infringement provisions Subdivision A—Key concepts 9D  When a disciplinary infringement is committed  (1) A disciplinary infringement is a contravention of a disciplinary infringement provision. If a prescribed defence member contravenes a disciplinary infringement provision, the member commits a disciplinary infringement.  (2) A provision in Subdivision B or C is a disciplinary infringement provision. Note: For the punishments that may be imposed on a prescribed defence member who commits a disciplinary infringement, see section 9FB.  (3) A provision in Subdivision B is a minor disciplinary infringement provision. Note: Discipline officers may only deal with contraventions of minor disciplinary infringement provisions. Senior discipline officers may deal with a contravention of any disciplinary infringement provision: see section 9F.  (4) To avoid doubt, a disciplinary infringement is not a service offence. Note: For the meaning of service offence, see subsection 3(1). Subdivision B—Minor disciplinary infringement provisions 9DA  Disciplinary infringement provision—absent from duty  (1) A prescribed defence member contravenes this subsection if the member:  (a) is required to attend for duty; and  (b) does not attend for the duty.  (2) A prescribed defence member contravenes this subsection if the member:  (a) is required to perform a duty; and  (b) ceases to perform the duty before the member is permitted to do so. 9DB  Disciplinary infringement provision—absent without leave not exceeding 3 hours   A prescribed defence member contravenes this section if the member:  (a) is absent without leave; and  (b) the absence is for a period not exceeding 3 hours. Note: A senior discipline officer may also have jurisdiction to deal with a contravention of the disciplinary infringement provision in section 9DH which covers absence without leave for a period not exceeding 24 hours. 9DC  Disciplinary infringement provision—disobeying a lawful command  (a) a person gives the member a lawful command; and  (b) the person giving the command is a superior officer; and  (c) the member disobeys the command. 9DD  Disciplinary infringement provision—failing to comply with a general order  (a) a lawful general order applies to the member; and  (b) the member does not comply with the order. 9DE  Disciplinary infringement provision—member on guard or on watch   A prescribed defence member contravenes this section if the member is on guard duty or on watch and the member:  (a) sleeps at the member’s post or on watch; or  (b) is not on duty at a post but sleeps when the member’s duty requires the member to be awake; or  (c) is intoxicated; or  (d) leaves the member’s post before being regularly relieved or otherwise absents himself or herself from a place where it is the member’s duty to be. Note: For the meaning of intoxicated, see subsection 3(1). 9DF  Disciplinary infringement provision—failure to perform duty or carry out activity  (a) the member’s office or appointment, or the requirements of the Defence Force, require the member to perform a duty or carry out an activity; and  (b) the member fails to perform the duty or carry out the activity. 9DG  Disciplinary infringement provision—prejudicial conduct  (1) A prescribed defence member contravenes this subsection if the member does an act that is likely to prejudice the discipline of, or bring discredit on, the Defence Force.  (2) A prescribed defence member contravenes this subsection if the member:  (a) omits to perform an act; and  (b) the omission is likely to prejudice the discipline of, or bring discredit on, the Defence Force. Subdivision C—Disciplinary infringement provisions only within jurisdiction of senior discipline officers 9DH  Disciplinary infringement provision—absent without leave not exceeding 24 hours   A prescribed defence member contravenes this section if the member:  (a) is absent without leave; and  (b) the absence is for a period not exceeding 24 hours. Note: A senior discipline officer may also have jurisdiction to deal with a contravention of the disciplinary infringement provision in section 9DB which covers absence without leave for a period not exceeding 3 hours. 9DI  Disciplinary infringement provision—insubordinate conduct  (a) the member engages in conduct that is threatening, insubordinate or insulting to a person; and  (b) the person is a superior officer.  (2) A prescribed defence member contravenes this subsection if:  (a) the member uses language that is threatening, insubordinate or insulting about a person; and  (b) the language is used in that person’s presence; and  (c) the person is a superior officer. 9DJ  Disciplinary infringement provision—creating a disturbance etc.  (a) the member is on service land, in a service ship, service aircraft or service vehicle or in a public place; and  (b) the member creates a disturbance or takes part in creating or continuing a disturbance. 9DK  Disciplinary infringement provision—insulting or provocative words  (a) the member is on service land, in a service ship, service aircraft or service vehicle or in a public place; and  (b) the member uses insulting or provocative words to another person. 9DL  Disciplinary infringement provision—unauthorised discharge of weapon  (c) the discharge of the weapon is not authorised. 9DM  Disciplinary infringement provision—negligent discharge of weapon  (c) the member is negligent as to that result.  (2) For the purposes of paragraph (1)(c), in deciding whether the prescribed defence member is negligent, to the extent that it is required to have regard to the standard of care of a reasonable person to make that decision, regard is to be had to the standard of care that would have been exercised by a reasonable person who:  (a) was a defence member with the same training and experience in the Defence Force or other armed force as the prescribed defence member; and  (b) was engaged in the conduct in the course of the member’s duty or in accordance with the requirements of the Defence Force, as the case may be. 9DN  Disciplinary infringement provision—intoxicated while on duty etc.  (a) the member is on duty, or reports or should report for duty; and  (b) the member is intoxicated. Note: For the meaning of intoxicated, see subsection 3(1). 9DO  Disciplinary infringement provision—driving a service vehicle for unauthorised purpose  (i) drives a service vehicle in any place, whether a public place or not; and  (ii) is not authorised to drive that vehicle; or  (b) the member uses a service vehicle for an unauthorised purpose. 9DP  Disciplinary infringement provision—driving without due care or attention etc.  (a) the member drives a service vehicle in any place, whether a public place or not; and  (b) the member does so without due care and attention or without reasonable consideration for another person in that place.  (2) A prescribed defence member contravenes this subsection if:  (a) the member drives a vehicle on service land; and  (b) the member does so without due care and attention or without reasonable consideration for another person on that land. Division 4—Election to be dealt with under the infringement scheme 9E  Infringement officer may give infringement notice  (1) If an infringement officer:  (a) believes, on reasonable grounds, that a prescribed defence member has committed a disciplinary infringement; and  (b) believes, on reasonable grounds, that the member does not have a reasonable excuse for committing the infringement; the infringement officer may give the member an infringement notice in relation to the infringement.  (2) The infringement notice must be given as soon as is reasonably practicable after the infringement officer first has reasonable grounds for believing that the member has committed the infringement.  (3) The infringement notice must:  (a) give particulars of the infringement to which the notice relates; and  (b) inform the member of the following:  (i) the member’s right to elect to be dealt with under the infringement scheme in relation to the infringement;  (ii) that, if the member so elects, the member will be taken to have admitted committing the infringement for the purposes of being dealt with under the infringement scheme in relation to the infringement;  (iii) the period within which the election must be made;  (iv) whether the member will be dealt with by a discipline officer or a senior discipline officer;  (v) the penalties that may be imposed by that kind of officer; and  (c) inform the member that:  (i) if the member has been dealt with under the infringement scheme in relation to the disciplinary infringement (see subsection 9C(3)), the member is not liable to be tried by a service tribunal for an offence arising out of the infringement; and  (ii) if the member does not so elect, the infringement officer may refer the infringement to an authorized member of the Defence Force for the purposes of section 87 so that the authorized member may determine whether there are reasonable grounds to believe that the member has committed a service offence.  (4) An infringement notice must be in accordance with a form approved by the Chief of the Defence Force. 9EA  Election may be withdrawn   A prescribed defence member may, at any time before a decision is made under section 9FB in relation to a disciplinary infringement, withdraw an election to be dealt with under the infringement scheme in relation to the disciplinary infringement. 9EB  Member is taken to have admitted the infringement only for the purpose of being dealt with under the infringement scheme   If a prescribed defence member elects to be dealt with under the infringement scheme in relation to a disciplinary infringement, the member is taken, for the purpose of being so dealt with but for no other purpose, to have admitted committing the infringement. 9EC  Consequence of no election or withdrawing election   If a prescribed defence member is given an infringement notice in relation to a disciplinary infringement and:  (a) the member does not make an election within the period specified in the notice; or  (b) the member withdraws the election; an infringement officer may refer the infringement to an authorized member of the Defence Force for the purposes of section 87 so that the authorized member may determine whether there are reasonable grounds to believe that the member has committed a service offence. Note: The election may be withdrawn at any time before a decision is made under section 9FB in relation to the disciplinary infringement: see section 9EA. Division 5—Dealing with disciplinary infringements 9F  Jurisdiction to deal with a disciplinary infringement Discipline officer  (1) A discipline officer has jurisdiction to deal with a prescribed defence member under the infringement scheme in relation to a disciplinary infringement if:  (a) the member has not been charged under this Act with an offence arising out of the infringement; and  (b) the member has elected to be dealt with under the infringement scheme in relation to the infringement (see section 9C); and  (c) the member has not withdrawn the election; and  (d) the member is of a kind of prescribed defence member specified in the officer’s instrument of appointment (see section 9H); and  (e) the member:  (i) holds the rank of officer cadet; or  (ii) if the member is a junior officer—is at least one rank junior to the discipline officer; or  (iii) otherwise—is at least 2 ranks junior to the officer; and  (f) the infringement is:  (i) a contravention of a minor disciplinary infringement provision; and  (ii) of a kind specified in the officer’s instrument of appointment (see section 9H). Senior discipline officer  (2) A senior discipline officer has jurisdiction to deal with a prescribed defence member under the infringement scheme in relation to a disciplinary infringement if:  (a) the member has not been charged under this Act with an offence arising out of the infringement; and  (b) the member has elected to be dealt with under the infringement scheme in relation to the infringement (see section 9C); and  (c) the member has not withdrawn the election; and  (d) the member is of a kind of prescribed defence member specified in the officer’s instrument of appointment (see section 9H); and  (e) the member is at least one rank junior to the officer; and  (f) the infringement is of a kind specified in the officer’s instrument of appointment (see section 9H). A discipline officer or senior discipline officer is not a service tribunal  (3) To avoid doubt, the exercise of jurisdiction by a discipline officer or senior discipline officer under this Part is not the exercise of jurisdiction by a service tribunal. Note: For the meaning of service tribunal, see subsection 3(1). 9FA  Procedure in dealing with disciplinary infringements  (1) Subject to this section, the procedure followed by a discipline officer or a senior discipline officer in dealing with a prescribed defence member under the disciplinary infringement scheme in relation to a disciplinary infringement is to be in accordance with any requirements specified by the Chief of the Defence Force.  (2) The Chief of the Defence Force may, by legislative instrument, specify requirements for the purpose of subsection (1).  (3) The prescribed defence member is not to be represented before the discipline officer or senior discipline officer.  (4) The prescribed defence member may, when the member appears before the discipline officer or senior discipline officer, call witnesses and present evidence in relation to anything relevant to the exercise of the officer’s powers under section 9FB. 9FB  Decisions that may be made by discipline officers or senior discipline officers in dealing with disciplinary infringements  (1) A discipline officer or senior discipline officer, in dealing with a prescribed defence member under the infringement scheme in relation to a disciplinary infringement, may decide:  (a) to impose a punishment on the member in accordance with subsection (2); or  (b) if the officer considers that the infringement is trivial—not to impose a punishment on the member; or  (c) if the officer considers that the member has a reasonable excuse for committing the infringement—to dismiss the infringement; or  (d) if the officer considers that the infringement is too serious to be dealt with under this Part—to decline to deal with the infringement. Note 1: If a decision under paragraph (a), (b) or (c) is made the member cannot be tried by a service tribunal for an offence arising out of the infringement, see subsections 9C(2) and (3). Note 2: If a decision is made under paragraph (d) to decline to deal with the member, the member may be tried by a service tribunal for an offence arising out of the infringement. Decision to impose a punishment  (2) The following table sets out the punishments that may be imposed by the discipline officer or senior discipline officer in relation to the disciplinary infringement.   - Disciplinary infringement punishments - Item Column 1Kind of officer Column 2Punishment - 1 Discipline officer Fine not exceeding the amount of the defence member’s pay for one dayRestriction of privileges for a period not exceeding 2 daysStoppage of leave for a period not exceeding 3 daysExtra duties for a period not exceeding 3 daysExtra drill for no more than 2 sessions of 30 minutes each per day for a period not exceeding 3 daysReprimand - 2 Senior discipline officer Fine not exceeding the amount of the defence member’s pay for 3 daysSevere reprimandRestriction of privileges for a period not exceeding 7 daysStoppage of leave for a period not exceeding 7 daysExtra duties for a period not exceeding 7 daysExtra drill for no more than 2 sessions of 30 minutes each per day for a period not exceeding 3 daysReprimand Decision to dismiss the infringement  (3) If the discipline officer or senior discipline officer decides to dismiss the disciplinary infringement, no punishment may be imposed in relation to the infringement under this Part. Decision to decline to deal with the infringement  (4) If the discipline officer or senior discipline officer decides to decline to deal with the disciplinary infringement, an infringement officer may refer the infringement to an authorized member of the Defence Force for the purposes of section 87 so that the authorized member may determine whether there are reasonable grounds to believe that the member has committed a service offence. 9FC  Commencement of punishments  (1) A decision by a discipline officer or senior discipline officer to impose a punishment takes effect:  (a) if the punishment is imposed for a period—from the start of the period specified in the decision, which must be a period starting on a day not later than 14 days after the decision is made; or  (b) in any other case—at the time the decision is made.  (2) However, if a decision by a senior discipline officer to impose a punishment is substituted by a decision of a commanding officer under subsection 9G(2), the punishment imposed by the senior discipline officer ceases to have effect at the time the substituted decision is made. Note: The substituted decision takes effect at the time specified in the substituted decision: see subsection 9G(4).  (3) This section has effect subject to subsection 9J(4).