EXPLANATORY STATEMENT
Statutory Rules 2004 No. 376
Defence Force (Home Loans Assistance) Act 1990
Issued by the authority of the Minister for Veterans' Affairs
Defence Force (Home Loans Assistance) Amendment
Regulations 2004 (No. 1)
Section 40 of the Defence Force (Home Loans Assistance) Act 1990 (the Act) provides that the Governor-General may make regulations not inconsistent with the Act prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
It is a requirement under the Act that a member of the Australian Defence Force must have served a certain period of continuous full time service in order to obtain financial assistance. Section 7 of the Act provides that a member's full time service is not broken where prescribed leave is taken. Regulation 4 of the Defence Force (Home Loans Assistance) Regulations (the Principal Regulations) provides that prescribed leave is :
- compensation leave within the meaning of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ; and
- leave without pay and maternity leave granted pursuant to Ministerial Determinations under section 58B of the Defence Act 1903.
The purpose of the Regulations is to update the list of prescribed leave types that do not interrupt continuous full time service for the purpose of determining eligibility for financial assistance under the Act. The Regulations would also update the title of the Principal Regulations in line with current drafting practice.
The Military Rehabilitation and Compensation Act 2004 (the MRC Act) commenced on 1 July 2004. The MRC Act provides for a rehabilitation and compensation scheme for current and former members of the Australian Defence Force, who until 30 June 2004 were covered by the Safety, Rehabilitation and Compensation Act 1988.
As a result of the enactment of the MRC Act, consequential amendments to the Principal Regulations have been identified to ensure that prescribed leave includes instances where members are incapacitated as a result of injury or disease and are entitled to compensation under the MRC Act. A further amendment, while not consequential on the enactment of the MRC Act, is necessary as a result of the change in name of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 to the Safety, Rehabilitation and Compensation Act 1988 in 1992. Furthermore, an amendment to the definitions in regulation 3 is also required to reflect the replacement of the "Leave Without Pay Determination 2608" and the "Maternity Leave Determination 2604" with the "Defence Determination 2003/21".
Details of the Regulations are outlined in the Attachment.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are taken to have commenced on 1 July 2004, the same date as the commencement of the MRC Act. Subsection 48(2) of the Acts Interpretation Act 1901 (AIA) prohibits the making of a regulation retrospectively if such an amendment has the effect of adversely affecting the rights of a person or imposing a liability on such a person (other than the Commonwealth), for acts done before the date of the notification of the regulation in the Gazette. The Australian Government Solicitor has advised that, as the Regulations do not operate in such a manner, the retrospective commencement of the Regulations is not prohibited by subsection 48(2) of the AIA. On the contrary, they have a beneficial operation for eligible Australian Defence Force members.
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ATTACHMENT
Defence Force (Home Loans Assistance) Amendment Regulations 2004 (No. 1)
Regulation 1 identifies these Regulations as the Defence Force (Home Loans Assistance) Amendment Regulations 2004 (No. 1).
Regulation 2 provides that the Regulations are taken to have commenced on 1 July 2004, the same date as the commencement of the Military Rehabilitation and Compensation Act 2004 (the MRC Act).
Regulation 3 identifies the regulations amended by Schedule 1 as the Defence Force (Home Loans Assistance) Regulations (the Principal Regulations).
Schedule 1 makes three substantive amendments to the Principal Regulations.
Item 1 substitutes the citation of the Principal Regulations in regulation 1 with the "Defence Force (Home Loans Assistance) Regulations 1991."
Item 2 replaces the obsolete references to Determination 2604 (Maternity Leave) and Determination 2608 (Leave Without Pay) with a reference to Defence Determination 2003/21, which has consolidated these and other former Determinations.
Item 3 substitutes existing regulation 4 to specify types of leave that would be prescribed leave for the purposes of the Defence Force (Home Loans Assistance) Act 1990, as a consequence of the enactment of the MRC Act and the consolidated Defence Determination 2003/21 namely-
- leave granted to a member who is:
(a) incapacitated for service or work; and
(b) entitled to compensation under Part 3 of Chapter 4 of the MRC Act;
- maternity leave without pay under Part 3 of Chapter 8 of the Defence Determination;
- parental leave without pay granted under Part 4 of Chapter 8 of the Defence Determination;
- leave without pay granted under Part 7 of Chapter 8 of the Defence Determination of the kind mentioned in clause 8.7.3 of that Determination; and
- part-time leave without pay granted under clause 8.7.4 of the Defence Determination.
Item 3 also replaces the reference to Commonwealth Employees' Rehabilitation and Compensation Act 1988 with the Safety, Rehabilitation and Compensation Act 1988. This is a housekeeping measure necessary as a result of the change in name of the former Act to the latter Act in 1992.