Defence Amendment (RCDVS Implementation) Regulations 2025

EXPLANATORY STATEMENT

Issued by authority of the Minister for Defence Personnel

Defence Act 1903

Defence Amendment (RCDVS Implementation) Regulations 2025

1.              The Defence Amendment (RCDVS Implementation) Regulations 2025 (the Amending Regulations) are made under paragraph 63(1)(f) and subsection 124(1) of the Defence Act 1903 (the Act).

Purpose of Amending Regulations

1.              The purpose of the Amending Regulations is to amend the Defence Regulation to implement a number of recommendations made by the Royal Commission into Defence and Veteran Suicide (RCDVS), as accepted by Government. These recommendations specifically relate to early end of service, redress of grievances, removal of stigmatising terminology to better reflect current Defence policies and practices, and other minor technical, typographical and consequential amendments.

Background

1.              The RCDVS was announced on 19 April 2021 and formally established by Letters Patent issued on 8 July 2021. The RCDVS delivered its Interim Report on 11 August 2022, with the Final Report delivered on 9 April 2024. On 2 December 2024, the Government responded to the Final Report, outlining a program of significant reform to implement the agreed recommendations.
2.              While Defence has undertaken substantial operational and policy reforms in response to the RCDVS Final Report, the Amending Regulations give effect to recommendations 21, 22, 31, 32, 52, 53 and 63, which specifically address the processes for early termination of service, mechanisms for redress of grievances and removal of stigmatising terminology.

Details of the instrument

1.              Details of the Amending Regulations are set out in Attachment A.

Consultation

1.              Substantial consultation and engagement was undertaken as part of the RCDVS, including engagement with current and former ADF members, families, advocacy organisations, and relevant government departments and agencies.
2.              Following the release of the RCDVS Final Report, Defence conducted further internal consultation and engaged with key stakeholders, including the Department of the Prime Minister and Cabinet and the Department of Veterans’ Affairs, to identify appropriate implementation pathways.
3.              Given the breadth of consultation already undertaken by the RCDVS, further external consultation in relation to the Amending Regulations was not considered necessary.
4.              This accords with the consultation requirements in section 17 of the Legislation Act 2003 (the Legislation Act).

Parliamentary scrutiny

1.          A Statement of Compatibility with Human Rights has been prepared in accordance with subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. The Amending Regulations are compatible with human rights because they promote the protection of human rights, and to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate as set out in the Statement. The Statement is included at Attachment B.

Application

1.          The Amending Regulations are a legislative instrument for the purposes of the Legislation Act, and are subject to disallowance and sunsetting under sections 42 and 50 of the Legislation Act, respectively.
2.          The Amending Regulations commence on the day after the Regulations are registered on the Federal Register of Legislation.
3.          The Amending Regulations are made by the Governor-General in accordance with the requirements of subsection 124(1) of the Act.
   

Attachment A

Details of the Defence Amendment (RCDVS Implementation) Regulations 2025

Section 1 Name

1.              This section provides for the name of the Defence Amendment (RCDVS Implementation) Regulations 2025 (Amending Regulations).

Section 2 Commencement

1.              This section provides that the Amending Regulations commence on the day after they are registered on the Federal Register of Legislation.

Section 3  Authority

1.              This section provides that the Amending Regulations are made under the Defence Act 1903.

Section 4  Schedules

1.              This section provides that instruments are amended in accordance with applicable items in the schedules to the Amending Regulations.

Schedule 1—Amendments

Part 1—Early end of service

Defence Regulation 2016

1.              This Part amends the Defence Regulation 2016 (Defence Regulation) to strengthen the Australian Defence Force’s (ADF) response to sexual violence committed by members of the Defence Force (Defence members). These amendments clarify the grounds and processes for ending service, particularly in cases of sexual violence. This Part also creates the requirement for decision makers to consider mental health considerations relevant to conduct that has prompted the process for early end of service of a member, or at the time of the proposed early end of service of a member.   
2.              These amendments seek to implement measures in response to key parts of the Royal Commission into Defence and Veteran Suicide (RCDVS) Final Report, specifically Recommendations 21, 22 and 31.
3.              Recommendation 21 recommended that a ‘presumption’ of discharge be implemented for where Defence members have been found to have engaged in certain forms of sexual violence. The Government agreed to implement this recommendation subject to the requirements of fair process. This recommendation reflects an incompatibility with service of Defence members found to have engaged in that conduct.
4.              Recommendation 22 recommended that Defence members who are convicted of sexual and related offences should be mandatorily separated from service, subject to any legislative barriers. The Government agreed to implement this recommendation. The mechanism for implementing this recommendation is to mandate the initiation of separation proceedings, ensuring compliance with obligations in respect of procedural fairness.
5.              Recommendation 31 recommended that it be mandatory for Defence, when recommending administrative termination, to consider how an ADF member’s mental health and/or role that mental health may have played in the behaviour that attracted administrative action. The Government agreed to implement Recommendation 31, to consider how mental health may have contributed to a Defence member’s poor conduct
6.          This Part also includes changes to update stigmatising terminology related to the term used to describe the early end of a Defence member’s service. This implements in part, Recommendation 63 of the RCDVS Final Report to which the Government agreed, to remove structural and cultural barriers to help seeking behaviour, which includes the removal of stigmatising language.

Item [1] – subsection 6(1)

1.          This item inserts new definitions under subsection 6(1).
2.          New definitions include: Australian court, Australian Tribunal, harass on the ground of sex, intimate image, and sexual violence.
   1.          Australian court. This term means a federal court or a court of a State or Territory.
   2.          Australian Tribunal. This term means a tribunal of the Commonwealth, a State or Territory. This definition includes tribunals established under the Defence Force Discipline Act 1982. This includes a service tribunal, a reviewing authority and the Defence Force Discipline Appeal Tribunal.
   3.          Harass on the ground of sex. This term has the same meaning as in section 28AA of the Sex Discrimination Act 1984. The note to this definition clarifies other parts of speech and grammatical forms of the term ‘harass on the ground of sex’ would have a corresponding meaning. The note to this definition also refer the reader to section 18A of the Acts Interpretation Act 1901.
   4.          Intimate image. This term has the same meaning as in the Online Safety Act 2021.
   5.          Sexual violence. This term has the same meaning given by section 24A.
3.          Items 2 to 12 relate to section 24.

Item [2] – Section 24 (heading)

1.          This item repeals the current heading of section 24, and substitutes a new heading ‘Early end of service’.
2.          This more closely reflects the content and purpose of section 24.

Item [3] – Subsection 24(1)

1.          This item omits the word ‘terminate’ and substitutes the word ‘end’ in subsection 24(1).
2.          This amendment aligns to the intent of Recommendation 63, which directed Government to reduce the use of language that stigmatises and reduces help seeking behaviours.

Item [4] – After paragraph 24(1)(c)

1.          This item inserts a new paragraph (d) under subsection 24(1).
2.          New paragraph (d) allows the Chief of the Defence Force (CDF) to end the service of a member if the member has engaged in sexual violence.
3.          The effect of this item is to make clear that engaging in conduct of sexual violence is an independent reason or ‘ground’ to end a member’s service early. The CDF does not need to be satisfied that the member’s service is not in the interests of the Defence Force (under paragraph 24(1)(c)), as the CDF is permitted to end the service of a member for the reason that the member has engaged in sexual violence.
4.          The RCDVS noted that sexual violence incidents create particular risks to safety, health and wellbeing, including the risk of suicide and suicidality. The RCDVS Final Report also noted that there must be clear and consistent policy requirements related to the handling and management of sexual violence incidents.

Item [5] – Subsection 24(1) (at the end of the note)

1.          This item adds ‘For sexual violence, see section 24A.’ to the end of the note to subsection 24(1). This refers the reader to section 24A for further detail about sexual violence.

Item [6] – Subsection 24(2)

1.          This item repeals subsection 24(2) and substitutes a new subsection 24(2).
2.          New subsection 24(2) provides that the CDF must not end the service of a member under subsection (1) unless the member is given notice of the proposed ending of the member’s service, and at least 21 days to provide a written response.
3.          The effect of this item is to clarify that the CDF cannot end the service of a member, unless the member is given notice and 21 days to respond to the notice in writing. Section 30 provides further detail about the content of the notice to be provided to the Defence member.
4.          The effect of this amendment is that Defence members have at least 21 days within which they can provide a written response after being notified of a decision to end their service. Extending the time period provides greater procedural fairness to a member, given the seriousness of a decision to end service early, and the potential stress it can put on the Defence member. This also allows the member additional time to obtain any legal assistance in preparing a response, and additional time to prepare their response.

Item [7] – After subsection 24(2)

1.          This item inserts a new subsection (2A) after subsection 24(2).
2.          New subsection (2A) provides that, without limiting the operation of subsection 24(2), if the CDF is satisfied that a member has engaged in sexual violence, the CDF must:
   1.          Give the member notice of the ending of their service and at least 21 days to provide a written response to that notice.
   2.          Ensure that the notice sets out the reason mentioned in paragraph 24(1)(d) as a reason for the proposed ending of service. This is whether or not the notice sets out any other reason.
3.          New subsection 24(2A) also include two notes.
   1.          Note 1 clarifies that the circumstances in which the CDF may be satisfied that a member has engaged in sexual violence are set out in subsection 24A(5).
   2.          Note 2 refers the reader to section 30, which outlines the requirements for providing notice to members.
4.          The effect of this new item is to mandate that a notice for early end of service be must issued if the CDF is satisfied that the member has engaged in sexual violence. The member would have at least 21 days to provide a written response to that limit. The 21 day time limit is consistent with other notice periods and gives members greater procedural fairness. 

Item [8] – Subsection 24(3)

1.          This item omits the phrase ‘notice is not required to be given under subsection (2)’ and substitutes the phrase ‘subsections (2) and (2A) do not apply’ in subsection 24(3).
2.          This is a consequential amendment as a result of item 12 that inserts subsection (3A) under section 24.

Item [9] – Paragraphs 24(3)(b) and (c)

1.          This item omits the phrase ‘the termination decision is made in relation to a member who’ and substitutes the phrase ‘the member’ in paragraph 24(3)(b) and paragraph 24(3)(c).  
2.          The effect of this item is to remove the reference to termination.

Item [10] – At the end of paragraph 24(3)(c)

1.          This item adds the phrase ‘under subsection (2) or (2A)’ at the end of paragraph 24(3)(c).
2.          This is a consequential amendment as a result of items that amend subsection 24(2) and insert subsection (2A).

Item [11] – After subsection 24(3)

1.          This item inserts a new subsection (3A) after subsection 24(3).
2.          New subsection (3A) provides that, to avoid doubt, even if a notice is given to a member in accordance with subsection (2) or (2A), the CDF retains the discretion about whether to end the service of a member under subsection (1).
3.          The effect of this item is to clarify that irrespective of a notice being given, the CDF still has the discretion to decide whether or not to end a member’s service under subsection (1). This allows members to be afforded procedural fairness in relation to a proposed decision to end their service early.

Item [12] – Subsection 24(4)

1.          This item repeals the current subsection 24(4) and substitutes a new subsection 24(4).
2.          New subsection 24(4) provides that, if subsection (2) applies, the CDF must not end a member’s service on the grounds of redundancy earlier than five weeks after the date of the notice, unless the member agrees to an earlier ending of the member’s service. This restriction does not apply if the member is serving a probationary period.
3.          The purpose of this new subsection is to ensure that members affected by redundancy are given a minimum notice period of five weeks, allowing adequate time to respond or make arrangements, unless they choose to leave earlier.

Item [13] – After section 24

1.          This item inserts a new section 24A after section 24.

Section 24A – Sexual violence

1.          New section 24A defines what constitutes sexual violence and outlines how the CDF may determine whether a member has engaged in such conduct for the purposes of section 24.
2.          Subsection (1) sets out that a person engages in sexual violence if they participate in sexual activity involving one or more other people, and one of the following applies:
   1.          Consent from one or more of the other people is not freely given or obtained.
   2.          Consent from one or more of the other people is withdrawn during the sexual activity.
   3.          One or more of the other people is unable to give consent, whether due to age or any other reason.
3.          Subsection (2) expands the definition of sexual violence to also include sexual assault, sexual abuse, abuse that involves making or sharing an intimate image, and sexual harassment or harassment on the ground of sex. A person engages in sexual violence if they engage, attempt to engage, or threaten to engage in any of this type of conduct.
4.          The note to subsection (2) directs the reader to subsection 6(1) for the definitions for intimate image, sexually harass and harass on the ground on sex.
5.          Subsection (3) further expands the definition of sexual violence to include conduct that is the same as, or substantially similar to, conduct that constitutes an offence under Parts 3, 3A, 4 or 5 of the Crimes Act 1900 (ACT), as in force immediately before this section commenced. This conduct constitutes sexual violence even if the person has not been found guilty of, or been convicted of, an offence in relation to the conduct by an Australian court.
6.          Subsection (4) clarifies that subsections (1), (2), and (3) operate independently and do not limit each other. This means that conduct may fall under more than one of these definitions and be considered sexual violence.
7.          Subsection (5) outlines how the CDF may be satisfied that a member has engaged in sexual violence for the purposes of section 24. It provides for two pathways:
   1.          Under paragraph (a), the CDF may be satisfied if an Australian court or an Australian tribunal has made a finding that the member engaged in certain conduct, and the CDF is satisfied that the conduct amounts to sexual violence.
   2.          Under paragraph (b), the CDF may also be satisfied if a person or body other than a court or tribunal has made a finding following a process that provided procedural fairness to the member, that the member engaged in certain conduct. The CDF must then be satisfied, based on that finding and any other relevant information, that the member engaged in the conduct and the conduct constitutes sexual violence.
8.          The effect of this new section is to ensure that the CDF has a clear and flexible framework for identifying when a member’s conduct amounts to sexual violence, including through formal findings or other fair processes, even where criminal proceedings have not occurred.

Item [14] – Before subsection 30(1)

1.          This item inserts a new subsection 30(1A) before subsection 30(1).
2.          New subsection (1A) provides that section 30 applies in circumstances where this Part either requires notice of an action to be given to a member or prohibits an action from being taken unless such notice is given.
3.          The effect of this new subsection is to clarify the scope of section 30, and to ensure that its procedural requirements apply consistently whenever notice provisions are triggered under this Part.

Item [15] – Subsection 30(1)

1.          This item omits the phrase ‘If a provision of this Part requires notice of an action to be given to a member, the notice must’ and substitutes the phrase ‘The notice must’ in subsection 30(1).
2.          This is a consequential amendment as a result of item 14 that inserts a new subsection 30(1A). This item clarifies and avoids unnecessary repetition.

Item [16] – After paragraph 30(1)(c)

1.          This item inserts a new paragraph (ca) under subsection 30(1).
2.          New paragraph 30(1)(ca) requires that the notice invite the member to provide, as part of their written response, any evidence of a current or past mental health condition that may be relevant to the decision about whether to take the proposed action. This new paragraph ensures that the member is aware that they are able to provide evidence of mental health conditions that may be relevant to the decision-making process.
3.          The effect of this item is to ensure that mental health considerations are explicitly factored into the decision-making process. This gives effect to RCDVS Recommendation 31 insofar as it is mandatory when issuing a notice of proposed early separation from service, to invite a member to provide information about the impact of a current or previous mental health condition, and its affect upon the member as a result of the proposed early ending of service, or the role that condition may have played in the behaviour that attracted administrative action. While Defence member’s may provide information about their general health and wellbeing in responding to a notice under current section 30, this amendment invites specific information about a diagnosed mental health condition, to facilitate decision making in a way that better supports mental and physical wellbeing through the separation process.  

Item [17] – At the end of subsection 30(1)

1.          This item adds a note at the end of subsection 30(1).
2.          The note clarifies that for the purpose of paragraph 30(1)(ca), a member’s current or past mental health condition may be relevant to the decision because it could have influenced the member’s past behaviour, or because it may affect how the proposed action would impact the member.
3.          Together, items 16 to 17, aim to strengthen procedural fairness by ensuring that mental health conditions are considered when decisions affecting a member’s service are being made.

Part 2—Redress of grievances 

1.          This Part amends the Defence Regulation to clarify that a redress of grievance (ROG) process is intended to ensure as far as is practicable that the correct and preferable action is taken to redress the member’s grievance, and extends the time to submit a ROG in relation to early end of service decisions.
2.          These amendments implement, in part, RCDVS recommendations 32, 52 and 53.
3.          The Government agreed, in response to Recommendation 32, to introduce an enhanced merits review process for early end of service decisions. The RCDVS noted that reviews by the Inspector-General of the Australian Defence Force (Inspector-General ADF) focus on ensuring that the administrative process has been correctly followed, as opposed to reviewing whether a judgment was made on reasonable and fair grounds. These amendments make clear that the review process is intended to consider the complaint having regard to the correct and preferable action, which requires a balancing of the reasonableness and fairness to the member with the service interest in taking a certain action.
4.          While the RCDVS aimed to clarify that the ROG process for early end of service decisions should include a merits review, this amendment extends that requirement to all ROG processes to ensure fairness.
5.          Recommendation 52 included, among other things, that the Inspector-General ADF was required to conduct a review in the nature of a merits review and determine, in their view, the correct or preferable decision when dealing with a ROG for an early end of service decision.
6.          These amendments clarify the role of the ROG process being in the nature of a merits review, while preserving the Inspector-General ADF’s independent functions in the conduct of ROG. The amendments confirm that ROG processes involve a merits-like reassessment of original decisions. This means that ROG decision-makers, including commanding officers, authorised complaint recipients, and the Inspector-General ADF, are empowered to undertake a fresh evaluation of the relevant facts, legal framework, and policy considerations, and determine the correct or preferable action (which may be a decision) in light of all available information.
7.          While the Inspector-General ADF is empowered to conduct a merits-like review of the complaint if they decide to consider the complaint, the actions taken by the Inspector-General ADF as outlined in section 45 remain unchanged. That is, the Inspector-General ADF may make findings, recommendations, and report upon the complaint, but may not take action as described under section 42. This maintains the current independence and structure of the ROG process, while enhancing the robustness of the review mechanism.
8.          Recommendation 53 required that the Defence Regulation be amended to give members 21 days to make a complaint after being notified of a decision to end their service early. The amendments directly give effect to this recommendation by changing the number of days that a Defence member may have to make a complaint from 14 days to 21 days. Additionally, the amendments allow the Inspector-General ADF to extend this time period if satisfied that exceptional circumstances exist.

Item [18] – Section 38

1.          This item repeals current section 38 and substitutes a new section 38.

Section 38 – Objects of this Part

1.          New section 38 provides that the objects of this Part include providing a process for a member to seek redress of a grievance relating to a decision, act or omission that relates to their service in the Defence Force, and ensuring, as far as practicable, that the correct and preferable action is taken to redress the member’s grievance.
2.          The effect of this item is to expand the objects of Part 7 to clarify the purpose of the ROG process is to ensure that the correct and preferable action is taken (as far as practicable) to redress the member’s grievance.

Item [19] – Subsection 41(2)

1.          This item repeals current subsection 41(2) and substitutes a new subsection 41(2).

1.          New subsection 41(2) amends the time limit for a member to make a complaint under Part 7 where that complaint relates to a decision to end the member’s service. The member would need to make a complaint within 21 days after the member was notified of the decision, or if the Inspector-General ADF is satisfied that exceptional circumstances exist, the member has the time allowed by the Inspector-General ADF.

1.          The effect of this amendment is that Defence members have a 21 day time limit within which they can make a complaint after being notified of a decision to end their service early. If exceptional circumstance exist, they may be granted an extension to this time limit by the Inspector-General ADF. This provision mirrors the power of the Inspector-General ADF to grant such an extension in exceptional circumstances for other ROG complaints under current section 41(3).
2.          This directly implements Recommendation 53 of the RCDVS Final Report. Extending the time period brings greater fairness to a member, given the seriousness of a decision to end service early, and the potential stress it can put on the Defence member. This also allows for the provision of legal assistance in preparing a ROG application, and additional time to prepare their complaint.

Item [20] – Section 43 (heading)

1.          This item repeals the current heading of section 43, and substitutes a new heading ‘Notifying Inspector-General ADF of complaint’. This more closely reflect the content and purpose of section 43.

Item [21] – Paragraph 43(1)(a)

1.          This item repeals current paragraph 43(1)(a) and substitutes a new paragraph.
2.          New paragraph 43(1)(a) clarifies that the process described in this section is a notification by the commanding officer or authorised complaint recipient to the Inspector-General ADF, rather than a referral.

Item [22] – Paragraph 43(1)(b)

1.          This item omits the phrase ‘the complaint has been referred to the Inspector-General ADF’ and substitutes the phrase ‘the Inspector-General ADF has been notified of the complaint’ in paragraph 43(1)(b).

Item [23] – After section 46

1.          This item inserts a new section 46A after section 46.

Section 46A – Correct and preferable action to redress member’s grievance

1.          New section 46A requires a commanding officer, an authorised complaint recipient and the Inspector-General ADF to have regard to the objects of Part 7 mentioned in paragraph 38(b) in certain circumstances. This object ensures, as far as practicable, that the correct and preferable action is taken to redress the member’s grievance.
2.          This requirement applies in two circumstances.
   1.          The first circumstance is when a commanding officer or authorised complaint recipient is deciding what action to take under section 42 in response to a complaint being made by a member.
   2.          The second circumstance is when the Inspector-General ADF is deciding whether to consider a complaint or continue to consider a complaint, is actively considering such a complaint, or is deciding what action to take after considering a complaint. The action referred to in this circumstance relates to the actions set out in section 45.

Item [24] – Paragraph 47(1)(a)

1.          This item omits the phrase ‘if the complaint has been given to the Inspector-General ADF’ and substitutes the phrase ‘if the Inspector-General ADF has been notified of the complaint’ in paragraph 47(1)(a).
2.          This is a consequential amendment to reflect that the Inspector-General ADF is notified of a complaint.

Item [25] – Paragraph 47(1)(b)

1.          This item omits the phrase ‘if the complaint has been given to the Inspector-General ADF’ and substitutes the phrase ‘otherwise’ in paragraph 47(1)(b).
2.          This is a consequential amendment that complements amendments to paragraph 47(1)(a).

Item [26] – Subsection 47(2)

1.          This item repeals current subsection 47(2) and substitutes a new subsection 47(2). New subsection 47(2) clarifies what is required of the commanding officer or authorised complaint recipient where a complaint has been withdrawn but the Inspector-General ADF has not been notified of the complaint.
2.          The commanding officer or authorised complaint recipient is not be required to notify the Inspector-General ADF of the complaint, but is required to inform the Inspector-General ADF that the complaint was made and subsequently withdrawn.
3.          The intent of this amendment is to ensure transparency and record-keeping, even where the Inspector-General ADF was not initially involved in the complaint process.

Part 3—Updating terminology and other amendments

1.          This Part amends language in the Defence Regulation with the intention of reducing stigma and reducing structural and cultural barriers to help seeking by removing references to ‘termination’ to describe involuntary end of service in sections 21, 24, 26, 28 and 41 of the Defence Regulation. Terminology used throughout the Defence Regulation has been changed to consistently reflect the concept of service ending, rather than previous variations that referred to termination. For example, the terms ‘terminate’, ‘terminated’, and ‘termination’ are substituted with ‘end’, ‘ended’ and ‘ending’.
2.          While not directly recommended by the RCDVS Final Report, the change of language is consistent with the intent of Recommendation 63, which sought to reduce the use of language that stigmatises and reduces help seeking behaviour.
3.          This Part also extends response timeframes from 14 days to 21 days for members notified of decisions including decisions to reduce rank, to transfer them from the Permeant Forces to the Reserves and to request a review of a reviewable decision under Part 6A. These amendments promotes procedural fairness and enhance flexibility by giving members more time to seek advice and prepare a considered response or request a review.
4.          This Part also makes a number of minor technical and typographical corrections in various provisions in the Defence Regulation.

Item [27] – Subsection 14(2)

1.          This item omits the phrase ‘14 days’ and substitutes the phrase ‘21 days’ in subsection 14(2). The effect of this amendment is that Defence members have at least 21 days, rather than 14 days, to provide a written response after being notified of a decision to reduce their rank under subsection 14(1).
2.          Extending the time period provides greater procedural fairness to Defence members, given the seriousness of a decision that can significantly impact their career and livelihood. It also acknowledges the potential stress such a decision may cause and ensures Defence members have adequate time to seek legal assistance, gather relevant information, and prepare a considered written response.

Item [28] – Subsection 16(2)

1.          This item omits the phrase ‘14 days’ and substitutes the phrase ‘21 days’ in subsection 16(2). The effect of this amendment is that Defence members have at least 21 days, rather than 14 days, to provide a written response after being notified of a decision to transfer them from the Permanent Forces to the Reserves under subsection 16(1).
2.          Extending the response period promotes greater fairness, given the significant impact such a transfer can have on a member’s career and personal circumstances. It also allows members additional time to seek legal advice, consider their options, and prepare a considered written response.
3.      Items 29 to 31 amend to section 21. 

Item [29] – Paragraph 21(3)(b) 

1.      This item omits the word ‘terminated’ and substitutes the word ‘ended’ in paragraph 21(3)(b).

Item [30] – Paragraph 21(3)(b) 

1.      This item omits the word ‘termination’ and substitutes the word ‘end’ in paragraph 21(3)(b).

Item [31] – Paragraph 21(3)(c)

1.      This item omits the phrase ‘is terminated (however described)’ and substitutes the word ‘is ending (however that ending is described)’ in paragraph 21(3)(c).
2.      Items 32 to 35 amend section 26.

Item [32] – Section 26 (heading)

1.      This item repeals the current heading of section 26, and substitutes a new heading.

The effect of this item is that the heading of section 26 changes from ‘Change of reason for end of service’ to ‘Treating service as having ended for a different reason’.

1.      This amendment reflects that service of a Defence member may be ended for a number of reasons.

Item [33] – Paragraph 26(1)(a) 

1.      This item omits the phrase ‘has been terminated or has ended’ and substitutes the phrase ‘has been ended or has ended for a particular reason’ in paragraph 26(1)(a).

Item [34] – Paragraph 26(1)(b) 

1.      This item omits the phrase ‘could properly have been terminated or ended’ and substitutes the phrase ‘could properly have been ended, or been ended’ in paragraph 26(1)(b).

Item [35] – Paragraph 26(2)

1.      This item omits the phrase ‘having been terminated or ended’ and substitutes the phrase ‘having ended, or been ended’ in subsection 26(2).
2.      Items 36 to 40 amend section 28.

Item [36] – Subparagraph 28(1)(a)(i)

1.      This item omits the phrase ‘of a proposed termination of the member’s service under subsection 24(2)’ and substitutes the phrase ‘, in accordance with subsection 24(2) or (2A), of a proposed ending of the member’s service’ under subparagraph 28(1)(a)(i).

Item [37] – Subparagraph 28(1)(a)(ii)

1.      This item omits the word ‘termination’ and substitutes the phrase ‘ending of the member’s service’ in subparagraph 28(1)(a)(ii).

Item [38] – Subparagraph 28(1)(b)(ii)

1.      This item omits the words ‘his or her service will not be terminated’ and substitutes the words ‘the member’s service will not be ended’ in subparagraph 28(1)(b)(ii).

Item [39] – Paragraph 28(1)(c)

1.      This item omits the word ‘terminated’ and substitutes the word ‘end’ in paragraph 28(1)(c).

Item [40] – Paragraphs 28(3)(a) and (b)

1.      This item repeals current paragraphs 28(3)(a) and (b) and substitutes new paragraphs.
2.      New paragraph 28(3)(a) provides that, for a suspension under paragraphs 28(1)(a) or (c), the proposed ending of the member’s service, or the decision to end the member’s service, will not proceed or take effect.
3.      New paragraph 28(3)(b) provides, for a suspension under paragraph 28(1)(b), that the member’s service will not be ended because of the positive test result.

Item [41] – Subsection 37G(2)

1.      This item omits the phrase ‘14 days’ and substitutes the phrase ‘21 days’ in subsection 37G(2). The effect of this amendment is that applicants have 21 days, rather than 14 days, to request a review of a decision under subsection 37G(1).
2.      Extending the timeframe provide greater fairness and flexibility for applicants, given the seriousness of decisions relating to stop sexual harassment directions. It acknowledges the potential stress and complexity involved in these matters and ensures that applicants have sufficient time to seek advice, consider their options, and request a review of the reviewable decision.

Item [42] – Paragraphs 40(2)(c)

1.      This item omits ‘1985’ and substitutes ‘2018’ in paragraph 40(2)(c).
2.      This is a minor technical correction to reflect the current Defence (Inquiry) Regulations 2018 which repealed the Defence (Inquiry) Regulations 1985.

Item [43] – Subsection 41(3)

1.      This item omits the word ‘terminate’ and substitutes ‘end’ in subsection 41(3). 

Item [44] – Section 70 (table heading)

1.      This item omits ‘Part XIA’ and substitutes ‘Part IXA’ in the table in section 70.
2.      This amendment is a minor typographical correction to align the reference to the relevant part of the Defence Act 1903.

Part 4—Application provisions

1.      This Part amends current Part 17 of the Defence Regulations to insert application provisions as a result of these Amendment Regulations.

Item [45] – Part 17 (heading)

1.      This item omits ‘Transitional’ and substitutes ‘Application and transitional’ in the heading of Part 17.
2.      This more closely reflects the content and purpose of Part 17 as a result of item 43 amendments that insert application provisions, not just transitional arrangements.

Item [46] – At the end of Part 17

1.      This item adds a new Division 3 at the end of Part 17.

Division 3—Amendments made by the Defence Amendment (RCDVS Implementation) Regulations 2025

1.      New Division 3, titled ‘Amendments made by the Defence Amendment (RCDVS Implementation) Regulations 2025’ contains five new sections.

Section 96 – Definitions

1.      Section 96 provides that in Division 3, the term amending instrument means the Defence Amendment (RCDVS Implementation) Regulations 2025. This new definition is relevant for sections 97, 98, 99 and 100.

Section 97 – Early end of service

Section 97 clarifies how the amendments to early end of service in relation to sexual violence provisions apply.

Subsection 97(1) provides that, subject to subsection 97(2), amendments to section 24 that relate to sexual violence engaged in by a member apply in relation to sexual violence engaged in before, on, or after the commencement of the amending instrument.

Subsection 97(2) provides that proposed paragraph 92(2)(b) applies in relation to a notice that is given to a member on or after the commencement of the amending instrument.

For example, if a member engaged in sexual violence before the commencement of the amending instrument, and the CDF had given that member a notice of early end of service before the commencement of the amending instrument, the member would have at least 14 days to provide a written response. If the CDF had given that member a notice of early end of service on or after the commencement of the amending instrument, the member would have at least 21 days to provide a written response.

Section 98 – Service in the Defence Force—requirement for notices

1.      Section 98 clarifies how the amendments to section 30 apply.
2.      The amendments to section 30 apply in relation to a notice given to a member on or after the commencement of the amending instrument. If the notice relates to conduct of the member, the amendments to section 30 apply whether the conduct occurred before, on or after the commencement of the amending instrument.

Section 99 – Redress of grievances—time for making complaint

1.      Section 99 clarifies how the amendments to subsection 41(2) apply. The amendments apply in relation to a decision to end a member’s service that is made on or after the commencement of the amending instrument. If the decision relates to conduct of the member, the amendments to subsection 41(2) apply whether the conduct occurred before, on or after the commencement of the amending instrument.

Section 100 – Other changes to time periods

1.      Section 100 clarifies how the other changes to time periods would apply.
2.      Subsection 100(1) provides that the amendments to subsection 14(2) and subsection 16(2) made by Part 3 of Schedule 1 of the amending instrument apply in relation to notices given on or after the commencement of the amending instrument.
3.      Subsection 100(2) provides that the amendments to subsection 37G(2) made by Part 3 of Schedule 1 of the amending instrument apply in relation to a reviewable decision that is made under subsection 37G(1) of this instrument on or after the commencement of the amending instrument.
   

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Amendment (RCDVS Implementation) Regulations 2025

The Disallowable 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 Defence Amendment (RCDVS Implementation) Regulations 2025 (the RCDVS Implementation Regulations) amend the Defence Regulation 2016 to implement a number of recommendations made by the Royal Commission into Defence and Veteran Suicide (RCDVS) Final Report. These recommendations relate to early end of service, redress of grievances and removal of stigmatising terminology to better reflect current Defence policies and practices.

Relevantly, the RCDVS Implementation Regulations:

• creates an additional power to end the service of a Defence member if they have engaged in sexual violence;
• where the Chief of the Defence Force (CDF) is satisfied that a member has engaged in sexual violence, require the CDF to give the member notice of the ending of the member’s service, and in doing so, the CDF must provide the member at least 14 days to provide a written response to that notice, and ensure that the notice sets out the reason for the proposed ending of the member’s service;
• requires that a notice about making a decision to end a member’s service early invites the member to provide evidence of any current or past mental health condition that may be relevant to a decision about whether to take action; and
• extends the period of time that a Defence member has to submit a redress of grievance complaint in relation to a decision to end the member’s service.

The RCDVS Implementation Regulations also make other minor technical, typographical and consequential amendments.

Human rights implications

The RCDVS Implementation Regulations engages the following rights:

• the right to the enjoyment of just and favourable conditions of work under Articles 6 and 7 of the International Covenant on Economic Social and Cultural Rights (ICESCR);
• the right to physical and mental health under article 12 of the ICESCR; and
• the right of women not to be discriminated against based on gender under Articles 2, 3 and 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)  and Article 26 of the International Covenant on Civil and Political Rights (ICCPR); and
• the right to privacy in Article 17 of the ICCPR.

The rights to the enjoyment of just and favourable conditions of work

Article 6 of the ICESCR requires the State Parties to the Covenant to recognise the right to work and to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in Statement of Compatibility with Human Rights Article 6(1) encompasses the need to provide the worker with just and favourable conditions of work. Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable working conditions. While Defence members are not employees, the RCDVS Implementation Regulations further refines and clarifies the framework for personnel decision-making in the Defence Force as it relates to ending service of Defence members.

The RCDVS Implementation Regulations positively engages these rights by strengthening the Australian Defence Force’s (ADF) response to sexual violence. The RCDVS Implementation Regulations does this by clarifying and expanding the grounds and processes for ending service where a member has engaged in conduct of sexual violence. These changes implement recommendations of the RCDVS, including introducing a presumption of discharge for members found to have engaged in sexual violence and requiring consideration of mental health conditions in administrative termination decisions.

By addressing sexual violence and improving review mechanisms, the RCDVS Implementation Regulations promotes a safer and more respectful working environment for Defence members. This supports the enjoyment of just and favourable working conditions by reducing risks of harm and ensuring accountability for serious misconduct.

The RCDVS Implementation Regulations also enhances procedural fairness through clearer review processes and extended timeframes for responding to complaints, contributing to transparency and fairness in service decisions. Changes to language (e.g. replacing “termination” with “end of service”) aim to reduce stigma and cultural barriers to help-seeking, further supporting the right to work in conditions that respect dignity and mental health.

Accordingly, the RCDVS Implementation Regulations are compatible with the rights in Articles 6 and 7 of the ICESCR, as it advances protections for safe and fair working conditions within the ADF, and the broader Defence environment.

The right to physical and mental health

Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, extending to underlying determinants of health, such as safe and healthy working conditions.

The RCDVS Implementation Regulations advances the protection and promotion of physical and mental health within the ADF through several key measures. It strengthens responses to sexual violence, requires consideration of mental health in decision-making, reduces stigma and barriers to help-seeking, and enhances review processes.

By clarifying and expanding the grounds for ending service early in cases where a member has engaged in sexual violence, the RCDVS Implementation Regulations aims to foster a safer working environment, reducing risks of harm and trauma for ADF members. It also introduces a requirement for notices to invite members to provide evidence of any current or past mental health conditions relevant to proposed actions. This ensures that mental health considerations are explicitly factored into decision-making, supporting fairness, mental health and wellbeing.

Further, the RCDVS Implementation Regulations improves the redress of grievance process by expanding the objectives to include ensuring the correct and preferable action is taken to redress a member’s complaint. It also extends the timeframe for lodging grievances relating to a decision to end a member’s service from 14 to 21 days, or if the Inspector-General ADF is satisfied that exceptional circumstances exist, within the time allowed by the Inspector-General ADF. This gives members more opportunity to seek advice and prepare responses, therefore reducing stress and uncertainty, contributing positively to mental health outcomes.

The RCDVS Implementation Regulations also extends the time period from 14 to 21 days for persons notified of certain decisions, including decisions to reduce rank, to transfer them from the Permanent Forces to the Reserves and to request a review of a reviewable decision made under subsection 37G(1). Expanding these timeframes gives individuals more opportunity to seek advice, consider options, and prepare responses or request a review. The overall outcome of extending these timeframes is to reduce stress and uncertainty, therefore contributing positively to mental health outcomes.

Finally, amendments to language throughout the Defence Regulation to replace terms such as “termination” with “end of service”, are designed to reduce stigma and cultural barriers to help-seeking. This aligns with recommendations from the RCDVS, and international best practice, reinforcing Defence’s commitment to a supportive and respectful work environment.

Collectively, these measures promote conditions that safeguard physical and mental health, ensuring compatibility with Article 12 of the ICESCR.

The right of women not to be discriminated against based on gender

The CEDAW obliges State Parties to ensure effective protection of women against acts of discrimination (Article 2(c)), promote their full development and advancement (Article 3), and eliminate discrimination in employment to guarantee equal rights between men and women (Article 11). This includes equal remuneration, equal treatment for work of equal value, and fair evaluation of work quality.

Similarly, Article 26 of the ICCPR requires State laws to guarantee equal and effective protection against discrimination on grounds including sex.

The RCDVS Implementation Regulations supports these obligations by strengthening the ADF response to sexual violence and gender-based harassment. New section 24A defines sexual violence broadly to include not only non-consensual sexual activity but also sexual assault, sexual abuse, making or sharing intimate images, sexual harassment, and harassment on the ground of sex. The term “harass on the ground of sex” adopts the meaning in section 28AA of the Sex Discrimination Act 1984, with notes clarifying grammatical variations and referring to section 18A of the Acts Interpretation Act 1901. By explicitly incorporating these forms of conduct into the definition of sexual violence, the RCDVS Implementation Regulations ensures that serious gender-based discrimination and misconduct is addressed within Defence’s administrative framework.

The inclusion of harassment on the ground of sex reflects a commitment to eliminating discriminatory and harmful behaviours that disproportionately affect women and undermine their right to a safe and equitable workplace. These provisions empower the CDF to act where findings, whether by a court, tribunal, or other fair process, establish that a member engaged in such conduct. This ensures accountability even in cases where criminal proceedings have not occurred, reinforcing Defence’s one hundred percent action approach to sexual violence.

The right of privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home and correspondence. This includes respect for informational privacy, including in respect of storing, using, and sharing private information and the right to control the dissemination of personal and private information. Privacy guarantees a right to secrecy from the publication of personal information. It also prohibits unlawful attacks on a person’s reputation.

The use of the term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR, and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ to imply that any limitation must be proportionate and necessary in the circumstances. The right to privacy can be limited by necessity in a democratic society in the interests of national security or the protection of the rights and freedoms of others.

The RCDVS Implementation Regulations amends section 30 of the Defence Regulation to require that a notice about making a decision to end a member’s service early invites the member to provide evidence of any current or past mental health condition that may be relevant to a decision about whether to take action. This requirement ensures that the notice given the member invites the member to include such information in their written response. This does not require the member to provide any such personal information. Through this consent-based approach, the member has control over the extent to which they wish to present additional health information to the decision-maker to consider in the context of an administrative decision-making process.

Accordingly, the RCDVS Implementation Regulations are compatible with Article 17 of the ICCPR, as it safeguards the right to privacy, while providing the option to the Defence member to provide private information as part of the decision-making process.

Conclusion

The RCDVS Implementation Regulations are compatible with human rights because it promotes the protection of human rights.