EXPLANATORY STATEMENT
Issued by authority of the Minister for Defence Personnel
Defence Act 1903
Defence Amendment (Oaths and Affirmations) Regulations 2018
The Defence Act 1903 (the Act) prescribes the control, administration, constitution and service of the Australian Defence Force (ADF).
Subsection 124(1) of the Act provides that the Governor-General may make regulations not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the good government of the Defence Force, or for carrying out or giving effect to the Act. The Defence Amendment (Oaths and Affirmations) Regulations 2018 (the Regulation) is made under the Act.
The purpose of the Regulation is to amend the oath and affirmation Schedule in the Defence Regulation 2016 to extend the rank of persons before whom the oath or affirmation may be taken or made, to include Warrant Office Class 2 (or equivalent) and to simplify the provision.
A person must, before being appointed or enlisted (or as soon as practicable after appointment or enlistment) in the ADF, take an oath or make an affirmation before a person mentioned in the relevant Schedule. In some instances recruiting centres have a Warrant Officer Class 2 (or equivalent) as the Senior Military Recruiting Officer and an oath or affirmation is unable to be taken or made before this member under the current Defence Regulation 2016. Consequently, these recruiting centres and other centres with staff absences are unable to administer an oath or affirmation, and therefore appoint or enlist Defence members, without relying on external support. This Regulation will address the recruitment issue.
Consultation
Headquarters Defence Force Recruiting in the Department of Defence has been consulted and they support the proposed amendment.
The authorising Act specifies no conditions that need to be fulfilled before the Regulation can be made.
The Regulation is a legislative instrument for the purposes of the Legislation Act 2003.
The Regulation would commence on the day after it is registered on the Federal Register of Legislation and the details of the Regulation are set out in the Attachment.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Defence Amendment (Oaths and Affirmations) Regulations 2018
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Defence Amendment (Oaths and Affirmations) Regulations 2018
is to amend the Oath and affirmation Schedule in the Defence Regulation 2016 to extend the rank of persons before whom the oath or affirmation may be taken or made, to include Warrant Office Class 2 (or equivalent).
Human rights implications
The Regulation will make minor governance amendments to extend the rank of persons before whom the oath or affirmation may be taken or made. The amendments will have no impact on the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. This Regulation is compatible with human rights as it does not raise any human rights issues.
Minister for Defence Personnel, the Honourable Darren Chester MP
Details of the Regulations are as follows:
Section 1 – Name
This section provides that the title of the instrument is the Defence Amendment (Oaths and Affirmations) Regulations 2018.
Section 2 – Commencement
This section provides for the Regulation to commence on the day after the instrument is registered.
Section 3 – Authority
The Regulation is made under the Defence Act 1903.
Section 4 – Schedules
This section provides that each instrument as set out in the Schedule is amended or repealed as specified.
Schedule 1- Amendments
Section1 – This section amends the oath and affirmation provisions to simplify the provision by referring to equivalent ranks and to extend the rank of persons before whom an oath or affirmation may be taken or made to include an enlisted member not below the rank of Warrant Officer Class 2 (Army), Flight Sergeant (Air Force) or Chief Petty Officer (Navy).
Overview
The Defence Amendment (Oaths and Affirmations) Regulations 2018 were introduced to address a gap in the Defence Regulation 2016, which previously did not allow for an oath or affirmation to be taken or made before a Warrant Officer Class 2 (or equivalent) when they were acting as the Senior Military Recruiting Officer. This oversight created difficulties in administering oaths and affirmations, thereby affecting the enlistment process within the Australian Defence Force (ADF). Enacted under the authority of the Defence Act 1903, these regulations aim to streamline the process by extending the eligibility to administer oaths and affirmations to include lower-ranked officers, thereby ensuring that recruitment and enlistment procedures can proceed smoothly without reliance on external support. The enacting body, the Minister for Defence Personnel, seeks to enhance the efficiency and governance of the ADF through these amendments.
Scope and Application
The Defence Amendment (Oaths and Affirmations) Regulations 2018 applies to the Australian Defence Force (ADF) and its members. It is made under the Defence Act 1903 and is designed to amend the Defence Regulation 2016, particularly the oath and affirmation provisions, to address a specific issue in the enlistment process. This regulation extends the rank of personnel who can administer oaths or affirmations to include Warrant Office Class 2 (Army), Flight Sergeant (Air Force), and Chief Petty Officer (Navy), or their equivalents, thereby ensuring that enlistment can proceed smoothly even in the absence of higher-ranking officers. The regulation is applicable nationally, as it pertains to the administration of the ADF across Australia. There are no stated exclusions or thresholds within the Regulation itself, though the scope is inherently limited to the ADF and its enlistment procedures. The regulation commences on the day after it is registered on the Federal Register of Legislation, and any further application or interpretation of its provisions may be extended through subordinate instruments made under the Defence Act 1903.
Key Provisions
The Defence Amendment (Oaths and Affirmations) Regulations 2018 (the Regulations) are designed to modify the existing Defence Regulation 2016. Specifically, section 1 of Schedule 1 of the Regulations extends the categories of personnel who can administer oaths or affirmations to new recruits in the Australian Defence Force (ADF). These personnel now include those who hold the rank of Warrant Officer Class 2 (Army), Flight Sergeant (Air Force), or Chief Petty Officer (Navy) (section 1 of Schedule 1). This change addresses a practical issue where certain recruiting centres have been unable to administer oaths or affirmations due to the absence of higher-ranking officers, thus enabling them to proceed with appointments and enlistments without external support.
The Regulations impose obligations on ADF personnel to take an oath or make an affirmation before a designated individual, as stipulated in the amended Schedule. This requirement ensures that the process of oath-taking or affirmation is conducted in a formal and authorised manner, maintaining the integrity of the ADF's enlistment process (section 1 of Schedule 1). The Regulations also mandate that these oaths or affirmations be taken before enlistment or as soon as practicable after appointment, reinforcing the timeliness and procedural correctness in the administration of these commitments.
Failure to comply with the requirements to take an oath or make an affirmation as stipulated by the Regulations could result in legal consequences. While specific penalties are not detailed in the explanatory statement, breaches of regulations concerning oaths and affirmations could potentially lead to disciplinary actions within the ADF. The Defence Act 1903 and related regulations provide a framework for handling such breaches, which may include administrative penalties or more severe disciplinary measures depending on the nature and severity of the breach.
In summary, the Regulations amend the Defence Regulation 2016 to facilitate the administration of oaths and affirmations by expanding the list of authorised personnel. These changes streamline the enlistment process and ensure continuity in recruitment activities, while placing a clear obligation on ADF personnel to adhere to the prescribed formalities in oath-taking or affirmation-making. The potential for disciplinary actions underscores the importance of compliance with these provisions.