Summary Authority Rules 2019

The Summary Authority Rules 2019 set out the procedural framework for summary authority proceedings under the Defence Force Discipline Act 1982. Mechanically, the Rules:

repeal the prior 2009 Rules and set their application window (old Rules repealed, these Rules apply to charges preferred on or after 9 March 2020; r 3(1)-(3));
are made under s 149 of the Defence Force Discipline Act 1982 (r 4);
define core terms used throughout the Rules, including "proceedings", "defending officer", and the operational test "reasonably available" (r 5);
prescribe what must be provided to an accused at charge time, including a written summary of rights and obligations (Schedule 1), particulars of charges, elements, statutory defences and the name and rank of the proposed prosecuting officer, plus a summary of the prosecution case (r 6(1)-(2));
set out representation rights and limits for defending officers, legal officers and self-representation, and the obligation that accused be informed before choosing self-representation (r 7);
describe general procedural or judicial-administrative duties of summary authorities, including the standard that proceedings be conducted with as little legal formality as possible consistent with fairness, the requirement to administer justice according to law, the requirement to swear witnesses and interpreters, and a duty to provide reasons for key decisions (r 8(1)-(7));
require consideration of an accused’s pre-trial or in-trial election options and provide the mechanism for dealing with charges, including referral powers and notice obligations if the summary authority elects to try the charge (r 9(1)-(5)); and
lay down detailed evidence, witness, exhibits, recording, summons and punishment-procedure rules for summary hearings (Parts 4-6, r 14-40; r 41 for recordings; r 42-45 for summons).

Commonwealth Coat of Arms of Australia

made under section 149 of the

Defence Force Discipline Act 1982

Compilation No. 1

Compilation date: 13 December 2022

Includes amendments up to: F2022L01008

Registered: 20 January 2023

About this compilation

This compilation

This is a compilation of the Summary Authority Rules 2019 that shows the text of the law as amended and in force on 13 December 2022 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary 1

1 Name of Rules.............................................1

3 Repeal..................................................1

4 Authority.................................................1

5 Definitions................................................1

Part 2—Charging and summoning accused person 3

6 Charging and summons to accused person........................3

7 Representation of accused person..............................4

Part 3—Summary authority proceedings – general provisions 5

8 General procedures for summary authority proceedings...............5

9 Dealing with a charge........................................6

10 Withdrawal of election to be heard by court martial of Defence Force magistrate referred back to summary authority by Director of Military Prosecutions 6

11 Trial by summmary authority...................................7

12 Order of witnesses and submissions.............................7

13 Consultation during trial proceedings.............................7

Part 4—Evidence in summary proceedings 8

14 Admission of evidence in summary proceedings....................8

15 Weighing of evidence in summary proceedings.....................8

16 Discretion to exclude evidence that is unfair, misleading of time wasting...8

17 Admissions...............................................9

18 Character evidence.........................................9

19 Hearsay evidence..........................................9

20 Documentary evidence......................................10

21 General and service knowledge ................................11

22 Evidence of general orders....................................11

23 Certificates of analyst in respect of prohibited drugs..................11

24 Accused person — right to silence..............................12

25 Competence of witness to give evidence..........................12

26 Compellability of witnesses — general............................12

27 Compellability of witnesses — self-incrimination.....................12

28 Witnesses — evidence by telephone or telecommunications device......13

29 Examination of witnesses.....................................13

30 Recalling of witnesses and claling of further witnesses................14

31 Witness statement — exhibit when witness not available..............14

32 Witness statement — exhibit when witness is available...............15

33 Securing witnesses on behalf of accused.........................15

34 Exclusion of witness from proceedings...........................15

35 Payment of witness expenses .................................15

Part 5—Exhibits 16

36 Exhibits..................................................16

37 Inspection and copying of exhibits before proceedings................16

38 Inspection of exhibits during proceedings.........................16

Part 6—Procedure for imposing punishment of making orders 17

39 Imposition of punishment or order in case of breach of undertaking to be of good behaviour 17

40 Submissions and evidence under Part IV of the Act ..................17

Part 7—Record of summary authority proceedings 18

41 Recording of summary authority proceedings.......................18

Part 8—General summons provisions 19

42 Summons to witness ........................................19

43 Instrument to summons a witness to attend a summary proceeding ......19

44 Personal service of summons on witness .........................19

45 Time for service of summons on witness..........................19

Part 9—Application and transitional provisions 20

Division 1—Amendments consequential on the Defence Legislation Amendment (Discipline Reform) Act 2021 20

46 Application of amendments made by the Summary Authority Amendment Rules 2022 20

Schedule 1—Rights and obligations 21

Endnotes 24

Endnote 1......................................................24

Endnote 2......................................................25

Endnote 3......................................................26

Endnote 4......................................................27

Endnote 5......................................................28

Part 1 Preliminary

Rule 1 Name of Rules

These Rules are the Summary Authority Rules 2019.

Rule 3 Repeal

(1) The Summary Authority Rules made on 22 September 2009 (the old Rules) are repealed.

(2) These Rules apply to all charges preferred on or after 9 March 2020.

(3) The old Rules continue to apply to proceedings commenced or in respect of charges that were laid prior to 9 March 2020.

Rule 4 Authority

These Rules are made pursuant to section 149 of the Defence Force Discipline Act 1982.

Rule 5 Definitions

In these Rules, unless the contrary intention appears:

Act means the Defence Force Discipline Act 1982.

defending officer means a member of the Defence Force secured to represent an accused person for proceedings.

proceedings means the following actions taken by a summary authority in accordance with the Act, rules made under the Act and regulations made under the Act:

(a) dealing with a charge;

(b) trying a charge;

(d) making an order under Part IV of the Act.

prosecuting officer means a member of the Defence Force prosecuting a charge before a summary authority.

reasonably available means an Australian Defence Force member is able to be released from their usual duties without significant impact upon the ordinary business of Defence, having regard to all of the circumstances, including the exigencies of service, preparation and travel time, and the efficient and effective use of Commonwealth resources.

regulations means the Defence Force Discipline Regulations 2018.

Part 2 Charging and summoning accused person

Rule 6 Charging an accused person

(1) At the time the accused person is charged with an offence under subsection 87(1) or 95(3) of the Act, or is served with a summons under subsection 87(3) of the Act, they are to be provided in writing:

(a) a summary of the rights and obligations of the accused substantially in accordance with Schedule 1,

(b) the charges being preferred against them,

(i) the name of the offence and the section of the Act or regulations that refers to that offence,

(ii) the elements of the alleged offence,

(iii) any statutory defence available under the Act or regulations in respect of the offence charged, and

(d) the name and rank of the proposed prosecuting officer.

(2) With the material provided under subrule (1), the accused person is to be provided in writing with a summary of the case against them, which is to include:

(a) particulars of the charge,

(b) an outline of the facts and circumstances relevant to the alleged conduct constituting the offence, and

(c) a summary of the case the prosecuting officer is intending to rely upon to prove each element of the offence charged.

(3) A charge must consist of a sufficient statement of the offence and the particulars of the act or omission constituting the offence.

(4) Once given to an accused person, a charge may only be dealt with as described in Rule 9.

(5) When a person is charged with a service offence, it is to be recorded on a charge sheet.

(6) A charge sheet may contain more than one charge.

(7) Only one person may be charged in the one charge sheet.

(8) Each summary proceedings must deal with only one accused person.

Rule 7 Representation of an accused person

(1) An accused person may request the services of a member of the Defence Force to act as a defending officer.

(2) If an accused person makes a request under subrule (1), the person whose services are requested must be permitted to defend the accused person unless the services of the person are not reasonably available.

(3) If an accused person makes a request under subrule (1) for representation by a legal officer at a hearing before a commanding officer or superior summary authority, the legal officer whose services are requested must be permitted to defend the accused if:

(a) approval is given by that commanding officer or superior summary authority; and

(b) the services of the legal officer are reasonably available.

(4) If the services of a person requested by an accused person under subrule (1) are not reasonably available, the summary authority must, with the consent of the accused person, direct a defence member to defend the accused person.

(5) An accused person may represent themselves.

(6) A summary authority must ensure that an accused person does not choose to represent themselves until the accused person has been informed of the right to representation as described in this Rule.

(7) The summary authority must ensure that the accused person is not disadvantaged because of a decision to represent themselves.

Part 3 Summary authority proceedings – general provisions

Rule 8 General procedures for summary authority proceedings

(1) A summary authority must administer justice according to law without fear or favour, affection or ill-will.

(2) Summary proceedings must be conducted with as little legal formality or technicality as possible while ensuring fairness to the accused.

(3) If a matter arises in the proceedings that is not adequately covered by the Act, these Rules or the regulations, it must be dealt with according to the interests of justice.

(4) The summary authority must ensure that any person giving evidence before summary authority proceedings takes an oath or affirmation in such manner as the person taking the oath or affirmation declares to be binding on the person’s conscience.

(5) The summary authority must ensure that any person interpreting summary authority proceedings must take an oath or affirmation in such manner as the person taking the oath or affirmation declares to be binding on the person’s conscience, that the person will, to the best of their ability, truly interpret and translate the proceedings as required.

(6) The summary authority must not require the defending officer, prosecuting officer, the accused or a witness to disclose any confidential communications related to the proceedings between or among any of them.

(7) During a summary proceedings the summary authority must give the accused person reasons for:

(a) Decisions relating to applications or objections,

(b) Decisions with respect to dealing with the charge(s),

(d) Punishments and orders, if applicable.

Rule 9 Dealing with charge

(1) The summary authority must consider the summary of the prosecution case provided under subrules 6(1) and 6(2) prior to making a decision about how to deal with the charge(s).

(2) The summary authority may request from the accused person, or their defending officer, and the prosecuting officer whether any elements or facts relevant to the elements of the offence(s) with which the accused has been charged have been agreed.

(3) The summary authority cannot compel an accused person to agree to any facts.

(4) The summary authority is required to determine how to deal with the charge(s) and is to:

(a) Confirm that the accused person has been provided with the opportunity to make an up-front election for trial pursuant to section 111C of the Act if applicable;

(b) Inquire whether the accused person has any applications or objections in respect of the charge(s);

(d) Subject to the Act, refer the charge(s) to another summary authority.

(5) If the summary authority decides to try the charge(s) the summary authority is required to give sufficient notice of the date, time and place of the hearing to the accused person, their defending officer and the prosecuting officer as is reasonable to enable the preparation for a plea in respect of the offence(s) charged.

Rule 10 Withdrawal of election to be heard by court martial or Defence Force magistrate referred back to summary authority by Director of Military Prosecutions

Where an accused person has made an up-front or in-trial election for trial by court martial or Defence Force magistrate for a non-Schedule 1A offence pursuant to section 111B or 131 of the Act, respectively, if the person withdraws their election under sections 111C(6) or 131AA(6) of the Act and in consequence the Director of Military Prosecutions refers the charge(s) back to a summary authority pursuant to sections 111C(7)(b) or 131AA(7)(b) of the Act, there is no requirement for that summary authority to offer the accused person another up-front or in-trial election.

Rule 11 Trial by summary authority

(1) Prior to asking the accused person to enter a plea, the summary authority must read the charge(s) to the accused person.

(2) The summary authority must ask the accused person to enter a plea in respect of each offence with which they have been charged.

(3) In the event the accused person enters a plea of not guilty, or does not enter a plea when called upon to do so, or pleads guilty but the summary authority is not satisfied that the accused person understands the effect of that plea, the summary authority must hear evidence called by and submissions from the prosecuting officer, and defending officer or accused person, to determine whether or not the accused person should be found guilty or not guilty of the offence(s) charged.

(4) At a hearing under subrule (3) the summary authority is required to give sufficient notice of the date, time and place of the hearing to the accused person, their defending officer and the prosecuting officer as is reasonable to enable the preparation for hearing the evidence in respect of the offence(s) charged.

(5) Prior to hearing the prosecution case in a hearing under subrule (3), the summary authority must be satisfied that all documents, including statements, notes, exhibits or records of the Australian Defence Force or other materials relevant to the offence(s) charged, in the possession of the prosecuting officer have been provided to the accused person and their defending officer.

Rule 12 Order of witnesses and submissions

(1) The prosecution case is to go first, before the defence case, and the accused person is under no obligation to give or call evidence.

(2) At the conclusion of the evidence, the prosecuting officer, and then the accused person or their defending officer may put a case summary and submissions to the summary authority.

Rule 13 Consultation during trial proceedings

(1) Subject to Rule 21, the summary authority must make a determination only on the evidence admitted during the proceeding.

(2) During the proceeding, the summary authority may seek legal advice upon matters of practice or procedure required by the Act or these Rules for the conduct of the proceedings, if the summary authority considers it is in the interests of justice to do so.

(3) The summary authority must obtain legal advice under subrule (2) in the presence or within the hearing of the accused, their defending officer and the prosecuting officer.

Part 4 Evidence in summary authority proceedings

Rule 14 Admission of evidence in summary proceedings

(1) The summary authority must only admit evidence in a proceeding that is of assistance and relevant.

(2) Any element of a charge that is not admitted by the accused is an issue for determination by the summary authority.

(3) A fact is relevant to an issue if the fact, alone or in combination with other facts, makes proof of an issue more or less probable.

(4) A fact is relevant to the credibility of a witness if the fact, alone or in combination with other facts, makes the evidence of the witness more or less credible.

(5) Evidence that is not relevant to an issue or credibility, or is otherwise excluded by the Act or these Rules, is not admissible in summary authority proceedings.

Rule 15 Weighing of evidence in summary proceedings

Once a summary authority admits evidence, it must be entered onto the record, and the summary authority must then give appropriate weight to the evidence having regard to:

(a) The probative value of the evidence,

(b) The reliability of the evidence,

(d) Where evidence is contradicted by other evidence, the relative weight having regard to all of the evidence on that issue.

Rule 16 Exclusion of evidence that is unfair, misleading or time wasting

(1) A summary authority must exclude evidence presented during a summary proceeding if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused.

(2) Any statement made by an accused person which was not voluntarily given, including when the accused person was ordered to answer a question by a superior or investigating officer, is unfairly prejudicial to an accused person and is to be excluded from admission into evidence.

(3) A summary authority may exclude evidence presented during a summary proceeding if its probative value is substantially outweighed by the danger that the evidence might:

(a) be misleading or confusing; or

(b) cause or result in undue waste of time.

Rule 17 Admissions

A party to summary authority proceedings may admit a matter of fact or a conclusion of fact even if the matter is not within the party’s personal knowledge.

Rule 18 Character evidence

(1) Evidence of the good character of the accused person is admissible in summary authority proceedings as it may relate to credibility.

(2) Evidence of the bad character of the accused person is not admissible in summary authority proceedings, unless it forms part of the evidence necessary to prove an element of the offence charged, or to rebut evidence of good character, or a matter relevant to punishment.

(3) Evidence of the bad character of a witness (other than the accused person), is admissible in summary authority proceedings as it may relate to credibility.

Example

If:

(a) an accused person is charged with the offence of making a false answer to a question on enlistment (section 57 of the Act); and

(b) the answer given was that the accused had no prior convictions; it would be a necessary part of the prosecution case to prove the prior convictions in order to show the answer was false.

Rule 19 Hearsay evidence

(1) Hearsay evidence is evidence of a statement to a witness made by a person who is not called as a witness, to prove that any fact in the statement is true.

(2) However, subrule (1) does not apply to:

(a) documentary evidence; or

(b) an admission made by an accused person.

(3) Although hearsay evidence is not admissible to prove the truth of a fact in a statement made to a witness, it may nevertheless be admissible to prove that the statement was made.

Example

On a charge of absence from duty, Sergeant Brown states that:

(a) he ordered Corporal White to check if Private Smith was on duty; and

(b) Corporal White subsequently reported to him that Private Smith was not present at his place of duty.

If Corporal White is not called as a witness, the statement to Sergeant Brown that Private Smith was not on duty is hearsay evidence and inadmissible to prove that fact.

Rule 20 Documentary evidence

(1) A document is admissible in summary authority proceedings to prove the truth of a matter stated in the document if:

(a) the document is produced from a record kept by:

(i) the Defence Force; or

(ii) a Department or agency of a government; or

(iii) an authority otherwise created by a law of a government; or

(iv) a business; and

(b) the record was kept by a person who, in the course of the person’s duties or business:

(i) is required to create, amend, maintain or store records of that kind; or

(ii) was, at the relevant time, required to create, amend, maintain or store records of that kind.

(2) Subrule (1) does not apply to a record created in the course of:

(a) an investigation conducted under Part VI of the Act;

(b) an investigation conducted by a civilian police force;

(3) In subrule (1), a “document” includes a copy of a document.

(4) Evidence to establish that a document is admissible under subrule (1) may be given by statutory declaration, unless the summary authority is satisfied that giving the evidence without the declarant being present would be unfair to the accused person.

(5) Evidence given in relation to a document admissible under subrule (1) may be contradicted or qualified by other evidence.

Rule 21 General and service knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is common knowledge in the locality in which the proceeding is being held or generally, and the summary authority is to take knowledge of that kind into account.

(2) The summary authority does not require submissions to be made or evidence to be presented about such knowledge in order for the summary authority to accept it as fact.

(3) The summary authority is to give the parties the opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of the kind referred to in subrule (1), or knowledge within the general service knowledge of the summary authority described in section 147 of the Act, if it is necessary to prevent unfair prejudice to a party.

Rule 22 Evidence of general orders

In proceedings before a summary authority, a document certified by an officer of the rank of Lieutenant Commander, Major, Squadron Leader, or above, to be a copy of a general order is evidence of that order unless the contrary is proved.

Rule 23 Certificate of analyst in respect of prohibited drugs

(1) In summary authority proceedings for an offence against section 59 of the Act, a certificate signed by an analyst setting out the result of an analysis carried out at the request of an investigating officer within the meaning of Part VI of the Act is admissible as evidence of the matters set out in the certificate.

(2) A document that purports to have been signed by an analyst for the purposes of subrule (1) is taken to have been so signed unless the contrary is proved.

Rule 24 Accused person — right to silence

(1) Evidence that an accused person has failed to answer one or more questions put by a superior or an investigating officer is not relevant and must be disregarded by the summary authority.

(2) If an accused person does not give evidence in the trial, that fact is not relevant and must be disregarded by the summary authority.

Rule 25 Competence of witness to give evidence

A person must not give evidence if the person:

(a) is unable to comprehend the summary authority proceedings or an aspect of the proceedings; or

(b) is unable to communicate to the satisfaction of the summary authority.

Rule 26 Compellability of witnesses — general

None of the following persons may be compelled to give evidence before a summary authority:

(a) an accused person;

(b) the spouse, de facto partner, parent or child of an accused person;

(d) the defending officer.

Rule 27 Compellability of witness — self-incrimination

(1) The accused may not be compelled to give evidence.

(2) Other than by express limitations described elsewhere in these Rules, the accused, or their defending officer, the prosecuting officer and the summary authority may ask questions of any witness to the proceedings.

(3) If a witness before a summary authority objects to giving evidence on the ground that the evidence may tend to incriminate the witness, or expose the witness to a penalty under an Australian law, the summary authority must not require the evidence to be given if satisfied there are reasonable grounds for the objection.

(4) However, subrule (3) does not apply if:

(a) the witness is the accused person; and

(b) the evidence is relevant to an issue before the summary authority.

Rule 28 Witnesses — evidence by telephone or telecommunications device

A summary authority may allow evidence to be given in proceedings by means of a telephone or telecommunications device. In deciding whether or not evidence of this kind will be allowed, the summary authority may consider:

(a) if the witness can be sworn;

(b) if the summary authority and the accused person can hear and examine the witness who has been sworn;

(d) the costs that would be incurred if the witness were required to be physically present;

(e) the nature of the witness’s anticipated evidence;

(f) any potential injustice to the accused or adverse impact upon the summary authority’s ability to evaluate the evidence caused by the physical absence of that witness from the hearing;

(g) the likely issues of credibility and reliability in assessing the evidence;

(h) whether allowing the witness to give evidence in the proceedings by means of a telephone or telecommunications device is opposed; and

(i) whether it is in the interests of the witness having regard to the type of evidence the witness is anticipated to provide or the characteristics of the witness.

Rule 29 Examination of witnesses

(1) A witness before a summary authority may be:

(a) examined by the person who called the witness; and

(b) cross-examined by the other party to the proceedings.

(2) Evidence that a witness has made a prior inconsistent statement is not to be adduced unless in cross-examination of that witness:

(a) the making of the prior inconsistent statement is brought to the witness’ attention; and

(b) the witness has been invited to comment on it.

(3) On the conclusion of any cross-examination, the witness may be re-examined, on matters arising out of the cross-examination, by the person who called the witness.

(4) The summary authority may allow the cross-examination or re-examination of a witness to be postponed if the summary authority believes it is in the interests of justice to do so.

(5) The summary authority may put questions to any witness.

(6) If the witness answers a question put by the summary authority, the accused person and the prosecuting officer may, if authorised by the summary authority, put questions to the witness arising from the answer.

Rule 30 Recalling of witnesses and calling of further witnesses

(1) An accused person, their defending officer or a prosecuting officer, if authorised by a summary authority, may recall a witness at any time before the summary authority makes a finding on the charge.

(2) After the witnesses for the accused person have given their evidence, the prosecuting officer may, if authorised by the summary authority, call a witness to give evidence on any matter raised by the accused person in his or her defence if the evidence to be given by the witness:

(a) could not properly have been given before the accused person presented his or her defence; or

(b) could not reasonably have been foreseen by the prosecuting officer before the accused person presented his or her defence.

(3) The summary authority may, at any time before making a finding on the charge, call or recall a witness if the summary authority is satisfied that it is in the interests of justice to do so.

(4) If a witness is called or recalled in accordance with this rule, the accused person and the prosecuting officer may, if authorised by the summary authority, put questions to the witness.

Rule 31 Witness statement — exhibit when witness not available

A summary authority may accept the evidence of a witness as a written statement if that witness is not present to give oral testimony and if the other party does not object to the tendering of the statement.

Rule 32 Witness statement — exhibit when witness available

A witness statement made by a person who is present to give oral testimony must not be tendered as an exhibit unless:

(a) the maker of the statement testifies that the contents are true; or

(b) the maker of the statement verifies by statutory declaration that the contents are true; and

Rule 33 Securing appearance of witness on behalf of accused person

The summary authority must take the steps necessary to secure the appearance at summary authority proceedings of persons reasonably required by the accused person:

(a) to appear to give evidence on the accused person’s behalf; and

(b) to produce documents (if required) on the accused person’s behalf.

Rule 34 Exclusion of witness from proceedings

(1) During summary authority proceedings, a witness must not, except by approval of the summary authority, be in the room where proceedings are being conducted before the witness is under examination.

(2) The summary authority may direct a witness giving evidence to leave the room where the hearing is taking place until the summary authority decides whether or not to allow an objection in relation to:

(a) a question; or

(b) the evidence given, or about to be given, by the witness.

(3) This rule does not require the accused person, the prosecuting officer, or a person representing the accused person, to be absent from the room where proceedings are being conducted, or to leave that room.

Rule 35 Payment of witness expenses

(1) If a person other than a member of the Defence Force is summoned to appear as a witness before a summary authority, the person must be paid the fees, and allowances for expenses, in relation to the person’s attendance that:

(a) the summary authority considers appropriate; and

(b) are in accordance with the scale in section 11 of the Public Works Committee Regulations 2016, as in force from time to time.

(2) At the request of the summary authority, the payment under subrule (1) must be performed as directed by the accused person’s commanding officer.

Part 5 Exhibits

Rule 36 Exhibits

(1) Any document or thing may be admitted by consent of the prosecuting officer and the defending officer or the accused person without requiring formal proof.

(2) A document or thing that is admitted in evidence during summary authority proceedings must be made an exhibit.

(3) However, if the summary authority is satisfied that:

(a) a copy of a document that is a correct copy has been admitted in evidence; or

(b) an extract of a document or book that is a correct extract has been admitted in evidence; or

the summary authority may make that copy, extract or parts as an exhibit in place of the original document or book.

(4) An exhibit:

(a) must be recorded by the summary authority; and

(b) forms part of the record of the summary authority proceedings.

Rule 37 Inspection and copying of exhibits before proceedings

The accused person may, before the summary authority proceedings commence, ask the prosecuting officer for permission to inspect a proposed exhibit or to make a copy of a proposed exhibit, and the prosecuting officer shall make a proposed exhibit available for inspection or make a copy of a proposed exhibit in accordance with the request.

Rule 38 Inspection of exhibits during proceedings

(1) An accused person, their defending officer or a prosecuting officer may, with permission of the summary authority, inspect or copy an exhibit during summary authority proceedings.

(2) The summary authority must ensure that proper precautions are taken for the safety of the exhibit during inspection or copying.

Part 6 Procedure for imposing punishment or making an order

Rule 39 Imposition of punishment or order in case of breach of undertaking to be of good behaviour

(1) This Rule applies to summary authority proceedings for the purpose of imposing punishment on, or making an order relating to, a convicted person in respect of a service offence for which the convicted person has given, in accordance with subsection 75(2) of the Act, an undertaking to another service tribunal to be of good behaviour for 12 months, and that convicted person is appearing before the summary authority in respect of a conviction for another service office that occurred during the 12 month period of good behaviour.

(2) After the service offence has been read to the summary authority, action must be taken in accordance with Rule 40:

(a) as if the person had been convicted by that summary authority; and

(b) in the case of subrules 40(1)(c) and (2)(b), as if the person had pleaded guilty to a charge of that offence.

Rule 40 Submissions and evidence under Part IV of the Act

(1) After the conviction of a person by a summary authority, the prosecuting officer must submit:

(a) if the convicted person is a defence member or was a defence member at the time of commission of the offence, relevant particulars of the convicted person’s service in the Defence Force;

(b) particulars of any previous convictions of the convicted person for service offences, civil court offences and the convicted person’s service record;

(d) any other matters relevant to determining action under Part IV of the Act.

(2) The convicted person may:

(a) give evidence, and call witnesses to give evidence, or tender statements or documents about their character and in mitigation of punishment;

(b) upon a plea of guilty, dispute any of the facts relied upon by the prosecution to show the nature and gravity of the offence; and

Part 7 Record of summary authority proceedings

Rule 41 Recording of summary authority proceedings

(1) Subject to the exigencies of service, in the event of a not guilty plea being entered, a summary authority is to ensure that an audio recording of proceedings is made, recording from the commencement of the hearing of evidence until the conclusion of the hearing, including the imposition of punishment, if applicable.

(2) The audio recording must be retained securely with other trial records.

(3) During summary authority proceedings, a party may, with permission of the summary authority, have a particular part of the record of proceedings played.

Part 8 General summons provisions

Rule 42 Summons to witness

A summons under subsection 138(2) of the Act must specify:

(a) the name of the witness; and

(b) if the witness has an employee identification number and rank — the employee identification number and rank of the witness; and

(d) the time and place at which the witness is required to appear.

Rule 43 Instrument to summons a witness to attend a summary proceeding

A summons that is required by subsection 138(2) of the Act to be served on a person other than the accused person must substantially follow the manner of service outlined in the Defence Force Discipline Regulations 2018 at Regulation 41, as in force from time to time, and must be issued according to the instructions outlined in that Regulation.

Rule 44 Personal service of summons on witness

(1) Personal service of a summons under this Part may be effected by serving on the witness:

(a) the original summons; or

(b) a copy of the summons.

(2) If the witness refuses to accept personal service of the summons, service may be effected by leaving the summons in the presence of the witness.

Rule 45 Time for service of summons on witness

A summons to be served on a witness under subsection 138 (2) of the Act must be served:

(a) in sufficient time for the attendance of the witness to be arranged; and

(b) subject to the exigencies of service, to allow the witness reasonable time to make arrangements for their attendance.

Part 9 Application and transitional provisions

Division 1 Amendments consequential on the Defence Legislation Amendment (Discipline Reform) Act 2021

Rule 46 Application of amendments made by the Summary Authority Amendment Rules 2022

The amendments made to these Rules by the Summary Authority Amendment Rules 2022 apply in relation to a service offence committed, or alleged to have been committed, by a person at or after the commencement of Schedule 2 to the Defence Legislation Amendment (Discipline Reform) Act 2021.

Schedule 1 Rights and obligations

(subrule 6(1)(a))

The following is the notice to be given to an accused person when they are charged with offences pursuant to the Defence Force Discipline Act 1982 (the Act), if that accused person is to appear before a summary authority in respect of those charges.

Notice to Accused

1. You have been charged with the offence(s) that are set out in full in the attached Charge Sheet. It identifies the legislation you are alleged to have breached, the elements of your alleged offences and any statutory defences available to you. The facts relevant to your alleged conduct, the particulars of the charge(s) against you and a summary of the prosecution case against you are also with this Charge Sheet. This Notice identifies your essential rights and obligations at this time.

2. You will be required to attend the location and date specified below. There you will appear before a summary authority who will determine how to dispose of these charges:

Location: [location] Date: [date] Time: [time]

Name and type of Summary Authority:

Name: [name]

Type: SUPSA/CO (select one)

You have the right to seek legal advice about the charge(s) brought against you. You are encouraged to obtain this advice prior to appearing before the summary authority.
Depending on the nature of the charge(s), a pre-trial election may be offered to you, asking whether you choose to have the charges heard by a summary authority, or referred to the Director of Military Prosecutions (the DMP) to consider taking further action on the charges. If you are offered a pre-trial election, you have the right, and are encouraged, to seek legal advice about making the election offered to you.

5. The punishments that a summary authority can impose on you for the offence(s) you have been charged with are the following:

[Elective and other punishment applicable under section 69B or 69C of the Act]

6. The summary authority will either:

(1) hear the charge(s) against you, including any applications or objections you may have to the charge(s), in order to decide whether to convict or acquit you of the charge(s), and if you are convicted, to determine your punishment; or

(2) refer the charge(s) to another summary authority for hearing; or

(3) refer the charge(s) to the DMP to consider taking further action.

The summary of the prosecution case against you with the attached Charge Sheet, will be provided to the summary authority to decide how to handle your case. But prior to the hearing time nominated above, you may agree with the summary of the prosecution case against you, or you may agree with prosecuting officer upon a different version of the facts to be provided to the summary authority.
If the summary authority proceeds to hear the charge(s), they will ask you to enter a plea of not guilty or guilty on each charge.
In some cases, during the hearing the summary authority may decide that if you were to be convicted they may require additional punishment powers to properly deal with your offending. If so, an in-trial election may be offered to you, asking you to choose whether you wish to have the charge(s) heard by the summary authority, or referred to the DMP to consider what further action to take. If you are offered an in-trial election, you have the right, and are encouraged, to seek legal advice about making the election offered to you.

11. If you are satisfied you should plead guilty to the charge(s) and your plea is accepted by the summary authority, the hearing of the charge(s) will be restricted only to issues of appropriate punishment. At such a hearing the summary authority will receive material from the prosecution relevant to punishment. The summary authority will consider your service record, any previous convictions you may have, including civilian court offences and overseas offences, honours and awards, and information about any injury, or the value of damages, or other victim impact, that was caused by the conduct alleged against you. You have the right to produce to the summary authority written and other material, such as character references, in mitigation of punishment.

12. If you enter a plea of guilty, the law requires the summary authority to take into account and make an appropriate allowance to reduce your punishment:

(1) for the fact you pleaded guilty, and especially whether your plea was given at the earliest available opportunity; and

(2) for your cooperation during the investigation and subsequent hearing.

13. If you plead not guilty, witness statements will be obtained from the prosecution witnesses and you will be entitled to receive a copy of all available witness statements and other relevant material at a reasonable time before the hearing to allow you to prepare your defence case. The summary authority will then hear the charge(s) against you and decide whether or not the prosecution has proved its case against you beyond reasonable doubt.

14. Whether you plead guilty or not guilty, you have the right to request the services of a specified member of the Defence Force to defend you at a hearing. That person must be permitted to defend you, unless their services are not reasonably available. If you cannot obtain a defending officer, you should raise this matter at the time specified in the Charge Sheet and the summary authority will assist you in finding an available person to assist you at your summary hearing.

Note: The name of this instrument was amended on registration as the instrument as lodged did not have a unique name (see subsection 10(2), Legislation Rule 2016).

Note: Endnotes

Note: Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Note: Endnote 2—Abbreviation key

ad = added or inserted	o = order(s)
am = amended	Ord = Ordinance
amdt = amendment	orig = original
c = clause(s)	par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x	/sub‑subparagraph(s)
Ch = Chapter(s)	pres = present
def = definition(s)	prev = previous
Dict = Dictionary	(prev…) = previously
disallowed = disallowed by Parliament	Pt = Part(s)
Div = Division(s)	r = regulation(s)/rule(s)
ed = editorial change	reloc = relocated
exp = expires/expired or ceases/ceased to have	renum = renumbered
effect	rep = repealed
F = Federal Register of Legislation	rs = repealed and substituted
gaz = gazette	s = section(s)/subsection(s)
LA = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given	SLI = Select Legislative Instrument
effect	SR = Statutory Rules
(md not incorp) = misdescribed amendment	Sub‑Ch = Sub‑Chapter(s)
cannot be given effect	SubPt = Subpart(s)
mod = modified/modification	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

Note: Endnote 3—Legislation history

Name	Registration	Commencement	Application, saving and transitional provisions
Summary Authority Rules 2019	11 Sept 2019 (F2019L01179)	9 Sept 2019 (r 2)
Summary Authority Amendment Rules 2022	25 July 2022 (F2022L01008)	13 Dec 2022 (s 2(1) item 1)	—

Note: Endnote 4—Amendment history

Provision affected	How affected
Part 1
r 2.....................	rep LA s 48D
Part 2
r 7.....................	am F2022L01008
Part 3
r 9.....................	am F2022L01008
Part 4
r 15....................	ed C1
r 28....................	ed C1
Part 7
r 41....................	am F2022L01008
Part 9
Part 9...................	ad F2022L01008
Division 1
r 46....................	ad F2022L01008
Schedule 1
Schedule 1................	am F2022L01008

Note: Endnote 5—Editorial changes

In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.

Paragraphs 15(a) and (b) (second occurring)

Kind of editorial change

Renumbering of provisions

Details of editorial change

There are two paragraph 15(a)s and two paragraph 15(b)s in the Summary Authority Rules 2019.

This compilation was editorially changed by renumbering the second occurring paragraph 15(a) as paragraph 15(c) and the second occurring paragraph 15(b) as paragraph 15(d).

Paragraph 28(c) (second occurring)

Kind of editorial change

Renumbering of a provision

Details of editorial change

This compilation was editorially changed by renumbering the second occurring paragraph 28(c) as paragraph 28(i).

1 Summary Authority Rules 2019

Summary Authority Rules 2019

made under section 149 of the

Defence Force Discipline Act 1982

Compilation No. 1

Compilation date: 13 December 2022

Includes amendments up to: F2022L01008

Registered: 20 January 2023

About this compilation

This compilation

This is a compilation of the Summary Authority Rules 2019 that shows the text of the law as amended and in force on 13 December 2022 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

Application, saving and transitional provisions for provisions and amendments

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary 1

1 Name of Rules.............................................1

3 Repeal..................................................1

4 Authority.................................................1

The Rules rely on several core concepts that determine who acts, what procedure applies, and which materials are admissible.

Proceedings and actors

"Proceedings" is broadly defined to mean dealing with a charge, trying a charge, imposing punishment under Part IV of the Act, or making an order under Part IV (r 5). This definition frames the scope of procedural protections.
The central actors are the summary authority, the accused, the prosecuting officer, the defending officer, and where relevant a legal officer and the Director of Military Prosecutions for referrals. The Rules specify duties for summary authorities to manage proceedings, including giving reasons for decisions (r 8(7)) and ensuring fairness with minimal formality (r 8(2)).

Information and notice

At charge time, an accused must be provided with a written summary of rights and obligations substantially in accordance with Schedule 1, full particulars of charges, the elements, any statutory defences and the name and rank of the proposed prosecuting officer, and a summary of the prosecution case (r 6(1)-(2); Schedule 1). The charge must be a sufficiently particularised statement and is to be recorded on a charge sheet (r 6(3), (5)-(6)).

Representation and "reasonably available"

An accused may request a member of the ADF to act as defending officer; that person must be permitted to defend unless their services are not "reasonably available" (r 7(1)-(2)). "Reasonably available" is defined to take into account release from duties without significant impact upon Defence, including exigencies of service, preparation and travel time, and efficient use of Commonwealth resources (r 5). Representation by a legal officer for hearings before a commanding officer or superior summary authority requires approval and reasonable availability (r 7(3)).

Evidentiary approach tailored to summary hearings

The Rules define admissibility and weight rules suited to summary proceedings: evidence must be relevant and of assistance, but once admitted, the summary authority must weigh probative value, reliability and credibility (r 14-15). There are specific exclusions: hearsay may not be used to prove truth of content except for some documentary evidence and admissions (r 19); documentary evidence from ordinary records is admissible subject to an express exception for records created in the course of certain investigations (r 20(1)-(2)); and analyst certificates for drug analysis are admissible and presumed signed unless proved otherwise (r 23).

Limits on compellability and protection against compelled self-incrimination

Certain persons cannot be compelled to give evidence including the accused, close family of the accused, the prosecuting officer and the defending officer (r 26). The accused cannot be compelled to give evidence and witnesses may object on self-incrimination grounds if the summary authority is satisfied the objection is reasonable (r 27).

Procedure, exhibits and recording

Exhibits may be admitted by consent and must be recorded as part of the trial record (r 36). The accused has rights to inspect and copy exhibits before and during proceedings (r 37-38). For not guilty pleas, audio recording of evidence is required subject to exigencies of service, and recordings are to be retained securely (r 41).

Referral and election mechanics

The Rules govern how a summary authority handles elections to be tried before another forum, including the pre-trial and in-trial election information requirements, the summary authority’s obligations when an accused withdraws an election and the DMP refers the matter back (r 9; r 10).

Interaction with other instruments and amendments

The Rules operate alongside the Defence Force Discipline Regulations 2018, the Defence Force Discipline Act 1982 and have been amended consequent to the Defence Legislation Amendment (Discipline Reform) Act 2021 via the Summary Authority Amendment Rules 2022 (r 43; r 46; Endnotes). The Rules also specify that witness fees for civilians follow the Public Works Committee Regulations 2016 scale (r 35).

These concepts structure formal rights and operational discretion: who must be notified and when; what evidence can be used and how it will be weighed; who may be compelled to attend; what representation options must be offered and under what availability test; and how charging and referral choices are handled.

Primary parties directly affected by these Rules are identified in the text and definitions.

Accused persons

Every person charged with a service offence under the Act and subject to summary authority processes is directly affected. The Rules prescribe the information to be supplied at charge time (r 6), the right to request a defending officer or legal officer representation subject to availability and approval (r 7), and procedural protections such as the right to silence being disregarded if an accused does not answer questions or chooses not to give evidence (r 24).

Defending officers and legal officers

Members of the Defence Force who act as defending officers are affected by entitlement and availability rules. A requested defending officer must be permitted to represent an accused unless not reasonably available (r 7(1)-(2)). Legal officers may represent an accused before certain authorities only if approved by the commanding officer or superior summary authority and if reasonably available (r 7(3)). The Rules also place limits on compellability of defending and prosecuting officers as witnesses (r 26).

Prosecuting officers and the Director of Military Prosecutions (DMP)

The prosecuting officer must be named at charge time (r 6(1)(d)). The Rules structure how prosecuting officers present summaries of the case (r 6(2)), call and examine witnesses (r 29), submit sentencing-related material after conviction (r 40(1)) and respond to defence evidence. The DMP is implicated through referral provisions and through Rule 10 where withdrawal of an accused’s election and a DMP referral back to a summary authority affects election obligations.

Summary authorities and commanding officers

Summary authorities have a central administrative and adjudicative role; they must administer justice according to law (r 8(1)), manage evidence (r 14-16), make determinations on how to deal with charges (r 9), give reasons for key decisions (r 8(7)), ensure oath/affirmation administration (r 8(4)-(5)), and make recording decisions (r 41). Commanding officers decide whether certain legal officers may represent an accused at hearings before them (r 7(3)(a)).

Witnesses and civilian witnesses

Civilian and non-ADF witnesses are affected by summons and attendance rules (r 42-45). If a non-ADF person is summoned, the Rules require payment of fees and allowances in accordance with the Public Works Committee Regulations 2016 scale (r 35(1)). Witness compellability is limited for certain classes, including family members of the accused and the accused themselves (r 26).

Administrative units of Defence

Units that hold records, create documents and manage custody of exhibits are affected by the Rules’ documentary evidentiary provisions (r 20), the procedures for producing, copying and inspecting proposed exhibits (r 36-38), and the requirement to maintain recordings and other trial records securely (r 41(2)).

Investigating bodies and analysts

The Rules exclude certain investigative documents from the documentary admissibility head (r 20(2)), affecting how investigation records are used in summary proceedings. Analysts who conduct drug analyses are affected by the evidentiary provision that certificates of analysts are admissible and presumed signed unless contradicted (r 23).

Regulatory and legislative bodies

The Rules cross-reference the Defence Force Discipline Regulations 2018 and the Public Works Committee Regulations 2016; therefore, those instruments are implicated for service of summons and witness fees respectively (r 43; r 35(1)).

Who pays and who decides

The Rules require payment of witness fees for non-ADF witnesses in accordance with a public scale (r 35(1)), and allow the summary authority to direct payment via the accused person’s commanding officer (r 35(2)). Decisions about trials, admissions of evidence, awarding of punishments, referrals to DMP, and whether a legal officer may represent an accused are vested in summary authorities and commanding officers under the procedural framework provided (r 7(3), r 8(1), r 9(4)).

Overall, the Rules chiefly affect accused persons and the internal ADF actors who prosecute, defend and adjudicate service offences, while also creating procedural obligations that interact with civilian witnesses and administrative units.

The Rules allocate specific duties to summary authorities, to prosecuting officers and to accused persons, and record express rights of accused persons. Key duties and rights include:

Rights of accused persons

Receipt of written notice at time of charge, including a summary of rights and obligations substantially in the form of Schedule 1, full particulars of the offence, statutory defences and the name and rank of the proposed prosecuting officer; and a summary of the prosecution case (r 6(1)-(2); Schedule 1).
The right to request a defending officer from the ADF; that person must be permitted unless not reasonably available, and the right to request a legal officer for hearings before certain authorities subject to approval and availability (r 7(1)-(4)).
The right to be informed of the right to representation before being permitted to elect self-representation, and a duty on the summary authority to ensure the accused is not disadvantaged by self-representation (r 7(5)-(7)).
The right to legal advice, and encouragement to seek it before making pre-trial or in-trial elections referenced in Schedule 1.
The right to have failure to answer questions or the decision not to give evidence disregarded by the summary authority; evidence of silence must be excluded (r 24(1)-(2)).

Duties of summary authorities

To administer justice according to law without fear or favour, and to conduct summary proceedings with as little legal formality as possible consistent with fairness (r 8(1)-(2)).
To handle matters not covered by statute according to the interests of justice (r 8(3)).
To ensure any person interpreting proceedings or giving evidence takes an oath or affirmation in a form the person declares binding on conscience (r 8(4)-(5)).
To preserve confidentiality of communications among defending officer, prosecuting officer, accused and witnesses, by not requiring disclosure of confidential communications related to proceedings (r 8(6)).
To give reasons during proceedings for decisions relating to applications, dealing with charges, findings on conviction, and punishments and orders (r 8(7)).
To determine how to deal with charges after considering the prosecution summary, to inquire as to applications or objections, to have regard to specified Act provisions, to confirm whether the accused has been offered an up-front election, and to provide reasonable notice of hearing dates when trying a charge (r 9(1)-(5)).

Duties of prosecuting officers

To provide a summary of the prosecution case to the summary authority and to the accused together with the charge at the time of charging (r 6(1)-(2); r 9(1)).
To submit particulars relevant to punishment after conviction, including service particulars and previous convictions, and if the plea was guilty, material facts showing the nature and gravity of the offence (r 40(1)(a)-(c)).

Disclosure and evidence duties

The summary authority must be satisfied that all documents, statements, notes, exhibits and other materials in the possession of the prosecuting officer have been provided to the accused and their defending officer before hearing the prosecution case (r 11(5)). This is an express pre-hearing disclosure duty.
A party may admit matters of fact or conclusions of fact even if those matters are not within their personal knowledge (r 17). The summary authority may admit documentary evidence produced from ordinary records subject to the investigatory-record exception (r 20).

Witness and exhibit management duties

To ensure accused persons may inspect or copy proposed exhibits before proceedings (r 37), and to permit inspection or copying during proceedings subject to protection of exhibit safety (r 38(1)-(2)).
To secure appearance of persons reasonably required by the accused to give evidence or produce documents (r 33).
To ensure recording of not guilty plea trials subject to exigencies of service and to retain recordings securely (r 41(1)-(2)).
To make decisions on allowing telephone or telecommunications evidence with consideration of factors listed in r 28.

Limits and protections

The Rules protect specified persons from compulsion to give evidence , the accused, immediate family of the accused, the prosecuting officer and the defending officer , and provide an objection-ground where answers may tend to incriminate under r 27 (r 26-27).
Evidence that was not voluntarily given, including answers compelled by superior or investigating officers, is to be excluded as unfairly prejudicial (r 16(2)).

Procedural rights on trials and elections

The accused must be asked to enter a plea after the charge is read (r 11(1)-(2)). If a not guilty plea is entered, the summary authority must hear evidence and ensure sufficient notice of the hearing date is given (r 11(3)-(5)). Where elections to be tried by court martial or Defence Force magistrate are withdrawn and the DMP refers charges back, the summary authority need not offer another election (r 10).

Collectively, the Rules prescribe a set of rights designed to protect accused persons in the summary forum while assigning to summary authorities duties to manage disclosure, evidence, witness attendance and recording, with specified protections against compelled self-incrimination and compelled testimony from key participants.

The Summary Authority Rules are procedural and do not themselves create substantive criminal offences or prescribe the punishments that may be imposed; punishments and orders are those provided by the Defence Force Discipline Act 1982 and are applied by summary authorities under Part IV of that Act. The Rules do, however, create enforcement mechanics, evidentiary checks and internal constraints that affect how punishments and orders are imposed, and how findings are enforced.

Mechanisms for enforcement of findings and punishments

The Rules set procedures for submissions and evidence relevant to sentencing or orders under Part IV of the Act. After conviction, the prosecuting officer must submit particulars of the convicted person’s service and prior convictions and the material facts showing the nature and gravity of the offence if the plea was guilty, and the convicted person may give mitigation evidence and address the summary authority (r 40(1)-(2)). These procedures feed into the summary authority’s exercise of sentencing powers under the Act.

Evidence exclusion as an enforcement constraint

The Rules provide exclusionary mechanisms that can prevent certain evidence from being considered at trial; exclusion can materially affect the ability to prove an offence and therefore the imposition of penalties. A summary authority must exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the accused (r 16(1)). Specifically, statements not given voluntarily, including those given after an order to answer by a superior or investigating officer, are to be excluded (r 16(2)). The summary authority may also exclude evidence if it is misleading or would cause undue waste of time (r 16(3)).

Limits on compellability and self-incrimination

The Rules prevent compulsion of the accused and specified persons (r 26), and provide that a witness may object to giving evidence on self-incrimination grounds where reasonable (r 27(3)). These limits directly affect what evidence is available to prosecute and thus influence potential penalties.

Procedural compliance and administrative enforcement

Summary authorities must observe procedural obligations such as providing reasons for decisions (r 8(7)), ensuring pre-hearing disclosure of prosecution material (r 11(5)), and following specified summons service methods (r 43). Non-compliance with these procedural duties could be raised in judicial review or appeal under the Act, potentially affecting enforceability of findings; the Rules themselves require reasons and recording to facilitate review and accountability (r 8(7); r 41).

Summons and witness attendance enforcement

The Rules specify summons content and service (r 42-45) and provide for payment of witness fees for non-ADF witnesses (r 35). The summary authority can direct steps to secure appearance of witnesses reasonably required by the accused (r 33). These provisions create administrative enforcement levers to obtain witness attendance.

Interaction with prosecutorial referral powers

The Rules guide how summary authorities may refer charges to other summary authorities or to the Director of Military Prosecutions for further action (r 9(4)(d); r 9(4)(a)-(c)). The referral system works as an enforcement design: summary authorities can dispose of matters locally or escalate to DMP where the statutory scheme contemplates different punishment ranges or forum suitability.

Recording and record-retention as an enforcement support

The requirement to audio record not guilty plea hearings subject to exigencies and retain recordings securely supports evidentiary integrity and oversight of enforcement decisions (r 41(1)-(2)).

What the Rules do not do

The Rules do not list particular penalties or change the Act’s sentencing framework. They do not create new criminal offences against service personnel or civilians. Enforcement of penalties is exercised under the Act, using the procedures the Rules set out to structure the fact-finding and sentencing processes.

In short, enforcement under the Rules is procedural rather than substantive; the Rules supply evidentiary, disclosure and administrative mechanisms that affect the ability of summary authorities to reach and sustain convictions and to impose or recommend punishments under the Defence Force Discipline Act.

The Rules are expressly made pursuant to section 149 of the Defence Force Discipline Act 1982 (r 4) and function as subordinate procedural rules within the Defence discipline legislative framework. Their operation and interpretation therefore interact with other instruments and provisions in multiple ways.

Primary statutory instrument linkages

Defence Force Discipline Act 1982: the Rules repeatedly reference Act provisions and procedural features, including charging sections (ss 87, 95), election provisions (ss 111B, 111C, 131, 131AA), sentencing and Part IV processes (ss 75(2), 108A, 109, 110), and the general knowledge provision in s 147 referenced in Rule 21. The Rules do not supplant substantive Act provisions; they supplement the Act’s procedural architecture for summary authorities.
Defence Force Discipline Regulations 2018: the Rules treat the Regulations as the operative instrument for certain service processes, notably for service of summons where Rule 43 requires substantial compliance with Regulation 41 of the Regulations (r 43). The definition of "regulations" in r 5 confirms this link.

Other rules and public instruments

Public Works Committee Regulations 2016: Rule 35 requires payment of fees and allowances to non-ADF witnesses in accordance with the scale in section 11 of the Public Works Committee Regulations 2016, as in force from time to time (r 35(1)). This creates a direct financial link to that instrument for witness expenses.

Amendments consequential on other Acts

The Rules incorporate amendments consequential on the Defence Legislation Amendment (Discipline Reform) Act 2021. Rule 46 states the Summary Authority Amendment Rules 2022 apply in relation to service offences committed at or after commencement of Schedule 2 to the Discipline Reform Act 2021. The endnotes identify the Summary Authority Amendment Rules 2022 (F2022L01008) and set out commencement and application details (r 46; Endnotes 3-4).

Evidentiary exclusions for investigative and civilian records

Rule 20 makes admissibility rules for documentary evidence, but explicitly excludes records created in the course of an investigation under Part VI of the Act, investigations conducted by civilian police, or any other investigation into the incident that gave rise to a charge (r 20(2)). That exclusion creates a clear interaction between summary authority evidence rules and the procedural regime governing investigative processes; investigative records are subject to a different admissibility regime and cannot be used to prove facts simply because they are agency-held documents.

Administrative law regime and Legislation Act links

The compilation note and endnotes reference the Legislation Act 2003 for editorial changes and compilation rules. The endnotes note editorial renumbering under the Legislation Act, and the legislative history set out in the endnotes reflects how earlier amendments and commencement specifics are to be understood in light of the Legislation Act processes.

Scope limitations relative to full judicial procedure

The Rules purposefully calibrate summary processes to be less formal than ordinary courts but to “ensure fairness” (r 8(2)). That choice affects how evidentiary standards and procedural protections interact with standard judicial doctrines. For example the hearsay rule in r 19 restricts hearsay for truth but allows it to show the statement was made; documentary evidence is admissible from official records subject to exceptions (r 20). These are procedural choices designed to align with the Act’s summary forum, while still interacting with general evidence principles embedded elsewhere.

Overlap and deference with the Act and DMP

The Rules give summary authorities power to refer charges to the DMP, and the DMP’s decisions to refer charges back affect what the summary authority must do; Rule 10 addresses the specific procedural outcome when an accused withdraws an election and the DMP refers matters back to a summary authority pursuant to statutory sections. The result is a structured interaction where the Rules implement the referral and election choices contemplated by the Act.

In practice, users of the Rules must read them together with the Defence Force Discipline Act 1982, the Defence Force Discipline Regulations 2018, the Public Works Committee Regulations 2016 for witness payments, and the related amendments made by the Discipline Reform Act 2021 and the Summary Authority Amendment Rules 2022. The Rules are a procedural layer integrating with statutory provisions that allocate substantive powers and jurisdictional choices.

The compilation and endnotes provide an explicit amendment history and dates for the Rules. The key chronological points, as recorded in the instrument, are:

Original registration and commencement: The Summary Authority Rules 2019 were registered 11 September 2019 (F2019L01179) and commenced 9 September 2019, as recorded in the legislation history (Endnote 3).
Repeal of old Rules: Rule 3(1) expressly repeals the Summary Authority Rules made on 22 September 2009, creating a clear cutover between the 2009 instrument and the 2019 Rules (r 3(1)).
Application date for new Rules: Rule 3(2) states the 2019 Rules apply to all charges preferred on or after 9 March 2020, while Rule 3(3) preserves application of the old Rules to proceedings commenced or charges laid prior to that date.
Summary Authority Amendment Rules 2022: A consequential set of amendments termed the Summary Authority Amendment Rules 2022 (F2022L01008) were registered 25 July 2022 and commenced 13 December 2022 for certain parts (Endnote 3). The amendment history endnote 4 records that a number of provisions were amended by F2022L01008, including r 7, r 9, r 41 and amendments to Part 9, r 46 and Schedule 1.
Application of 2022 amendments: Rule 46, added as part of the 2022 amendments, specifies that amendments made by the Summary Authority Amendment Rules 2022 apply in relation to a service offence committed, or alleged to have been committed, by a person at or after commencement of Schedule 2 to the Defence Legislation Amendment (Discipline Reform) Act 2021 (r 46). This links the temporal operation of the amendments to the commencement of Schedule 2 of the Discipline Reform Act.
Editorial changes: Endnote 5 records specific editorial renumberings made to resolve duplicate paragraph numbering and duplication within the instrument. The compilation notes that editorial changes were made under the Legislation Act 2003 and identifies what was changed (Endnote 5). Endnote 4 further notes certain editorial changes to r 15 and r 28 as “ed C1”.
Amendments recorded at provision level: Endnote 4’s amendment history table lists specific provisions affected and how they were amended. For example, r 7 and r 9 are marked “am F2022L01008”; Part 9 is recorded as added (ad) by F2022L01008; r 46 is recorded as added (ad) by F2022L01008; Schedule 1 is amended by F2022L01008. Part 1 r 2 is marked as repealed by the Legislation Act s 48D.
Registration note: There is a note under Schedule 1 that the name of the instrument was amended on registration because the instrument as lodged did not have a unique name (subsection 10(2), Legislation Rule 2016). This is an administrative registration detail reflected in the compilation.

Practical implications of the amendment history

The Rules’ application to particular charges depends on precise dates; practitioners must consult r 3 and r 46 alongside the Act’s commencement dates for Schedule 2 of the Discipline Reform Act to know which version applies to a given offence.
The 2022 amendments modified representation provisions (r 7), dealing-with-charge provisions (r 9), recording provisions (r 41) and added transitional application material (Part 9, r 46). Entities and practitioners operating across the amendment boundary need to check whether the relevant conduct occurred before or after the specified commencement dates.

The compilation explicitly preserves earlier procedural rules for matters initiated before the cutover dates, and records the legislative instruments that effected changes. The endnotes should be read when applying any provision to establish which textual form was in force for a particular charge or proceeding.

The compiled instrument and its endnotes do not record any cases, judicial decisions or authoritative litigation history concerning the Summary Authority Rules 2019. There are no named cases in the text, and the endnotes provide only legislative amendment and editorial history. Therefore, the Rules as compiled do not cite or summarise any court or tribunal decisions construing them.

Areas likely to generate litigation or review submissions, based on the Rules’ text

Evidence admissibility and fairness decisions: Rules 14-16 give the summary authority broad discretion to admit or exclude evidence, and to weigh probative value and reliability. Challenges could arise where parties claim that evidence was wrongly admitted or excluded, or that the summary authority failed to give appropriate weight to conflicting evidence.
Documentary evidence exclusions: Rule 20(2) excludes records created during Part VI investigations and civilian police investigations from the documentary admissibility head. Disputes may occur over whether a particular document falls within that exclusion or whether its admission was unfair; issues of whether use of investigative materials offends the Rules’ exclusion could be contested.
Compellability and self-incrimination: Rules 26 and 27 limit compellability and provide a self-incrimination objection. Litigation or review may address whether a summary authority properly assessed an objection under r 27(3), or whether compelled questioning by a superior produced statements that must be excluded under r 16(2).
Representation availability and “reasonably available” test: Rule 7 requires permitting a requested defending officer unless not “reasonably available”, a defined term that incorporates operational considerations such as exigencies of service. Disputes could arise where an accused alleges denial of a requested defender contrary to r 7. The Rules give discretion to commanding officers to approve legal officers in certain forums (r 7(3)(a)), another potential source of contention.
Disclosure and pre-hearing materials: Rule 11(5) requires the summary authority be satisfied that all relevant prosecution documents in the possession of the prosecuting officer have been provided to the accused and defending officer prior to hearing. Litigation may arise if an accused alleges inadequate disclosure undermined fairness.
Audio recording and retention: Rule 41 requires audio recording of not guilty plea hearings subject to the exigencies of service. Disputes about failure to record, or about the integrity and retention of recordings, could be grounds for review, particularly where recordings affect the ability of the accused to challenge findings.

What the Rules show about dispute zones

The Rules create discrete zones of summary authority discretion: admissibility and weight of evidence (r 14-16, r 21), interpretation of availability and operational necessity (r 5 definition of reasonably available), and balancing of fairness with the practicalities of service (r 8(2), r 41(1)). Those are precisely the kinds of contexts that tend to produce contested interpretative questions in practice.

Absence of recorded litigation in the compilation

Because the compilation does not contain reported decisions, practitioners must consult external case law databases and commentary to determine whether courts or tribunals have considered a particular rule or its interaction with the Defence Force Discipline Act. The Rules themselves bear internal record-keeping and reasons requirements that facilitate challenge, but the compilation provides no litigation history.

In sum, there is no litigation history recorded in the instrument; however the text identifies several procedural and discretionary areas where legal challenges and review proceedings are foreseeable, given their potential impact on fairness, admissibility and rights of representation.

The Rules contain specific textual details and exceptions that can cause practical pitfalls if not carefully followed. Key "gotchas" to watch for, grounded in the text:

Application timing and transitional coverage

The Rules’ application is time-dependent. Rule 3(2) states they apply to charges preferred on or after 9 March 2020, and the 2022 amendments have their own temporal application linked to Schedule 2 of the Discipline Reform Act (r 46). Practitioners must check which version of the Rules applies to a given charge; failure to do so may lead to reliance on incorrect procedural requirements.

Single accused, single charge-sheet constraints

Only one person may be charged in one charge sheet (r 6(7)) and each summary proceeding must deal with only one accused person (r 6(8)). Multi-defendant incidents therefore require separate charge sheets and separate summary proceedings. Failure to observe this may raise jurisdictional or procedural challenge points.

Representation availability test is operationally contextual

The obligation to permit a requested defending officer is tempered by the "reasonably available" test defined in r 5. The definition includes consideration of exigencies of service and efficient use of Commonwealth resources. Practically, commanders may deny a request based on operational pressures; challengeable decisions will turn on operational fact-finding and the degree of deference afforded to Defence operational judgments.

Approval requirement for legal officers

Requesting a legal officer’s assistance for representation before a commanding officer or superior summary authority requires the approval of that authority (r 7(3)(a)) as well as reasonable availability. A denial can be based on lack of approval or availability; make sure approvals are sought in time and recorded.

Disclosure obligations before hearing

Rule 11(5) requires satisfaction that all prosecution documents in the prosecuting officer’s possession have been provided to the accused and defending officer prior to hearing the prosecution case. Non-disclosure could give rise to unfairness complaints. Practitioners acting for the accused should insist on obtaining and verifying the disclosure list.

Documentary evidence exceptions

Rule 20(2) excludes records created in investigative contexts (Part VI investigations, civilian police, other inquiries). Parties sometimes assume any official record is admissible under r 20(1). The investigative exclusion is a targeted exception; use of such records to prove facts risks objection and exclusion.

Analyst certificates presumed signed

Rule 23(2) provides that a document purporting to be signed by an analyst is taken to have been so signed unless the contrary is proved. That creates a procedural hurdle for contesting authenticity; keep in mind the evidential presumption and prepare to challenge chain of custody or analyst identity where appropriate.

Statements compelled by superiors are excluded

Any statement not voluntarily given, including where the accused was ordered to answer by a superior or investigating officer, is to be excluded as unfairly prejudicial (r 16(2)). Defence practitioners should consider carefully whether any statements relied on were made after an order to answer.

Right to silence is strong in summary proceedings

Evidence of an accused’s failure to answer superior or investigating officer questions, or of the accused choosing not to give evidence at trial, is not relevant and must be disregarded (r 24). Parties or summary authorities must avoid treating silence as probative.

Limits on compelling defence and prosecuting officers as witnesses

Rule 26 excludes several persons from compellability, including the prosecuting officer and defending officer. If a party wishes to call such a person, the Rules bar compulsion; practical planning for witness evidence must account for that.

Recording requirement is subject to "exigencies of service"

Rule 41(1) obliges audio recording of not guilty plea hearings subject to the exigencies of service. In practice, the "exigencies of service" carve-out may be invoked to avoid recording; parties should seek recorded confirmation of any non-recording decision and be prepared to challenge substantive outcomes where recording would have been material.

Summons service must substantially follow a regulation

Rule 43 requires summons to substantially follow the Defence Force Discipline Regulations 2018 Regulation 41. Failure to use the correct form and service procedures can render a summons defective.

Admission of written statements where the maker is present

A witness statement made by someone present cannot be tendered as an exhibit unless the maker testifies to its truth or verifies by statutory declaration and the other party does not object (r 32). Practitioners should not assume written statements can be used automatically during a hearing if the maker is present.

Be attentive to Schedule 1 content

The Schedule 1 notice contains important procedural content including the summary of rights, elections, and explicitly lists the summary authority’s possible dispositions. At charge time the accused must be provided with a notice substantially in accordance with Schedule 1 (r 6(1)(a)). Omission or variance from that notice can be a procedural defect.

These textual specifics create multiple points where procedural missteps can affect admissibility, representation and ultimately the fairness of a summary hearing. Parties and commanders should build checklists mapped to the Rules when preparing charges, disclosure, representation requests and witness lists.

Below is a practical compliance checklist and operational guidance grounded in the Rules’ text for commanding officers, prosecuting officers, defending officers, summary authorities and supporting administrative staff.

Before and at time of charge (r 6; Schedule 1)

Prepare and provide written materials at charging: a Schedule 1-style summary of rights and obligations, the full charge sheet with name of offence and Act/regulation reference, elements of the offence, statutory defences, the name/rank of the proposed prosecuting officer, and a summary of the prosecution case setting out particulars and an outline of relevant facts (r 6(1)-(2); Schedule 1).
Ensure charge sheets contain only one accused (r 6(7)), and that each summary proceeding will deal with a single accused (r 6(8)). Record the charge on a charge sheet as required (r 6(5)).

Representation (r 7)

When an accused requests a defending officer, check availability against the "reasonably available" test in r 5; document reasons where services cannot be supplied. If the requested person is not reasonably available, obtain the accused’s consent before directing an alternate defending officer (r 7(4)).
For legal officer representation at hearings before commanding officers or superior summary authorities, secure approval from the relevant authority and confirm reasonable availability (r 7(3)).
Before allowing self-representation, ensure the accused has been informed of their representation rights and has not been disadvantaged as a result (r 7(6)-(7)).

Disclosure and pre-hearing preparations (r 11(5); r 37)

Compile and disclose all documents, statements, notes, exhibits or ADF materials in the prosecuting officer’s possession relevant to the prosecution case well before the hearing; the summary authority must be satisfied disclosure has occurred prior to hearing (r 11(5)).
Make proposed exhibits available for inspection or copying on request pre-hearing (r 37) and implement procedures for secure in-hearing inspection/copying (r 38(1)-(2)).

Managing evidence and witnesses (r 14-16; r 28-35)

Apply the relevance and assistance test when tendering evidence (r 14). Be ready to explain probative value, reliability and credibility for admitted items (r 15).
Avoid tendering hearsay to prove the truth of statements except where the Rules allow (r 19). Ensure documentary proof complies with the records-head admissibility in r 20(1) and note exclusions for investigation-created records at r 20(2).
When relying on analyst certificates in drug cases, rely on the statutory admissibility and presumption provisions, but be prepared to address chain of custody and identity if challenged (r 23).
Plan witness attendance in accordance with summons form and service requirements (r 42-45). For non-ADF witnesses, budget for fees per the Public Works Committee Regulations 2016 and ensure payments are processed as directed by the accused’s commanding officer if requested (r 35).
For witnesses to give evidence remotely, consider the factors in r 28 and document decisions to permit or deny telephone/telecommunications evidence.
Respect compellability limits; do not attempt to compel the accused, their spouse/de facto parent/child, the prosecuting officer or the defending officer to give evidence (r 26).

Trial conduct and procedure (r 8-13)

Ensure the summary authority administers justice according to law, gives reasons for core decisions, and conducts proceedings with minimal formality while ensuring fairness (r 8(1)-(3), r 8(7)).
Read charges and require pleas in accordance with r 11(1)-(2). If a not guilty plea is entered, ensure audio recording arrangements are in place subject to operational exigencies (r 41(1)-(2)).
Organise the order of evidence: prosecution goes first, accused need not give evidence, and submissions follow evidence presentation (r 12).

Exhibits and record-keeping (r 36; r 41)

Record every exhibit admitted in evidence (r 36(2)-(4)). Use copies or extracts as exhibits where the summary authority is satisfied they are correct copies rather than the original (r 36(3)).
Ensure audio recordings of proceedings with not guilty pleas are retained securely with other trial records (r 41(1)-(2)). Maintain a chain of custody and document access to recordings.

Sentencing and mitigation (r 39-40)

If a conviction triggers consideration of prior undertakings to be of good behaviour or other Part IV processes, follow the prescribed steps in r 39 and r 40. Ensure prosecuting officer prepares service particulars and previous convictions relevant to sentencing, and give the convicted person opportunity to present mitigation evidence and address the summary authority (r 40(1)-(2)).

Administrative and cross-instrument compliance

Follow the Defence Force Discipline Regulations 2018 for summons service procedures as required by r 43. Maintain familiarity with the Public Works Committee Regulations 2016 for witness fee scales referenced by r 35.
For matters spanning the 2019 and 2022 amendment dates, ascertain whether r 46 or earlier versions apply to the alleged conduct by checking commencement of Schedule 2 to the Discipline Reform Act and the relevant registration/commencement dates in the endnotes.

Record reasons and discretionary decisions

When exercising discretion to exclude evidence, to deny representation, or to allow remote evidence, document the factual and legal basis to enable review; r 8(7) requires giving reasons for applications or objections, dealing with charges, convictions and punishments.

Checklist summary

Charge preparation: Schedule 1 notice and full particulars (r 6; Schedule 1).
Representation: secure defending officer/legal officer approvals and document availability (r 7).
Disclosure: provide prosecution materials pre-hearing and verify receipt (r 11(5)).
Witness management: summons compliance, payment obligations and compellability checks (r 42-45; r 35; r 26).
Evidence handling: respect hearsay and investigative-record exclusions, use analyst certificates properly (r 19-20; r 23).
Record-keeping: audio-record not guilty plea hearings subject to exigencies and retain securely (r 41).
Sentencing process: submit required person and offence particulars and permit mitigation (r 40).

Adhering to these step-by-step processes and documenting discretionary choices will align practice with the Rules’ text and create a defensible procedural record.

Summary Authority Rules 2019

Plain English Summary

Deep Dive

What it does

Current sections

Summary Authority Rules 2019

Source text: opening excerpt

1 Summary Authority Rules 2019

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply