EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 175
Issues by the authority of the Minister for Defence Science and Personnel
Defence Act 1903
Defence Force Amendment Regulations 2008 (No. 2)
Subsection 124(1) of the Defence Act 1903 (the Act) provides, in part, that the
Governor-General may make regulations not inconsistent with the Act, prescribing all matters that by the Act are required or permitted to be required, or that are necessary or convenient to be prescribed, for securing the good government of the Australian Defence Force (ADF) or for carrying out or giving effect to the Act.
Part 15 of the Defence Force Regulations 1952 (the Principal Regulations) provides that a member of the ADF, who has a grievance concerning a decision, act or omission relating to his or her service, may make a complaint to his or her commanding officer in the form of a Redress of Grievance (ROG). The purpose of the ROG process is to ensure that decisions affecting members’ rights, working conditions and careers are made fairly, impartially and according to law.
The Regulations correct a minor drafting error to ensure that changes made to the Principal Regulations on 1 May 2008 operate as intended.
The Defence Force Amendment Regulations 2008 (No. 1) were made on 1 May 2008 implementing the previous Government’s recommended improvements to the ADF ROG system in accordance with its response to the 2003 Senate Foreign Affairs, Defence and Trade References Committee inquiry into The effectiveness of Australia’s military justice system, delivered on 16 June 2005 (the Senate report). The Government’s response to the Senate report endorsed, and sought the implementation of, the accepted recommendations of the Review of the ADF Redress of Grievance System 2004 (ROG Review), a joint report by the Commonwealth Ombudsman and the Department of Defence.
Recommendation 4 of the ROG review required that ‘complaints regarding a process which seeks to anticipate a decision that hasn’t yet been made’ be excluded from the ROG process, on the basis that an existing ‘show cause’ process should be used in the first instance. This was implemented, in part, by the Defence Force Amendment Regulations 2008 (No. 2) in relation to:
a. administrative sanctions;
b. termination processes under Part VIIIA of the Defence Act 1903 for all members of the ADF; and
c. termination processes under Division 2, Part 2 of Chapter 9 of the Defence (Personnel) Regulations 2002.
However, the amendment in paragraph (c) as drafted applies only to officers (Division 2,
Part 2). It was not the policy intention that the existing ‘show cause’ process should only apply to officers.
The Regulations ensure that enlisted members (in Division 3 of Part 2) of the ADF are also required to use the ‘show cause’ process prior to submitting a ROG in relation to the termination process. Paragraph 75(2)(c) of the Principal Regulations have been amended to ensure that paragraph (c) applies to both officers and enlisted members of the ADF (by referring to ‘Part 2’ only).
The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
There has been no consultation in the making of this instrument as it relates to the management and service of members of the ADF.
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Overview
The Defence Force Amendment Regulations 2008 (No. 2) were enacted to correct a minor drafting error in the previously established Defence Force Amendment Regulations 2008 (No. 1), which implemented improvements to the Australian Defence Force's (ADF) Redress of Grievance (ROG) system. These amendments were made in response to recommendations from the 2003 Senate Foreign Affairs, Defence and Trade References Committee inquiry and the Review of the ADF Redress of Grievance System 2004. The primary issue the Regulations address is the exclusion of complaints regarding processes that anticipate a decision not yet made from the ROG process, instead directing these complaints to an existing 'show cause' process. The 2008 Regulations (No. 2) specifically aim to ensure that the 'show cause' process applies to both officers and enlisted members of the ADF concerning termination processes. Enacted by the authority of the Minister for Defence Science and Personnel under subsection 124(1) of the Defence Act 1903, the Regulations seek to maintain the integrity and fairness of the ADF's grievance resolution mechanisms.
Scope and Application
The Defence Force Amendment Regulations 2008 (No. 2) apply to all members of the Australian Defence Force (ADF), encompassing both officers and enlisted personnel, and pertain to their grievances concerning decisions, acts, or omissions relating to their service. These Regulations were introduced to correct a minor drafting error in the previously enacted Defence Force Amendment Regulations 2008 (No. 1), ensuring that the intended policy changes are effectively implemented. The amendments focus on excluding certain complaints from the Redress of Grievance (ROG) process, particularly those related to administrative sanctions, termination processes under the Defence Act 1903, and termination processes under the Defence (Personnel) Regulations 2002. The Regulations aim to streamline the grievance process by ensuring that a 'show cause' process is used before lodging a ROG, particularly for termination-related issues. This ensures the correct application of the policy to all ADF members, rectifying an oversight that initially limited the 'show cause' requirement to officers only. The Regulations operate within the jurisdictional scope of the Commonwealth and are subordinate instruments under the Defence Act 1903, providing specific details necessary for the proper functioning of the ADF's grievance mechanisms.
Key Provisions
The Defence Force Amendment Regulations 2008 (No. 2) (the Regulations) are made under subsection 124(1) of the Defence Act 1903 and are designed to correct a minor drafting error in the Defence Force Amendment Regulations 2008 (No. 1) which were enacted on 1 May 2008. These Regulations ensure that the changes made to the Principal Regulations are implemented as intended, particularly in relation to the exclusion of certain complaints from the Redress of Grievance (ROG) process. Specifically, the Regulations amend paragraph 75(2)(c) of the Principal Regulations to ensure that the 'show cause' process applies to both officers and enlisted members of the Australian Defence Force (ADF) when it comes to termination processes under Division 2, Part 2 of Chapter 9 of the Defence (Personnel) Regulations 2002.
The Regulations impose specific obligations on members of the ADF and their commanding officers. Members of the ADF who have grievances concerning decisions, acts, or omissions relating to their service must use the 'show cause' process before submitting a ROG. This means that for certain types of grievances, such as those regarding administrative sanctions, termination processes under Part VIIIA of the Defence Act 1903, and termination processes under Division 2, Part 2 of Chapter 9 of the Defence (Personnel) Regulations 2002, members must first engage with the 'show cause' process. This is intended to ensure that complaints are considered in the appropriate forum and that the ROG process is reserved for matters that have not been addressed through the 'show cause' process.
Failure to adhere to the requirements set out in the Regulations may lead to significant consequences for members of the ADF and their commanding officers. While the Regulations themselves do not explicitly outline specific offences or penalties for non-compliance, the Defence Force Regulations 1952 (the Principal Regulations) and the Defence Act 1903 provide a framework for potential disciplinary actions. For example, failure to follow the correct process for submitting a complaint could be considered a breach of service discipline, which might result in non-judicial or judicial disciplinary action. In severe cases, such breaches could lead to administrative separation or other punitive measures as prescribed by the Defence Act 1903 and the Defence Force Regulations 1952. The exact penalties would depend on the nature and severity of the breach, as well as the specific circumstances of the case.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and came into effect on the day after they were registered on the Federal Register of Legislative Instruments. The legislative framework established by these Regulations aims to ensure that the ADF operates within a clear and fair grievance resolution process, thereby upholding the principles of good governance and adherence to legal standards.