Section 12: Limits on powers of courts-martial where accused elected court-martial trial
39.This section inserts a new section into each of the three SDAs.
Subsection (1) inserts a new section into both the Army and Air Force Acts 1955.
The new section 85A imposes a limit on the power of a court-martial to award a punishment in cases that have come before them as a result of an election. The maximum punishment that the court-martial can award is limited to the maximum that the CO could have awarded if he had dealt with the case summarily.
Subsection (3) of section 85A provides that a court-martial shall not be restricted in its sentencing power in relation to a charge before them, if the original charge on which election was made was referred back to the CO by the prosecuting authority and the fresh charge was dealt with by the CO under section 83BB. For example, if the prosecuting authority refer the original charge back to the CO because they consider that a more serious charge would be appropriate, the CO must deal with the suggested charge afresh. If it is not one that he would consider appropriate to be dealt with summarily, he may refer it directly to the prosecuting authority under section 76(1) of the Army or Air Force Act and the limitation on sentencing imposed by election would not arise.
Subsection (3) inserts a newsection 62ZA into the Naval Discipline Act 1957. This section is similar in effect to that described in subsection (1) but has an additional provision. In determining the maximum, subsection (3) ofsection 52F provides that punishments which the CO could only have awarded with the consent of a superior officer are included. This provision is not required for the Army and Air Force because consent for extended powers of punishment is granted prior to an individual being given the opportunity to elect for trial.
