Defence Force Regulations (Amendment) (Cth)

Statutory Rules 1985 No. 1311

Defence Force Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and pursuant to section 4 of the Acts Interpretation Act 1901,hereby make the following Regulations under the Defence Act 1903.

Dated 21 June 1985.

N. M. STEPHEN

Governor-General

By His Excellency’s Command,

K. C. Beazley

Minister of State for Defence

 

Commencement

1. These Regulations shall come into operation on 3 July 1985.

2. The Defence Force Regulations are amended by adding at the end the following Parts:

“PART XIII—SUSPENSION AND FORFEITURE OF SALARY AND ALLOWANCES

Interpretation

“59. (1) In this Part, unless the contrary intention appears—

‘allowance’ in relation to a member, is a reference to an allowance that, apart from the provisions of this Part, is payable to the member under service law in respect of his or her service in the Defence Force;

‘foreign country’ includes a state, province or similar division of a foreign country;

 

(S.R. 145/85) Cat. No. Recommended retail price 80c  14/12.6.1985

 

‘member’ means a member of the Permanent Forces and includes any member of the Defence Force rendering continuous full-time service;

‘offence’ includes an offence against the law of a foreign country;

‘police custody’, in relation to a member, means detention of the member by one or more members of—

(a) the Australian Federal Police;

(b) a police force of a State or Territory; or

(c) a police force of a foreign country,

in connection with an offence which the member is alleged to have, or is suspected of having, committed, whether or not the member has been charged with that or any other offence during that custody;

‘salary’, in relation to a member, is a reference to salary that, apart from the provisions of this Part, is payable to the member under service law in respect of his or her service in the Defence Force;

‘service law’ means any law that applies in relation to a person by reason only that the person is a member and includes a determination under section 58b or 58h of the Act.

“(2) For the purposes of this Part, the salary or allowances, or salary and allowances—

(a) that is or are payable to a member; or

(b) that would, but for this Part, have been payable to a member,

during a period, shall be deemed to accrue from day to day during that period.

“(3) In this Part, a reference to the absence of a member without leave shall be read as a reference to any absence from, or cessation of performance of, duty by the member that is not authorised under service law.

“(4) For the purposes of this Part, a member who is absent from duty—

(a) while in civil custody; or

(b) during a period of imprisonment imposed on the member upon conviction of an offence,

shall not be regarded as being absent without leave.

“(5) In this Part, a reference to the absence of a member while in civil custody shall be read as a reference to any absence from duty by the member where, otherwise than under service law, the member is held in police custody or is otherwise detained in custody pending, or during, the trial of the member for an offence.

“(6) For the purposes of this Part, where a member—

(a) otherwise than under service law, is held in police custody or is otherwise detained in custody pending, or during, the trial of the member for an offence and, during the period of that detention, the member is authorised under service law to be absent from duty; or

(b) is undergoing a period of imprisonment imposed on the member upon conviction of an offence,

the member shall not be regarded as being absent while in civil custody.

Suspension of salary and allowances

“60. (1) Subject to this Part, where a member is absent without leave, or is absent while in civil custody, for 24 hours or more, payment to the member of his or her salary and allowances is suspended.

“(2) Subject to sub-regulation (3), a suspension under sub-regulation (1) in respect of the salary and allowances of a member operates in relation to the salary and allowances that accrue to the member on and after the day following the day on which the member first so became absent.

“(3) A suspension under sub-regulation (1) in respect of the salary and allowances of a member who has been absent without leave or while in civil custody does not operate in relation to the salary or allowances that accrue to the member after he or she returns to duty.

Certificate of commanding officer

“61. (1) Where a member has been absent without leave and that member’s commanding officer has reasonable grounds for believing—

(a) that that absence was not an offence against service law; or

(b) that there was a reasonable excuse for the absence,

the commanding officer shall issue a certificate to that effect.

“(2) Where a certificate is issued under sub-regulation (1) in respect of a member’s absence without leave, the suspension effected by regulation 60 in respect of that absence ceases.

“(3) Where a commanding officer, who has issued, under sub-regulation (1), a certificate in respect of the absence without leave of a member, finds that there are no reasonable grounds for the belief on the basis of which the certificate was issued, the commanding officer shall, by writing, revoke the certificate.

“(4) Subject to this Part, where a certificate issued under sub-regulation (1) in respect of a member’s absence without leave is revoked under sub-regulation (3), payment to the member of his or her salary and allowances is suspended.

“(5) A suspension under sub-regulation (4) in respect of the salary and allowances of a member operates in relation to—

(a) any salary and allowances that accrued to the member during the period—

(i) commencing at the end of the day on which he or she first so became absent; and

(ii) ending immediately before the day on which the certificate was revoked,

and which remained unpaid when the certificate was revoked; and

(b) subject to sub-regulation (6), the salary and allowances that accrue to the member on and after the day on which the certificate was revoked.

“(6) A suspension under sub-regulation (4) in respect of the salary and allowances of a member does not operate in relation to the salary and allowances that accrue to the member after he or she returns to duty.

Effect of suspension

“62. (1) Where payment of the salary and allowances of a member is suspended under this Part, no part of the salary or allowances to which that suspension relates is payable to that member.

“(2) The suspension under this Part of payment of the salary and allowances of a member does not affect any right that the member may have to receive payment of the whole or any part of the salary or allowances to which that suspension relates if that suspension ceases otherwise than by virtue of a forfeiture of that salary or those allowances, or both.

Cessation of suspension—absence without leave

“63. (1) In this regulation—

‘duty’, in relation to a member, means duty under the command of the member’s commanding officer;

‘prescribed period’, in relation to a member who has been absent without leave, means the period of 14 days commencing at the end of the day on which the member returns to duty;

‘suspension’, in relation to a member, means the suspension under this Part of the payment of salary and allowances to that member by reason of the absence without leave of that member.

“(2) Where a member subject to a suspension returns to duty after being absent without leave, that suspension continues to apply to the salary and allowances to which it relates after the return to duty of the member and, unless it earlier ceases, ceases—

(a) if within the prescribed period for that member the member is not charged under service law with an offence on the ground of that absence or any part of it—at the end of that period;

(b) if within the prescribed period for that member the member is so charged and a direction is given that the charge be not proceeded with—when that direction is given;

(c) if within the prescribed period for that member the member is so charged and the charge is dismissed—when the charge is dismissed;

(d) if within the prescribed period for that member the member is so charged and the member is acquitted of the offence—when the member is acquitted; or

(e) if within the prescribed period for that member the member is so charged and the charge is found to have been proved but a decision is

given by the service tribunal hearing the charge not to convict the member of an offence—when that decision is given.

Cessation of suspension—civil custody

“64. (1) In this regulation, ‘suspension’, in relation to a member, means the suspension under this Part of the payment of salary and allowances to that member by reason of the absence from duty of that member while in civil custody.

“(2) Where a member subject to a suspension returns to duty from civil custody having been in civil custody by reason of an act which the member is alleged to have done, or is suspected of having done, and during the period of that absence—

(a) the member was not charged under a law, other than service law, with an offence constituted by the doing of that act; or

(b) the member was so charged and—

(i) the charge was withdrawn;

(ii) the charge was dismissed;

(iii) the member was acquitted of the offence; or

(iv) the charge was found to be proved but a decision was made by the court hearing the charge not to convict the member of an offence,

that suspension ceases when the member so returns to duty.

“(3) In sub-regulation (2), the reference to the doing of an act includes a reference to the omission to do an act.

Forfeiture of salary and allowances—absence without leave

“65. Where a member is absent without leave for a period that continues for 24 hours or more and—

(a) the member is convicted of being absent without leave in respect of that period;

(b) during that absence the member, under a law other than service law, is convicted of an offence for which a sentence of imprisonment is imposed; or

(c) that absence is the reason for which the member is discharged from an arm of the Defence Force,

the member, upon that conviction or discharge, as the case may be, forfeits all salary and allowances that accrued to the member during the period—

(d) that begins at the end of the day on which the member first became so absent; and

(e) that ends at the end of the day on which the member ceased to be so absent.

Forfeiture of salary and allowances—civil custody

“66. (1) Where by reason of an act which a member is alleged to have done, or is suspected of having done, the member is—

(a) absent while in civil custody for a period that continues for 24 hours or more; and

(b) convicted under a law, other than service law, of an offence which is constituted by the doing of that act,

the member, upon that conviction, forfeits all salary and allowances that accrued to the member during the period—

(c) that begins at the end of the day on which the member first became so absent; and

(d) that ends at the end of the day on which the member ceased to be so absent.

“(2) In sub-regulation (1), the reference to the doing of an act includes a reference to the omission to do an act.

Forfeiture of salary and allowances—imprisonment

“67. (1) Where a member is convicted of an offence for which a sentence of imprisonment is imposed, the member, upon that conviction, forfeits all salary and allowances that accrue to the member during the period—

(a) that begins at the end of the day on which the member is so convicted; and

(b) that ends at the end of the day on which the member ceases to serve that sentence, or ceases to be a member, whichever first occurs.

“(2) A period of imprisonment referred to in sub-regulation (1) does not include weekend or periodic detention.

“(3) In sub-regulation (2), ‘weekend or periodic detention’ means detention or imprisonment pursuant to a law, other than service law, providing for—

(a) weekend detention or imprisonment; or

(b) periodic detention or imprisonment.

Forfeiture of salary and allowances—detention under service law

“68. (1) Where under service law a member is undergoing the punishment of detention for a period, the member forfeits—

(a) so much of the member’s salary that accrues during that period as exceeds the amount of salary that would have accrued to the member during that period if the member had during that period been a normal entry recruit undergoing basic recruit training as specified in Determination 0101, Salary of Permanent Force Members, made under section 58b of the Act; and

(b) all allowances that accrue to the member in respect of that period, other than the allowance provided for under Determination 0805, Detention Allowance, made under section 58b of the Act.

“(2) Where under service law a member of the Emergency Forces or the Reserve Forces rendering service other than continuous full-time service is undergoing the punishment of detention for a period, that member forfeits—

(a) so much of the member’s salary that accrues during that period as exceeds the amount of salary that would have accrued to the member during that period if the member had during that period been a normal entry recruit undergoing basic recruit training as specified in Determination 0199, Pay of Reserve Force Members, made under section 58b of the Act; and

(b) all allowances that accrue to the member in respect of that period.

“(3) In sub-regulation (2), ‘allowance’, ‘salary’ and ‘service law’ have the same respective meanings in relation to a member referred to in that sub-regulation as they have in relation to a member.

Conviction quashed or set aside

“69. (1) In this regulation, ‘member’ includes a member referred to in sub-regulation 68 (2).

“(2) Where under this Part the salary and allowances of a member have been forfeited in whole or part by reason of the conviction of the member for an offence and—

(a) subject to paragraph (b), that conviction is quashed or set aside, an amount equal to the amount of the salary and allowances so forfeited is payable to the member;

(b) that conviction is quashed or set aside and another conviction substituted or the member is ordered to be tried again for the offence or for another offence, no amount referred to in paragraph (a) is payable to the member; or

(c) that conviction is quashed or set aside and at a further trial of the member for that offence or another offence the court or service tribunal acquits the member or decides that the member should not be convicted of an offence, the amount referred to in paragraph (a) is payable to the member.

Death of a member during suspension

“70. (1) Where—

(a) a member dies while absent without leave or the Minister directs in writing that the death of the member is to be presumed to have occurred while the member was absent without leave; and

(b) payment of salary and allowances to the member was, at the time of death or presumed death of the member, suspended under this Part,

the Minister shall—

(c) if the Minister decides that there are reasonable grounds for believing that the member did not have a reasonable excuse for that absence—by

writing order the forfeiture of all salary and allowances that accrued to the member during the period—

(i) that began at the end of the day on which the member first became so absent; and

(ii) that ended at the end of the day on which the member died or was presumed to die; or

(d) if the Minister decides that there are no reasonable grounds for believing that the member did not have a reasonable excuse for that absence—that suspension shall then cease.

“(2) Where a member dies while absent in civil custody and payment of salary and allowances to the member was, at the time of death, suspended under this Part, that suspension shall then cease.

Review of decisions

“71. (1) Where the Minister makes a decision to order the forfeiture of salary and allowances of a member under sub-regulation 70 (1), the Minister shall, by notice in writing given not later than 30 days after the date of the decision, inform the person or persons whose interests are affected by the decision of the making of the decision and of the grounds for the decision.

“(2) An application may be made to the Administrative Appeals Tribunal for review of a decision referred to in sub-regulation (1).

“(3) A notice referred to in sub-regulation (1) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975,application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.

“(4) A failure to comply with the requirements of sub-regulation (3) in relation to a decision shall not be taken to affect the validity of a decision.

“(5) For the purposes of sub-section 25 (6) of the Administrative Appeals Tribunal Act 1975,the operation of sub-section 43 (1) of that Act is, in relation to an application referred to in sub-regulation (2), modified by omitting paragraphs (a), (b) and (c) and substituting the following paragraphs:

‘(a) affirming the decision under review; or

(b) setting aside the decision under review and making a decision, in substitution for the decision so set aside, to pay to the legal personal representative of a member referred to in sub-regulation 70 (1) of the Defence Force Regulations an amount equal to the amount of all salary and allowances that accrued to the member during the period referred to in paragraph 70 (1) (c) of those Regulations.’.

Recovery of forfeited amounts

“72. (1) Where a member receives an amount which comprises in whole or part salary or allowances that have been forfeited under this Part, the

member shall repay to the Commonwealth an amount equal to the amount of that salary or those allowances.

“(2) Without affecting the right of the Commonwealth to recover by any other means an amount repayable by a member under sub-regulation (1), an amount equal to that amount may be deducted from any salary or allowances payable to the member.

“PART XIV—PAYMENT OF FINES

Re-imbursement of the Commonwealth

“73. (1) In this regulation—

‘court’ includes a court of a foreign country;

‘foreign country’ includes a state, province or similar division of a foreign country;

‘offence’ means an offence against any law other than the Defence Force Discipline Act 1982 and includes an offence against the law of a foreign country.

“(2) Where a member charged with an offence is ordered by a court to pay an amount as a fine or other pecuniary penalty or as damages, reparation, compensation or costs and the Commonwealth pays the whole or part of that amount, the amount so paid is a debt due and payable by the member to the Commonwealth.

“(3) Without affecting the right of the Commonwealth to recover by any other means a debt payable by a member under sub-regulation (2), an amount equal to the amount of that debt may be deducted from any salary or allowances payable to the member.”.

Transitional

3. (1) In this regulation—

“commencement day” means the day on which these Regulations come into operation;

“Defence Force Regulations” means the Defence Force Regulations as amended by these Regulations.

(2) This regulation shall be interpreted in accordance with regulation 59 of the Defence Force Regulations as if this regulation were included in Part XIII of the Defence Force Regulations.

(3) Subject to sub-regulation (5), where, on or after the commencement day, a member is convicted of absence without leave in respect of a period of absence the whole or any part of which occurred before the commencement day, the forfeiture effected by regulation 65 of the Defence Force Regulations shall apply in relation to all salary and allowances that accrued to the member during that period or that part of that period in the same way that it applies to salary and allowances that accrued to the member on and after the commencement day.

(4) Subject to sub-regulation (5), where, on or after the commencement day, a member is convicted under a law, other than service law, of an offence constituted by an act or an omission and by reason of that act or omission the member had previously been absent while in civil custody for a period the whole or any part of which occurred before the commencement day, the forfeiture effected by regulation 66 of the Defence Force Regulations shall apply in relation to all salary and allowances that accrued to the member during that period or that part of that period in the same way that it applies to salary and allowances that accrued to the member on and after the commencement day.

(5) Where, but for this sub-regulation, the amount of salary and allowances of a member that would be forfeited—

(a) by virtue of regulation 65 of the Defence Force Regulations, as applied by sub-regulation (3); or

(b) by virtue of regulation 66 of the Defence Force Regulations, as applied by sub-regulation (4),

in respect of a period of absence or that part of a period of absence occurring before the commencement day would exceed the amount of the salary and allowances that would have been forfeited in respect of that period or that part of that period if these Regulations had not been made and the member had, on or after that day, been convicted of absence without leave, or convicted of an offence constituted by an act or omission and by reason of that act or omission the member had previously been absent while in civil custody, as the case may be, in respect of that period or that part of that period, then that lower amount shall be the amount forfeited in respect of that period or that part of that period.

(6) Where, on or after the commencement day, a member is serving a sentence of imprisonment, or undergoing the punishment of detention, imposed in respect of a conviction that occurred before the commencement day, regulation 67 or 68 of the Defence Force Regulations, as the case may be, shall apply to that member on and after that day in respect only of that part of that sentence, or that part of that punishment, as the case may be, as is served or undergone, as the case may be, on and after that day.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 28 June 1985.

2. Statutory Rules 1952 No. 29 as amended to date. For previous amendments see Note 2 to Statutory Rules 1985 No. 88, and see also Statutory Rules 1985 Nos. 88, 118 and 131.

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