EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 127
ISSUED BY THE AUTHORITY OF THE
MINISTER FOR DEFENCE SCIENCE AND PERSONNEL
AUSTRALIAN MILITARY REGULATIONS (AMENDMENT)
The Australian Military Regulations, made under the Defence Act 1903, prescribe various matters relating to the organisation and administration of the Army.
The Defence Legislation Amendment Act 1987 (“the 1987 Act”) included amendments of the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Act 1923 to enable the call out of the Reserve Forces in situations short of a declaration of a defence emergency to enable those forces to be available to meet low level contingencies. The 1987 Act also made amendments to provide, in relation to the Army and the Navy, a scheme under which soldiers and sailors may enlist, or have their periods of enlistment extended, until their retiring age (referred to herein as “open-ended enlistment” and “open-ended extension of service”). This scheme replaces the previous system under which enlisted members were required to enlist or re-engage for a specified period. (In the case of the Air Force, provisions corresponding to the new Navy and Army enlistment scheme were already contained in the Air Force Regulations.)
These amendments to the 1987 Act could not be proclaimed to commence until consequential amendments were made to regulations, including the Australian Military Regulations (“the Regulations”).
Australian Military Regulations (Amendment)
Regulation 3 amends regulation 76, consequent on amendments made to section 32 of the Defence Act 1903 by the 1987 Act, to empower the Governor-General or the Chief of the General Staff to transfer officers from one part of the Army to another, if they volunteer for transfer. By a related amendment a definition of “force” is inserted into the Regulations by regulation 2.
Regulation 4 repeals existing regulations relating to enlistment and re-engagement which are superseded by new sections 36 and 37 of the Defence Act 1903. It inserts a new regulation 135 which, with regulation 9, replaces detail about the oath of enlistment previously contained in the Defence Act 1903 and omitted from that Act by the 1987 Act.
Regulation 5 inserts a new regulation 143A, consequent on amendments made to sections 32 and 32A of the Defence Act 1903 by the 1987 Act, which empowers the Chief of the General Staff to transfer soldiers from one part of the Army to another, if they volunteer for transfer.
Regulation 6 inserts a new regulation 175, as a consequence of amendments made to section 39 of the Defence Act 1903 by the 1987 Act. Section 39 as amended deals with soldiers who are serving on an open-ended enlistment or an open-ended extension of service. Subsection 39(2) provides that, subject to certain exceptions (such as service in time of war), a soldier who is serving on an open-ended enlistment or open-ended extension of service has the right to claim discharge on giving the appropriate period of notice. Under subsection 39(3), this period is, in relation to members of the Australian Regular Army or the Regular Army Supplement, 12 months or such lesser period as the Chief of the General Staff determines having regard to such matters as are prescribed. New regulation 175 prescribes the matters that the Chief of the General Staff is to have regard to in setting a period less than 12 months.
Regulation 7 amends regulation 176. The amendment relates to paragraph 176(1)(g) which empowers the Chief of the General Staff to discharge a soldier on the ground of retrenchment. The amendment imposes restrictions on the use of this ground for discharge, in relation to soldiers of the Australian Regular Army serving on an open-ended enlistment or extension of service, so that the soldier has to be given 12 months notice and the retrenchment has to be in accordance with a plan issued by the Chief of the General Staff.
Regulation 8 amends certain references to the Defence Act 1903 to accord with amendments made to that Act by the 1987 Act.
Commencement
The Statutory Rule comes into operation on 1 July 1988, the date on which the remaining provisions of the 1987 Act will be proclaimed to commence.
Overview
The Australian Military Regulations (Amendment) Statutory Rules 1988 No. 127, issued by the authority of the Minister for Defence Science and Personnel, were enacted to address the need for amendments to existing military regulations following the passage of the Defence Legislation Amendment Act 1987. This Act introduced significant changes to the Defence Act 1903, the Naval Defence Act 1910, and the Air Force Act 1923, including provisions for the call out of Reserve Forces in situations short of a declared defence emergency, and a new scheme for open-ended enlistments and extensions of service for Army and Navy personnel. The amendments to the Australian Military Regulations ensure consistency and conformity with the legislative changes made by the 1987 Act, including provisions for officer and soldier transfers, updated enlistment and re-engagement processes, and regulations regarding discharge for retrenchment. The Statutory Rules came into operation on 1 July 1988, aligning with the commencement of the 1987 Act's provisions.
Scope and Application
The Australian Military Regulations (Amendment) Statutory Rules 1988 No. 127 amends the Australian Military Regulations, made under the Defence Act 1903, to reflect legislative changes introduced by the Defence Legislation Amendment Act 1987. This amendment applies to officers and soldiers within the Army, as well as to the enlistment and service conditions of members of the Australian Regular Army and Regular Army Supplement. The Regulations govern the transfer of officers and soldiers within the Army, the procedures for enlistment and re-engagement, and the conditions under which soldiers may be discharged. This amendment applies nationally as it is a regulation made under an Act of the Commonwealth Parliament. The Regulations are subject to any subordinate instruments issued under the Defence Act 1903 which may further define or extend their application. This amendment ensures that the Regulations remain consistent with the Defence Act 1903, as amended by the 1987 Act, by incorporating new provisions for open-ended enlistments, the transfer of personnel, and the conditions of discharge, particularly in relation to retrenchment.
Key Provisions
The Australian Military Regulations (Amendment) Statutory Rules 1988 No. 127 introduce several key amendments to the Australian Military Regulations, which are made under the Defence Act 1903. Regulation 3 (subsection 76) allows the Governor-General or the Chief of the General Staff to transfer officers within the Army if they volunteer for transfer, as per section 32 of the Defence Act 1903. Regulation 4 repeals previous enlistment and re-engagement regulations, replacing them with new provisions found in sections 36 and 37 of the Defence Act 1903. It also inserts a new regulation 135, which, along with regulation 9, addresses the oath of enlistment previously contained in the Defence Act 1903 but omitted by the 1987 Act. Regulation 5 adds a new regulation 143A, allowing the Chief of the General Staff to transfer soldiers within the Army if they volunteer for transfer, as per sections 32 and 32A of the Defence Act 1903. Regulation 6 introduces a new regulation 175, which details the considerations for the Chief of the General Staff when setting a period less than 12 months for soldiers on open-ended enlistments or extensions of service to claim discharge. This follows the amendment of section 39 of the Defence Act 1903 by the 1987 Act. Regulation 7 modifies regulation 176 to impose restrictions on the grounds for discharging soldiers on retrenchment, particularly for those on open-ended enlistments or extensions of service, requiring 12 months notice and adherence to a plan issued by the Chief of the General Staff. Finally, Regulation 8 updates references to the Defence Act 1903 to align with the amendments made by the 1987 Act.
The Australian Military Regulations (Amendment) Statutory Rules 1988 No. 127 impose several obligations and requirements on the parties and entities it governs. For instance, officers and soldiers who volunteer for transfer within the Army must comply with the new regulations regarding transfers (Regulations 3 and 5). The Chief of the General Staff must consider certain factors when setting a discharge period for soldiers on open-ended enlistments or extensions of service (Regulation 6). Additionally, the Chief of the General Staff must adhere to specific procedures and provide appropriate notice when discharging soldiers on retrenchment grounds (Regulation 7). The amendment of regulation 135 and the insertion of regulation 9 ensure that the oath of enlistment is properly administered according to the updated Defence Act 1903 (Regulation 4). Lastly, Regulation 8 requires entities to update references to the Defence Act 1903 to reflect the changes made by the 1987 Act.
The Australian Military Regulations (Amendment) Statutory Rules 1988 No. 127 do not explicitly state specific offences, penalties, or civil/criminal consequences for breaches. However, any failure to comply with the provisions outlined in the regulations could potentially lead to legal consequences under the broader Defence Act 1903 or other relevant military laws. For instance, not adhering to the transfer or discharge procedures could be considered a breach of service regulations, which might result in disciplinary actions, fines, or other penalties as determined by military courts or authorities. The specific consequences would depend on the nature and severity of the breach, as well as the applicable military law provisions.