Defence Force Amendment Regulations 2003 (No. 1) 2003 No. 245
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 245
Defence Force Amendment Regulations 2003 (No. 1)
Issued by the authority of the Minister for Veterans' Affairs
Defence Force Amendment Regulations 2003 (No. 1)
Subsection 124(1) of the Defence Act 1903 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; and, amongst other things, in relation to the declaration as a prohibited area of a place used or intended to be used for a purpose of defence, the prohibition of a person entering, being in or remaining in the prohibited area without permission and the removal of any such person from the area.
The Defence Force Amendment Regulations 2002 (No. 1) amended a number of measures in the Defence Force Regulations 1952 (the Principal Regulations). Some of the amendments completed the exercise of harmonising criminal offence provisions contained in the Principal Regulations so that they were consistent with the Criminal Code.
One of the measures amended was regulation 53 (offences relating to a defence practice area), and particularly subregulation 53(8) (as it is now numbered), which lists the people who can be found guilty of an offence when a vehicle, vessel or aircraft is found in a defence practice area either at a time specified in an authorisation under subregulation 51(1), or in breach of a condition or permission given to that person to be in the area.
Subregulation 51(1) provides that the Chief of the Defence Force, the Secretary of the Department of Defence or a Service Chief may authorise the carrying out of a defence operation or practice in a defence practice area. Subregulation 51(2) provides that such authority must be in writing and must specify when the defence operation or practice will take place.
Under subregulation 53(8), as previously formulated (then numbered as subregulation 53(6)), the final sentence concluded "but an offender is not liable to be punished more than once in respect of the same offence". The amended subregulation 53(8) omitted this sentence.
The Senate Standing Committee on Regulations and Ordinances queried the Minister for Veterans' Affairs (the Minister), in her capacity as the Minister Assisting the Minister for Defence, as to whether this omission might render someone liable to be punished twice for the same behaviour.
Advice from the Criminal Law Division of the Attorney-General's Department suggested that, notwithstanding section 4C of the Crimes Act 1914, there was a possibility someone could be punished twice.
To remove any doubt about the matter, the Minister undertook to amend regulation 53 of the Principal Regulations.
The Act specifies no conditions that need to be met before the power to make the proposed regulations may be exercised.
Regulation 1 identifies these Regulations as the Defence Force Amendment Regulations 2003 (No. 1)
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 identifies the Regulations amended by Schedule 1 as the Defence Force Regulations 1952.
Schedule 1 makes the substantive amendments to the Regulations.
Item 1 inserts a new subregulation 53(8A), making clear that a person is not liable to be punished more than once in respect of the same offence.
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Overview
The Defence Force Amendment Regulations 2003 (No. 1) were introduced to amend the Defence Force Regulations 1952, addressing a potential legal ambiguity identified in the regulation concerning offences in a defence practice area. The regulation in question was Regulation 53, specifically subregulation 53(8), which previously omitted a sentence stating that an offender is not liable to be punished more than once for the same offence. This omission raised concerns that someone could be punished twice for the same behaviour, despite the existence of section 4C of the Crimes Act 1914. The regulations were enacted under the authority of the Minister for Veterans' Affairs, acting in her capacity as the Minister Assisting the Minister for Defence, following advice from the Criminal Law Division of the Attorney-General's Department. The policy objective was to ensure clarity and legal certainty, preventing any possibility of double punishment for the same offence in the context of defence practice areas.
Scope and Application
The Defence Force Amendment Regulations 2003 (No. 1) apply to any person or entity involved in activities within defence practice areas, particularly those who might contravene the conditions set by the Defence Force Regulations 1952. These regulations are essential in maintaining the integrity of defence operations and ensuring compliance with the Defence Act 1903. The geographic reach of these regulations is national, as they pertain to defence activities conducted across Australia. The regulations specifically address the potential for double punishment by clarifying that an offender cannot be punished more than once for the same offence when a vehicle, vessel, or aircraft is found in a defence practice area at an unauthorised time or in breach of conditions. There are no exclusions or exemptions stated in the text, and the regulations extend the application of the Defence Force Regulations 1952 by amending subregulation 53(8) to include a clear statement on the limitation of punishment for the same offence.
Key Provisions
The Defence Force Amendment Regulations 2003 (No. 1) (Regulations) aim to amend the Defence Force Regulations 1952 (Principal Regulations) to ensure consistency with the Criminal Code, particularly concerning offences in defence practice areas. Regulation 1 identifies these Regulations, while Regulation 2 states that they commence on gazettal. Regulation 3 identifies the Principal Regulations as the ones amended by Schedule 1, which contains the substantive amendments.
Under the Regulations, the Chief of the Defence Force, the Secretary of the Department of Defence, or a Service Chief may authorise defence operations or practices in a defence practice area (Regulation 51). Such authorisation must be in writing and specify the time of the operation or practice (Regulation 51(2)). Regulation 53(8A) clarifies that a person is not liable to be punished more than once in respect of the same offence, addressing concerns raised by the Senate Standing Committee on Regulations and Ordinances.
The Regulations impose obligations on authorised persons to ensure that any defence operations or practices are conducted in accordance with the specified authorisation. The amended Regulation 53(8A) ensures that any person found guilty of an offence in a defence practice area cannot be punished more than once for the same offence, thereby avoiding potential double punishment.
Breach of the Regulations may result in civil or criminal consequences. Under Regulation 53, individuals found guilty of offences relating to a defence practice area may face penalties as prescribed by law. The maximum penalties depend on the severity of the offence and are determined according to the relevant legislation, such as the Criminal Code. Failure to comply with the Regulations may lead to enforcement actions, including fines or imprisonment, as applicable under the relevant laws.