EXPLANATORY STATEMENT
STATUTORY RULES 1990 NO. 42
ISSUED BY THE AUTHORITY OF THE
MINISTER FOR DEFENCE SCIENCE AND PERSONNEL
AUSTRALIAN MILITARY REGULATIONS (AMENDMENT)
Section 33 of the Defence Act 1903 (“the Act”) provides that the Army shall be organised as prescribed or, where there is no provision or insufficient provision made by the Act or the regulations with respect to any matter relating to the organisation of the Army, as determined by the Chief of the General Staff.
The Australian Military Regulations (“the Regulations”), made under the Act, prescribe various matters relating to the organisation and administration of the Army.
Regulations 22 to 26 of the Regulations prescribed matters relating to the establishment of 3 Divisions (Specialist Service Officer Division, Prescribed Service Officer Division and General Service Officer Division) for officers of the Army.
Regulation 22 expressly established the Divisions for the purposes of section 33 of the Act. However, section 33 of the Act has been proposed for repeal (by the Defence Legislation Amendment Bill (No. 2) 1989, which was introduced into the House of Representatives on 29 November 1989). Organisational arrangements for the Defence Force, including the Army, will in future be made under the command power vested in the chiefs of staff under subsection 9(2) of the Act. It is therefore necessary to remove the reference to section 33 in regulation 22.
Regulations 23 to 26 prescribed the composition of the three Divisions. As it is not necessary to prescribe such details of Army organisation, these regulations have been repealed.
Although detailed provisions are not required, it is still necessary to provide for the establishment of the Divisions themselves in the Regulations (ie, regulation 22) because compulsory retiring ages prescribed in regulation 124 are linked to the divisional structure.
As regulation 76 of the Regulations requires an officer’s consent for transfer from one Division to another, there is effectively a requirement for consent to a change in compulsory retirement age and therefore no risk of injustice through failing to prescribe the composition of Divisions.
The Statutory Rule amends regulation 22 of the Regulations by omitting the reference to section 33 of the Act, and repeals regulations 23 to 26.
The Statutory Rule comes into operation on the date of gazettal.
Overview
The Australian Military Regulations (Amendment) Statutory Rules 1990, issued under the authority of the Minister for Defence Science and Personnel, was introduced to address the proposed repeal of section 33 of the Defence Act 1903. This section originally stipulated that the Army would be organised as prescribed by law or, in the absence of such provisions, as determined by the Chief of the General Staff. The amendment responds to the Defence Legislation Amendment Bill (No. 2) 1989, which proposed the repeal of section 33 and the re-allocation of organisational authority to the chiefs of staff. Consequently, the Statutory Rule modifies regulation 22 of the Australian Military Regulations by removing the reference to section 33, while also repealing regulations 23 to 26 that detailed the composition of the three Divisions within the Army. Despite the repeal of specific details about the Army’s organisation, the rule retains the establishment of the Divisions to maintain the linkage between compulsory retiring ages and the divisional structure. This amendment ensures there is no risk of injustice regarding compulsory retirement ages, as officers’ consent is required for transfers between Divisions under regulation 76.
Scope and Application
The Australian Military Regulations (Amendment) Statutory Rules 1990 No. 42, issued under the authority of the Minister for Defence Science and Personnel, pertains to the amendment of the Australian Military Regulations, which are themselves made under the Defence Act 1903. The Regulations concern the organisation and administration of the Army, and the amendment specifically addresses the establishment of three Divisions for Army officers: the Specialist Service Officer Division, the Prescribed Service Officer Division, and the General Service Officer Division. The amendment removes the reference to section 33 of the Defence Act in regulation 22, which previously established these Divisions, as section 33 is proposed for repeal. This change aligns with the proposed shift in authority for Army organisation under the command power vested in the chiefs of staff, as outlined in subsection 9(2) of the Defence Act. Concurrently, regulations 23 to 26, which previously prescribed the composition of these Divisions, have been repealed, although the Divisions themselves remain established in regulation 22 due to the link between the divisional structure and compulsory retiring ages in regulation 124. The amendment ensures that while detailed organisational provisions are no longer necessary, the foundational establishment of the Divisions is preserved to maintain the integrity of retirement age provisions.
Key Provisions
The Australian Military Regulations (Amendment) Statutory Rule primarily modifies regulation 22 of the Australian Military Regulations, which pertain to the establishment of three specialist divisions within the Army (section 2). Regulation 22, previously referencing section 33 of the Defence Act 1903, is amended to remove this reference in light of proposed legislative changes. This amendment ensures that the establishment of the Specialist Service Officer Division, Prescribed Service Officer Division, and General Service Officer Division remains valid despite the repeal of section 33. Additionally, regulations 23 to 26, which detail the composition of these divisions, are repealed (section 3). Despite the repeal of these detailed provisions, the need to maintain the establishment of the divisions is underscored due to the link between the divisional structure and compulsory retiring ages prescribed in regulation 124.
The Act imposes several obligations on the parties involved, particularly regarding the administration and organisation of the Army. Firstly, the amendment ensures that the establishment of the three divisions is preserved, thereby maintaining the structural integrity of the Army's officer corps (regulation 22). Although the specific composition of these divisions is no longer prescribed, the regulation ensures that officers are aware of their division, which is crucial for matters such as compulsory retirement ages and potential transfers between divisions. This alignment helps prevent any potential injustices arising from changes in compulsory retirement ages without the necessary divisional structure in place. Moreover, the requirement for an officer’s consent for any transfer from one division to another (regulation 76) ensures that officers have a say in their career progression and retirement planning, maintaining a level of transparency and fairness.
In terms of potential breaches and consequences, the Statutory Rule does not explicitly outline specific offences or penalties. However, any failure to adhere to the amended regulations could lead to administrative inconsistencies, particularly regarding the enforcement of compulsory retirement ages linked to the divisional structure. Although the precise legal consequences of such non-compliance are not detailed in the Rule, it is reasonable to infer that any significant administrative errors or injustices resulting from improper application of the regulations could be subject to review or correction by the relevant authorities. The overarching aim of the Rule is to ensure smooth and fair administrative practices within the Army's officer corps.