2008/236

Armed Forces Discipline Regulations 2008

Anand Satyanand, Governor-General

Order in Council

At Wellington this 4th day of August 2008  
Present:His Excellency the Governor-General in Council

Pursuant to section 205 of the Armed Forces Discipline Act 1971, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following regulations.

Contents

1 Title
2 Commencement
3 Interpretation
Part 1
Punishments and forfeitures
4 Reduction in rank
5 Forfeiture of seniority
6 Stay of seniority
7 Forfeiture of pay and allowances on civil conviction
8 Forfeiture of allowances on service conviction for period before conviction
9 Forfeiture of pay on service conviction for period after conviction
10 Calculation of period of forfeiture
11 Recovery of forfeitures
12 Recovery of fines, compensation, etc
13 Limitation on recovery
Part 2
Legal service fees and allowances
14 Application of this Part
15 Certified scale of fees
16 Base hourly rate of remuneration
17 Classification of counsel
18 Power to prescribe maximum number of hours
19 Remuneration of counsel
20 Remuneration of lecturers
21 Travelling expenses
22 Special allowance for travelling time
23 Other expenses
24 Claims for fees
25 Certification of claim
26 Power to approve lesser fee or expenses
27 Payment of claim
28 Power to refer claim to Solicitor-General
Part 3
Miscellaneous
29 Transitional provision
30 Revocations and saving

Regulations

1 Title

These regulations are the Armed Forces Discipline Regulations 2008.

2 Commencement

These regulations come into force on 1 July 2009.

3 Interpretation

In these regulations, unless the context otherwise requires,—
able rank, in relation to the Navy, excludes ordinary rank
Act means the Armed Forces Discipline Act 1971

allowances, in relation to a member of the Armed Forces,—
(a) means all allowances payable to that member by the Crown in respect of his or her service in the Armed Forces; but
(b) does not include any payment by way of expenses, refunds, or allowances to meet expenditure already incurred

base hourly rate of remuneration has the meaning given by regulation 16
basic pay, in relation to a member of the Armed Forces, means the daily amount payable to the member as determined by the Chief of Defence Force, but excluding allowances
certified scale of fees means the certified scale of fees prepared by the Chief of Defence Force in accordance with regulation 15
certifying officer means an officer designated by the Chief of Defence Force as a certifying officer for the purposes of these regulations

counsel—

(a) means a lawyer who is appointed—
(i) to represent a party to proceedings before the Summary Appeal Court, the Court Martial, or the Court Martial Appeal Court; or
(ii) to appear for the Crown in any Court or tribunal that makes, or will make, a determination that may affect service discipline or the operations of the Armed Forces; or
(iii) to advise a person who is being questioned by the service authorities or is being held under close arrest; or
(iv) as a member of the Discipline Committee under section 160(2)(i) of the Act; but

(b) does not include a person who is a member of the Armed Forces

leading aircraftman, in relation to the Air Force, excludes aircraftman and Air Force cadet
year means a period of 12 months starting on 1 July.

Part 1
Punishments and forfeitures

4 Reduction in rank

(1) If the Court Martial sentences an officer of any service to reduction in rank, it may reduce the officer's rank to any lower commissioned rank in that service.

(2) If the Court Martial sentences a rating to reduction in rank or a disciplinary officer imposes a punishment of reduction in rank on a rating, the Court Martial or disciplinary officer may reduce the rating's rank—
(a) to any lower rank, not below able rank, in the rating's present branch; or
(b) in the case of the Naval Police Branch or the Physical Training Branch, to any lower rank, not below able rank, in the rating's former branch for which the rating is qualified.

(3) If the Court Martial sentences a soldier to reduction in rank, or a disciplinary officer imposes a punishment of reduction in rank on a soldier, the Court Martial or disciplinary officer may reduce the soldier's rank to any lower rank, not below private, in the Army.
(4) If the Court Martial sentences an airman to reduction in rank, or a disciplinary officer imposes a punishment of reduction in rank on an airman, the Court Martial or disciplinary officer may reduce the airman's rank to any lower rank, not below leading aircraftman, in the Air Force.

5 Forfeiture of seniority

If the Court Martial sentences a member of the Armed Forces to forfeiture of seniority, it may forfeit all or part of the member's seniority in the rank that the member holds on the day on which the sentence is passed and the member must take rank and precedence in his or her service accordingly.

6 Stay of seniority

(1) If the Court Martial sentences a member of the Armed Forces to a stay of seniority, the member must remain in the rank and retain the amount of seniority that the member has on the day on which the sentence is passed for the period, not exceeding 2 years, as the Court Martial specifies.
(2) If a disciplinary officer imposes a punishment of a stay of seniority on a member of the Armed Forces, the member must remain in the rank and retain the amount of seniority that the member has on the day on which the punishment is imposed for the period, not exceeding 1 year, as the disciplinary officer specifies.

7 Forfeiture of pay and allowances on civil conviction

If a member of the Armed Forces is convicted of an offence by a civil court, the member forfeits—

(a) 1 day's basic pay and allowances for—
(i) each day after the conviction during which the member is in civil custody in respect of the offence; and
(ii) each day after the conviction during which the member is in close arrest in respect of the offence; and

(b) 1 day's allowances for each day during which the member is suspended from duty in respect of the offence, whether before or after the conviction, or both.

8 Forfeiture of allowances on service conviction for period before conviction

(1) If a member of the Armed Forces is convicted of an offence by the Court Martial or is found guilty of an offence by a disciplinary officer, the member forfeits 1 day's allowances for each day during which the member is suspended from duty in respect of the offence before the conviction or the finding of guilty.
(2) In any case to which subclause (1) applies, the Court Martial or the disciplinary officer who found the member guilty may cancel the forfeiture in whole or in part.

9 Forfeiture of pay on service conviction for period after conviction

(1) If a member of the Armed Forces is convicted of an offence by the Court Martial and is sentenced to imprisonment, or to dismissal from Her Majesty's Service, the member forfeits—
(a) 1 day's basic pay and allowances for each day during which the member is in civil custody or service custody in respect of the offence after the conviction; and
(b) 1 day's allowances for each day during which the member is suspended from duty in respect of the offence after the conviction.

(2) If a member of the Armed Forces is convicted of an offence by the Court Martial or is found guilty by a disciplinary officer and is sentenced to detention, the member must forfeit 1 half-day's basic pay for each day during which the member is in civil or service custody in respect of the offence after the conviction.

10 Calculation of period of forfeiture

(1) In calculating the number of days a member of the Armed Forces is in custody, in close arrest, or is suspended from duty for the purposes of regulations 7 to 9 and 11, if that period (whether a continuous period or a number of separate periods of custody, close arrest, or suspension), calculated in hours,—
(a) is less than 24 hours, it must be counted as a day; or
(b) is more than 24 hours, each multiple of 24 hours must be counted as a day and any remaining number of hours must be counted as a further day.

(2) However, no period in respect of which a member of the Armed Forces would not otherwise have been entitled to pay and allowances may be counted in calculating the number of days the member is in custody, in close arrest, or is suspended from duty.

11 Recovery of forfeitures

(1) If a member of the Armed Forces is to forfeit pay and allowances under regulations 7 to 9, the pay and allowances that are to be forfeited may be recovered from the member by the Crown by deduction from, or withholding or delaying payment of, any pay and allowances or other money due, owing, or payable to the member by the Crown in relation to his or her service in the Armed Forces.
(2) Subclause (1) does not limit any other mode of recovery.

12 Recovery of fines, compensation, etc

(1) This regulation applies if a person subject to the Act—
(a) has been convicted by the Court Martial or found guilty by a disciplinary officer of an offence against the Act; and
(b) has been fined or ordered to pay compensation or make some other payment for which the person may be liable under the Act.

(2) If this regulation applies, the fine, compensation, or other payment may be recovered by deduction from, or withholding or delaying payment of, any money due, owing, or payable to the person by the Crown in relation to his or her service in the Armed Forces.
(3) However, no deduction from, or withholding or delaying payment of, any money under subclause (2) may exceed the sum that would allow the person to draw a minimum of 20% of his or her basic pay per day.

13 Limitation on recovery

Despite regulations 11 and 12, no deductions from, or withholding or delaying payment of, any retiring allowance or other money granted or payable under the Government Superannuation Fund Act 1956 to a person subject to the Act or on the death of a person subject to the Act may be made under either of those regulations.

Part 2
Legal service fees and allowances

14 Application of this Part

This Part applies to the following work, done on or after 1 July 2009:
(a) all work done by counsel in relation to advising a person who is being questioned by the service authorities or who is being held under close arrest; and
(b) all work done by counsel in relation to preparing for, or appearing in, proceedings before the Summary Appeal Court, the Court Martial, or the Court Martial Appeal Court; and
(c) all work done by counsel for the Crown in relation to preparing for, or appearing in, proceedings before a court or tribunal where the determination in the proceedings may affect service discipline or the operation of the Armed Forces; and
(d) all work done by counsel appointed to assist a court of inquiry; and
(e) all work done by counsel appointed as a member of the Discipline Committee; and
(f) all work done by a person (other than a member of the Armed Forces) engaged from time to time to lecture about any matter arising out of or relating to service law.

15 Certified scale of fees

(1) The Chief of Defence Force must, before the start of each year, prepare and certify a scale of the fees, travelling expenses, and allowances payable in accordance with regulations 16, 18 to 20, 21(1)(b) and (c), and 22 in respect of work to which this Part applies.
(2) A copy of the scale must be given to each certifying officer.

16 Base hourly rate of remuneration

For the purposes of these regulations, the base hourly rate of remuneration for work done in any year is the same as the senior hourly rate of remuneration determined by the Solicitor-General under regulation 4 of the Crown Solicitors Regulations 1994 for work done in that year.

17 Classification of counsel

(1) A certifying officer may classify counsel as senior counsel if—
(a) they have practised at the bar for a continuous period of more than 7 years; and

(b) their experience includes appearances—
(i) in criminal trials and litigation involving complex legal issues; or
(ii) as lead counsel in more than 10 trials in the Court Martial; or
(iii) as lead counsel in proceedings before courts of inquiry, the Summary Appeal Court, or the Court Martial Appeal Court.

(2) A certifying officer may classify counsel as intermediate counsel if—
(a) they have practised at the bar for a continuous period of more than 4 years; and

(b) their experience includes appearances—
(i) in criminal trials; or
(ii) as lead counsel in more than 5 trials in the Court Martial; or
(iii) as lead counsel in proceedings before courts of inquiry, the Summary Appeal Court, or the Court Martial Appeal Court.

(3) A certifying officer must classify as junior counsel all counsel who are not classified under subclause (1) or (2).
(4) In subclauses (1) and (2), references to appearances in trials before the Court Martial and appearances in proceedings before the Court Martial Appeal Court include appearances in trials by court-martial before the commencement of the Court Martial Act 2007 and appearances before the Courts Martial Appeal Court before the commencement of the Court Martial Appeals Amendment Act 2007.

18 Power to prescribe maximum number of hours

(1) The Chief of Defence Force may prescribe the maximum number of hours for which fees may be claimed under these regulations for any particular work or class of work.
(2) Subclause (1) is subject to regulation 28.

19 Remuneration of counsel

(1) The remuneration payable to counsel for work to which this Part applies is at the following rate per hour:
(a) senior counsel, the base hourly rate of remuneration:
(b) intermediate counsel, 80% of the base hourly rate of remuneration:
(c) junior counsel, 65% of the base hourly rate of remuneration.

(2) However, remuneration payable to counsel in respect of appearances before the Court Martial is at the rate prescribed for that counsel in subclause (1) multiplied by 4 for each half-day or part of a half-day.

20 Remuneration of lecturers

The remuneration payable to a lecturer for work to which this Part applies is at the base hourly rate of remuneration for each day or part of a day.

21 Travelling expenses

(1) A person who is required to travel more than 5 kilometres from his or her usual place of business in connection with work to which this Part applies is allowed the following travelling expenses:
(a) fares paid for public transport:
(b) if a private motor vehicle is used, a mileage allowance payable at the rate of the mileage allowance approved under section 4(4) of the Fees and Travelling Allowances Act 1951 as payable to a member of a statutory Board who uses a private vehicle when travelling in the service of the Board:
(c) a subsistence allowance for each day or part of a day the person is away from his or her usual place of residence, payable at the rate of the subsistence allowance approved under section 4(2) of the Fees and Travelling Allowances Act 1951 as payable to a member of a statutory Board who is travelling in the service of the Board:
(d) the cost paid for hiring a rental car, if that cost, together with the subsistence allowance under paragraph (c) and the special allowance provided for in regulation 22, is not more than the total of the fares, subsistence allowance, and special allowance that would have been payable if public transport had been used.

(2) However, in relation to subclause (1)(a), receipts must be produced for fares that exceed 10% of the base hourly rate of remuneration if these are not fixed by law or readily ascertainable.

22 Special allowance for travelling time

(1) A special allowance at the following rates is payable to counsel for each hour spent travelling in a day for the purpose of work to which this Part applies, in addition to the travelling expenses provided for in regulation 21:
(a) in the case of senior counsel, 66% of the base hourly rate of remuneration:
(b) in the case of intermediate counsel, 53% of the base hourly rate of remuneration:
(c) in the case of junior counsel, 43% of the base hourly rate of remuneration.

(2) The special allowance is not payable in addition to any other payment, for preparation or otherwise, in respect of the same time.

23 Other expenses

(1) The fees prescribed in these regulations include all charges for receiving instructions, preparation, correspondence, research, reports, and attendances.
(2) However, other necessary expenses (for example, toll charges) are payable to the extent that the certifying officer is satisfied that the expenses are fair and reasonable both as to nature and cost.

24 Claims for fees

A person who claims fees, expenses, and allowances under these regulations must, on completion of the work to which the claim relates,—
(a) prepare and sign a voucher setting out full particulars of the claim; and
(b) forward the voucher to the certifying officer.

25 Certification of claim

(1) The certifying officer must certify that the fees, expenses, and allowances claimed are payable under these regulations if—
(a) he or she is satisfied that they are in accordance with the certified scale of fees; or

(b) these regulations require them to be fixed by reference to a maximum and—
(i) the claim does not exceed the maximum; and
(ii) in the opinion of the certifying officer, they are fair and reasonable; or

(c) in respect of a claim for fees, there are no appropriate fees provided for in these regulations and the fees claimed are, in the opinion of the certifying officer, fair and reasonable and for each hour involved do not exceed,—
(i) in the case of senior counsel, the base hourly rate of remuneration:
(ii) in the case of intermediate counsel, 80% of the base hourly rate of remuneration:
(iii) in the case of junior counsel, 65% of the base hourly rate of remuneration.

(2) Subclause (1) is subject to regulations 26 and 28.
(3) Nothing in subclause (1)(c) applies to fees claimed by a lecturer.

26 Power to approve lesser fee or expenses

(1) This regulation applies if the certifying officer is of the opinion—
(a) that the time involved or the nature of the service actually performed does not justify the payment of the full fees set out in the certified scale of fees; or
(b) that the work involved in a transaction or proceeding is reduced by the fact that the transaction or proceeding is one of a series of transactions or proceedings that are similar or arise out of the same set of circumstances.

(2) The certifying officer must approve whatever lesser fees he or she thinks are fair and reasonable and certify this on the voucher.

27 Payment of claim

(1) The certifying officer must forward the certified voucher to the Chief of Defence Force or other officer authorised by the Chief of Defence Force for the purpose of this regulation.
(2) If the Chief of Defence Force or other authorised officer is satisfied that the services charged have been duly performed, he or she must certify this and arrange payment.

28 Power to refer claim to Solicitor-General

(1) Subclause (2) applies if—
(a) the fees, expenses, and allowances claimed are more than the amount that, in the opinion of the certifying officer, could properly be claimed under regulation 24 because of exceptional circumstances; or
(b) the certifying officer doubts whether the fees are proper fees for him or her to certify.

(2) If this subclause applies,—
(a) the certifying officer must refer the voucher and a memorandum setting out his or her reasons to the Solicitor-General; and
(b) the Solicitor-General may authorise the fees, expenses, and allowances that he or she considers fair and reasonable.

(3) If the Chief of Defence Force considers that a fee, expense, or allowance payable under these regulations is inadequate or excessive having regard to exceptional circumstances,—
(a) the Chief of Defence Force may refer the matter to the Solicitor-General for review; and
(b) the Solicitor-General may authorise the fee, expense, or allowance that he or she considers fair and reasonable.

Part 3
Miscellaneous

29 Transitional provision

(1) If a member of the Armed Forces is convicted of an offence before the commencement of these regulations and is in civil custody, service custody, close arrest, or is suspended from duty after the commencement of these regulations, regulations 7 to 9 apply to the period of civil custody, service custody, close arrest, or suspension from duty after that commencement.
(2) Nothing in these regulations affects the validity of any forfeiture in respect of a period of civil custody, service custody, close arrest, or suspension from duty before the commencement of these regulations.

30 Revocations and saving

(1) The following regulations are revoked:
(a) the Armed Forces Discipline Regulations 1990 (SR 1990/79):
(b) the Armed Forces Discipline (Legal Services Fees and Allowances) Regulations 1991 (SR 1991/80).

(2) The Armed Forces Discipline (Legal Services Fees and Allowances) Regulations 1991, despite their revocation by subclause (1), continue to apply to work done on or after their commencement but before 1 July 2009.

Michael Webster,for Clerk of the Executive Council.

Explanatory note

This note is not part of the regulations, but is intended to indicate their general effect.
These regulations, which come into force on 1 July 2009, revoke and replace the Armed Forces Discipline Regulations 1990 and the Armed Forces Discipline (Legal Service Fees and Allowances) Regulations 1991.
Regulations 4 to 6 prescribe the extent to which the Court Martial or a disciplinary officer, on passing the sentence or imposing the punishment of reduction in rank, forfeiture of seniority, or stay of seniority on members of the Armed Forces, may reduce their rank, or forfeit or stay their seniority.
Regulations 7 to 13 provide for—

the forfeiture of pay and allowances of members of the Armed Forces who are convicted of an offence in a civil court or by the Court Martial, or who are found guilty of an offence by a disciplinary officer:
the recovery of pay and allowances forfeited, fines imposed, or compensation or other payments ordered following conviction by the Court Martial or a finding of guilty by a disciplinary officer.

Regulations 14 to 28 provide for the payment of fees, allowances, and expenses to—

legal counsel (other than a member of the Armed Forces) for work done on or after 1 July 2009 in connection with proceedings before the Summary Appeal Court, the Court Martial, or the Court Martial Appeal Court, and other matters relating to service law:
a person (other than a member of the Armed Forces) engaged to lecture on any matter relating to service law for work done after the same date.

Regulation 15 provides for the establishment of a scale of fees, travelling expenses, and allowances payable in respect of work to which the regulations apply. In the case of fees, the scale is established relative to the fees payable under the Crown Solicitors Regulations 1994. Those regulations require the Crown Solicitor, in each year, to determine what is called the senior hourly rate of remuneration. Under regulation 16 of these regulations, this figure is the base hourly rate of remuneration for work to which the regulations apply and the fees payable are expressed as a percentage of this rate. For counsel, this depends on the person's classification under regulation 17 as senior, intermediate, or junior.
Regulations 21 to 23 provide for the payment of various allowances and expenses, including for transport, travelling time, and subsistence costs, in connection with work to which the regulations apply.
Regulations 24 to 28 set out the procedure to be followed in relation to a claim for fees, expenses, and allowances under the regulations, including certification and payment of the claim.

Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette: 7 August 2008.
These regulations are administered by the New Zealand Defence Force.