Defence Force Discipline Amendment Regulations 1999 (No. 1) 1999 No. 357
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 357
Issued by the Authority of the Minister for Veterans' Affairs
Defence Force Discipline Act 1982
Defence Force Discipline Amendment Regulations 1999 (No. 1)
The Defence Force Discipline Regulations ("the Principal Regulations") made under the Defence Force Discipline Act 1982 ("the Act") prescribe various matters relating to the administration of the discipline system established by the Act.
Subsection 179(1) of the Defence Force Discipline Act 1982 ("the Act) provides that there shall be a Judge Advocate General who shall be appointed by the Governor-General to hold his or her appointment either on a full time or part time basis. Subsection 179(2) provides that the Governor-General may appoint one or more Deputy Judge Advocates General, who shall also hold their appointments on either a full time or part time basis.
Section 185 of the Act outlines the provisions dealing with the remuneration of Judge Advocates General and Deputy Judge Advocates General. Subsection 185(1) provides that they shall be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination is in operation, they shall be paid such remuneration as is prescribed. This provision is subject to, among other things, subsection 185(4), which prevents Judge Advocates General and Deputy Judge Advocates General from receiving remuneration under the Act if they are receiving salary or annual allowances as a Justice or as a Judge. To date, there has not been a requirement to determine or prescribe the rates of remuneration as all previous appointees have been judicial appointees. However the appointment of a nonjudicial person as Deputy Judge Advocate General required the rates to be prescribed.
This Statutory Rule prescribes a rate of remuneration for a Deputy Judge Advocate General. The rate is set at a level commensurate with a senior counsel engaged on behalf of the Commonwealth or its agencies. Where the work takes less than 6 hours of the day, the rate is $375 for each hour or part of an hour or if the work takes more than 6 hours, then the daily rate of remuneration is set at $2250 for the work done on the day.
The Statutory Rule does not apply to a Deputy Judge Advocate General who is a Justice or Judge of a federal court or a Supreme Court of a State or Territory and who is receiving a salary or annual allowance.
The Statutory Rule also provides that if a Deputy Judge Advocate General is a defence member and the remuneration to which he or she is entitled under the Statutory Rule exceeds the pay to which he or she is entitled as a defence member, he or she is only entitled to receive in respect of their office as Deputy Judge Advocate General, the amount that is in excess. These two qualifications are imposed by subsections 185(4) and subsections 185(5) of the Act and are repeated as notes in the proposed Regulations to reinforce the limitations on the payment of the prescribed rate of pay.
This Statutory Rule also changes the name of the Principal Regulations to the Defence Force Discipline Regulations 1985.
The Statutory Rule comes into operation on the date of gazettal.
Overview
The Defence Force Discipline Amendment Regulations 1999 (No. 1) were enacted to address the need for prescribed remuneration rates for Deputy Judge Advocates General within the Defence Force Discipline Act 1982. This was necessitated by the appointment of a non-judicial person to the role, which required the establishment of remuneration rates as previous appointees had been judicial appointees not requiring such rates. The amendment was made under the authority of the Minister for Veterans' Affairs and came into operation on the date of gazettal. The policy objective of these regulations is to ensure that Deputy Judge Advocates General receive appropriate remuneration while avoiding conflicts with their existing salaries or allowances if they are also serving as Justices or Judges. The remuneration is set at a level comparable to that of senior counsel engaged by the Commonwealth or its agencies, with specific rates based on the number of hours worked. Additionally, the regulations rename the Defence Force Discipline Regulations to the Defence Force Discipline Regulations 1985 to reflect their updated status.
Scope and Application
The Defence Force Discipline Amendment Regulations 1999 (No. 1) primarily apply to the remuneration of Deputy Judge Advocates General within the framework established by the Defence Force Discipline Act 1982. This Act governs the administration of the discipline system for the Australian Defence Force, and the Regulations provide specific details regarding the pay for Deputy Judge Advocates General, ensuring it aligns with the rates for senior counsel engaged on behalf of the Commonwealth or its agencies. The remuneration rates are set at $375 per hour if the work involves less than 6 hours, and $2250 for a full day if the work exceeds 6 hours. Notably, these provisions do not extend to Deputy Judge Advocates General who are already Justices or Judges of a federal court or a Supreme Court of a State or Territory and who receive a salary or annual allowance. Furthermore, if a Deputy Judge Advocate General is also a defence member, they are only entitled to receive remuneration that exceeds their pay as a defence member, ensuring there is no duplication of benefits. These regulations are instrumental in maintaining the integrity and efficiency of the discipline system by providing clear guidelines on the financial compensation for key judicial roles within the Defence Force.
Key Provisions
The Defence Force Discipline Amendment Regulations 1999 (No. 1) (F1999B00321) sets out several key provisions that modify existing regulations under the Defence Force Discipline Act 1982. It introduces new remuneration rates for Deputy Judge Advocates General, as outlined in section 185(1) of the Act, establishing a rate that matches that of a senior counsel employed by the Commonwealth or its agencies. Specifically, if the Deputy Judge Advocate General works less than six hours a day, they will be remunerated at a rate of $375 per hour or part thereof; if their work exceeds six hours, the daily rate of remuneration is set at $2250 (subsection 185(2)). However, it is important to note that these remuneration provisions do not apply to Deputy Judge Advocates General who are also Justices or Judges of a federal court or a Supreme Court of a state or territory and are receiving a salary or annual allowance (subsection 185(4)).
Furthermore, the regulations outline that if a Deputy Judge Advocate General is also a defence member and the remuneration they are entitled to under these regulations exceeds their pay as a defence member, they will only receive the excess amount in relation to their office as Deputy Judge Advocate General (subsection 185(5)). The Statutory Rule also renames the existing Defence Force Discipline Regulations to the Defence Force Discipline Regulations 1985.
The obligations imposed by these regulations include adherence to the prescribed remuneration rates for Deputy Judge Advocates General and the requirement that these remuneration provisions do not apply to those who are also Justices or Judges of federal or state courts. Furthermore, any Deputy Judge Advocate General who is also a defence member must only receive the excess remuneration in respect of their office as Deputy Judge Advocate General.
In terms of consequences for non-compliance, the regulations do not explicitly state any specific penalties or consequences for breach. However, breaches of the Defence Force Discipline Act 1982 or any regulations made under it could potentially lead to disciplinary action against the offending defence member, as well as potential civil or criminal liability, depending on the nature of the breach and any applicable laws. The maximum penalties for such breaches would be determined by the relevant provisions of the Defence Force Discipline Act 1982 and any other applicable legislation.