EXPLANATORY STATEMENT
SELECT LEGISLATIVE INSTRUMENT No. 131, 2015
Issued by the authority of the Minister for Defence
Defence Force Discipline Act 1982
Defence Force Discipline Amendment
(Prescribed Service Offences) Regulation 2015
Overview
Section 197 of the Defence Force Discipline Act 1982 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
On 30 June 2015, the Defence Legislation (Enhancement of Military Justice) Act 2015 (the Amending Act) received Royal Assent. The Amending Act creates a new service offence at section 47Q of the Act of Unauthorised use of a Commonwealth credit card. This offence was prosecuted under section 60 of the Financial Management and Accountability Act 1997, however, that Act was repealed on 30 June 2014.
Section 47Q of the Act has a maximum punishment of five years imprisonment. Any service offence that has a maximum punishment of greater than two years imprisonment is a prescribed offence under regulation 44 of the Defence Force Discipline Regulations 1985 (the Principal Regulations). Prescribed offences cannot be heard at the summary level and instead must be tried by a court martial or defence force magistrate. However, as this is a common offence, which sometimes involves relatively small amounts of money, de-prescribing the offence will provide an option for the offence to be tried expeditiously at the summary level in appropriate cases.
The proposed Regulation would amend the Principal Regulations to remove the reference to section 60 of the Financial Management and Accountability Act 1997 and replace it with the section 47Q offence of the Act.
The Act does not specify any conditions that need to be met before the power to make the proposed Regulation may be exercised.
The proposed Regulation would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
After consulting the Office of Best Practice Regulation in respect of the need for, and preparation of, a Regulation Impact Statement, it advised that a Regulation Impact Statement was not required (OBPR reference 19295, 16 June 2015), as there were no regulatory impacts on business or the not-for-profit sector made by the Regulation.
Only internal Defence consultation was undertaken because the amendments do not have any potential implications relating to other government departments or agencies or non-government organisations. The amendments provide for the offence of unauthorised use of a Commonwealth credit card to be tried at the summary level and as such, consultation was considered unnecessary in accordance with section 18 of the Legislative Instruments Act 2003, as the Regulation relates to ‘the service of members of the Australian Defence Force’.
Commencement
The proposed Regulation provides for commencement on the day after the Regulation is registered.
Statement of Compatibility with Human Rights
This Regulation 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.
The Regulation is mindful of, and consistent with, the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’) and freedom from arbitrary detention under Article 9 of the ICCPR.
The purpose of Australia’s military discipline system is to support command in maintaining and enforcing service discipline in order to enhance operational effectiveness. The Regulation allows this commonly occurring offence to be prosecuted at the summary level and, thus, supports commanders to administer discipline quickly and effectively.
Accordingly, in the Department of Defence’s assessment, this Regulation is compatible with human rights.
Overview
The Defence Force Discipline Amendment (Prescribed Service Offences) Regulation 2015 was enacted to address the legislative gap left by the repeal of section 60 of the Financial Management and Accountability Act 1997, which previously governed the prosecution of unauthorised use of a Commonwealth credit card. This regulation was introduced under the authority of the Minister for Defence and aims to streamline the disciplinary process by allowing certain offences to be tried at the summary level rather than exclusively through a court martial or defence force magistrate, as previously required for offences with a maximum punishment of over two years. The regulation seeks to ensure the military justice system remains efficient and responsive to common disciplinary issues within the Australian Defence Force.
The Defence Force Discipline Amendment (Prescribed Service Offences) Regulation 2015 was prepared under the authority of the Defence Force Discipline Act 1982, which empowers the Governor-General to make regulations necessary for the effective implementation of the Act. The regulation's policy objective is to facilitate the expeditious prosecution of minor offences, thereby supporting command in maintaining discipline and operational effectiveness. This amendment aligns with international human rights standards, particularly the right to a fair trial and freedom from arbitrary detention as outlined in the International Covenant on Civil and Political Rights. The regulation ensures that the disciplinary process remains fair and just, while also being practical and efficient for the Australian Defence Force.
Scope and Application
The Defence Force Discipline Amendment (Prescribed Service Offences) Regulation 2015 amends the Defence Force Discipline Regulations 1985 to address the unauthorised use of a Commonwealth credit card as a service offence under section 47Q of the Defence Force Discipline Act 1982. This regulation applies to members of the Australian Defence Force, including the Australian Defence Force Academy, and their associated conduct and transactions involving unauthorised credit card use. Geographically, the regulation operates under the Commonwealth jurisdiction and aligns with the Defence Force Discipline Act 1982, which encompasses the Australian Defence Force across all states and territories. The regulation removes the necessity for this specific offence to be tried by a court martial or defence force magistrate for cases involving relatively small amounts of money, allowing for more expeditious summary trials where appropriate. There are no specified exclusions, exemptions, or thresholds within the regulation itself, but it leverages the existing structure of the Defence Force Discipline Act and its regulations to effectuate these changes. The regulation is a legislative instrument as defined under the Legislative Instruments Act 2003 and was prepared with internal Defence consultation, deeming broader consultation unnecessary due to its focused application within the Defence Force.
Key Provisions
The Defence Force Discipline Amendment (Prescribed Service Offences) Regulation 2015 (the Regulation) primarily amends the Defence Force Discipline Regulations 1985 (Principal Regulations) by de-prescribing the offence of unauthorised use of a Commonwealth credit card, originally codified in section 47Q of the Defence Force Discipline Act 1982 (the Act). This amendment allows this specific offence, which carries a maximum punishment of five years imprisonment, to be tried at the summary level rather than exclusively by a court martial or defence force magistrate. This change is intended to provide commanders with a more flexible and expeditious means of administering discipline in cases involving relatively minor breaches.
The Regulation imposes several obligations on parties and entities governed by the Act. Firstly, it mandates that the offence of unauthorised use of a Commonwealth credit card, which was previously prosecuted under section 60 of the Financial Management and Accountability Act 1997 (now repealed), be handled in accordance with the new provisions set out in section 47Q of the Act. This includes ensuring that such offences are processed appropriately, either at the summary level or by a court martial or defence force magistrate, depending on the circumstances. Additionally, the Regulation requires Defence Force personnel to adhere to the updated disciplinary procedures, ensuring that they are aware of and comply with the new requirements for handling credit card offences.
Failure to comply with the provisions of the Act and the Regulation can result in various civil or criminal consequences. For instance, the unauthorised use of a Commonwealth credit card, being a prescribed service offence, can lead to significant penalties, including up to five years imprisonment, as stipulated in section 47Q of the Act. The Regulation aims to streamline the process for less severe instances of this offence, potentially reducing the burden on the judicial system and allowing for quicker resolution of cases. However, it also underscores the importance of adhering to the prescribed procedures, as non-compliance can have serious legal repercussions.
In terms of penalties, the Regulation maintains the maximum punishment for the offence of unauthorised use of a Commonwealth credit card as five years imprisonment, reflecting the seriousness of the offence. The ability to prosecute this offence at the summary level is intended to provide a more efficient means of addressing common instances of this misconduct without the need for a full court martial or defence force magistrate hearing. This approach balances the need for accountability with the practicalities of managing service discipline effectively.
The Regulation is designed to be compatible with human rights, particularly the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and freedom from arbitrary detention under Article 9 of the ICCPR. By allowing certain offences to be tried at the summary level, the Regulation aims to ensure that disciplinary processes are both fair and efficient, thereby supporting the operational effectiveness of the Australian Defence Force. The Department of Defence has assessed that the Regulation aligns with human rights standards, ensuring that members of the Defence Force receive due process while maintaining the necessary discipline for effective command and control.