EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 304
Defence Force (Home Loans Assistance) Act 1990
Issued by the authority of the Minister for Veterans' Affairs
Defence Force (Home Loans Assistance) Amendment Regulations 2005 (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.
Section 11 of the Act provides, inter alia, that a member of the Australian Defence Force must have served a certain period of continuous 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 1991(the Principal Regulations) provides that prescribed leave is:
- compensation leave within the meaning of the Safety, Rehabilitation and Compensation Act 1988;
- leave granted to a Member who is incapacitated for service or work and entitled to compensation under Part 3 of Chapter 4 of the Military Rehabilitation and Compensation Act 2004; and
- leave without pay, parental leave or maternity leave granted pursuant to
Ministerial Determination 2003/21 made under section 58B of the Defence Act
1903.
The purpose of the Regulations is to reflect the replacement of Defence Determination 2003/21 with the new Defence Determination 2005/15,which inter alia, covers Maternity Leave, Parental Leave and Leave Without Pay. The Regulations also reflect the consequent renumbering of provisions in the new Determination relating to that leave.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
There has been no consultation in the making of this instrument as it relates to the management of and the service of members of the Australian Defence Force.
The Regulations would, after they have been registered, be taken to have commenced on 31 May 2005, the same date as the commencement of Defence Determination 2005/15. Subsection 12(2) of the Legislative Instruments Act 2003 (LIA) prohibits the making of a regulation with a retrospective operation 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 notification of the regulation on the Federal Register of Legislative Instruments. The Attorney-General's Department has advised that, as the Regulations would not operate in such a manner, the retrospective commencement of the Regulations would not be prohibited by subsection 12(2) of the LIA.
Overview
The Defence Force (Home Loans Assistance) Amendment Regulations 2005 (No. 1) were introduced to address the need for updating the Defence Force (Home Loans Assistance) Regulations 1991 in light of the replacement of Defence Determination 2003/21 with Defence Determination 2005/15. This determination covers key areas such as maternity leave, parental leave, and leave without pay, and necessitated renumbering of relevant provisions. The Regulations were enacted by the Governor-General under Section 40 of the Defence Force (Home Loans Assistance) Act 1990, which empowers the making of regulations necessary for the Act's implementation. The primary objective of these Regulations is to ensure the continuity and effectiveness of the Act's provisions by aligning them with the updated Defence Determination, thereby maintaining the integrity of the assistance provided to Australian Defence Force members under the Act.
Scope and Application
The Defence Force (Home Loans Assistance) Act 1990 applies to members of the Australian Defence Force who seek financial assistance for home loans, provided they have completed a specified period of continuous service as outlined in Section 11. The Act ensures that certain types of leave, such as compensation leave, leave due to incapacitation, and leave without pay, parental leave, or maternity leave, do not disrupt the continuity of service necessary for eligibility under Section 7. The geographic and jurisdictional reach of the Act is national, applying across Australia. The Act allows for the creation of subordinate legislation, such as the Defence Force (Home Loans Assistance) Amendment Regulations 2005 (No. 1), which are made to update and reflect changes in related Defence Determinations and Ministerial Decisions, ensuring the regulations remain relevant and effective in assisting eligible members of the Defence Force. These Regulations, which came into effect on 31 May 2005, have been crafted to align with the new Defence Determination 2005/15 and do not operate retrospectively to adversely affect the rights of individuals under subsection 12(2) of the Legislative Instruments Act 2003.
Key Provisions
The main operative sections of the Defence Force (Home Loans Assistance) Amendment Regulations 2005 (No. 1) update the Defence Force (Home Loans Assistance) Regulations 1991 to reflect changes in Defence Determination 2005/15, which covers maternity leave, parental leave, and leave without pay. Regulation 4 of the Principal Regulations is amended to align with the new Defence Determination 2005/15, ensuring the continuity of prescribed leave that does not break a member’s full-time service eligibility for financial assistance under Section 7 of the Defence Force (Home Loans Assistance) Act 1990. This amendment ensures that certain leaves do not disrupt a member's eligibility for financial assistance, as stipulated in Section 11 of the Act.
The obligations imposed by the Regulations on parties, primarily members of the Australian Defence Force and relevant authorities, are to ensure that the leave granted under the Defence Determination 2005/15 is accurately recognised and recorded. This includes ensuring that leave such as maternity leave, parental leave, and leave without pay is appropriately documented and does not affect a member’s eligibility for home loan assistance under the Act. The Defence Force (Home Loans Assistance) Act 1990 requires members to have served a certain period of continuous service to qualify for financial assistance, and the Regulations help clarify what constitutes continuous service by specifying which types of leave do not break this continuity.
Any breaches of the Defence Force (Home Loans Assistance) Act 1990 or the Defence Force (Home Loans Assistance) Amendment Regulations 2005 (No. 1) may lead to civil or criminal consequences. Although specific offences and penalties are not detailed in the explanatory statement, breaches of acts and regulations generally may result in fines, imprisonment, or other penalties as prescribed by the relevant legislation. The exact penalties would depend on the nature and severity of the breach and would be in accordance with the legal frameworks governing administrative and legislative compliance in Australia.