EXPLANATORY STATEMENT
STATUTORY RULES 1985 NO. 131
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE
DEFENCE FORCE REGULATIONS (AMENDMENT)
The Defence Force Regulations (“the Regulations”), made under the Defence Act 1903 (“the Act”), prescribe various matters relating to the administration of the Defence Force.
Background - Forfeiture of Salary and Allowances
Section 119 of the Act and regulations under that Act, the Naval Defence Act 1910 and the Air Force Act 1923 provide for the forfeiture in specified circumstances of salary and allowances of members of the Defence Force.
Section 53 of the Defence Force Re-organization Act 1975 (“the Re-organization Act”) substituted a new section 119 of the Act, which (as subsequently amended by section 10 of the Defence Acts Amendment Act 1981) provides for the provision in regulations of conditions relating to suspension and forfeiture of salary and allowances.
Forfeiture or suspension of salary in certain circumstances
119. The regulations may make provision for and in relation to the forfeiture, in whole or in part, or the suspension of the whole, of the salary of, and of the allowances of, a member of the Defence Force.
Section 53 will be proclaimed to come into force on 3 July 1985, being the date on which the existing disciplinary law of the Defence Force will be replaced by the Defence Force Discipline Act 1982.
Section 119 gives effect to the principle “No work - no pay”. The amendments provide for that principle to apply to members of the Defence Force who are rendering continuous full time service as follows:
Absence without leave:
Salary and allowances are forfeited if the period of absence is 24 hours or more and the member is convicted of absence without leave.
ANNEX
DEFENCE FORCE REGULATIONS - FORFEITURE OF SALARY
PART XIII - SUSPENSION AND FORFEITURE OF SALARY AND ALLOWANCES
Background to Part XIII
Section 119 of the Defence Act 1903 provides as follows:
Stoppage of pay in certain cases
119. No member of the Defence Force shall, except as prescribed or as provided by determination under section 58B, receive any pay or allowances while under any charge of which he is afterwards convicted by any Court or by his Commanding Officer, or while under sentence of imprisonment, detention or field punishment by any Court or by his Commanding Officer, or during absence from duty without leave.
As the negative form of this section has resulted in unduly complex regulations, the section was replaced, by section 53 of the Defence Force Re-organization Act 1975, by a new section that (as subsequently amended by section 10 of the Defence Acts Amendment Act 1981) provides as follows:
Section 53 is expressed, by section 2 of the Re-organization Act, to come into operation on a date to be fixed by Proclamation. Proclamation of section 53 was deferred pending the making of suitable regulations.
Amendments to the Defence Force Regulations
Section 53 of the Re-organization Act will be proclaimed with effect from 3 July 1985.
This Statutory Rule amends the Regulations to provide for the suspension and forfeiture of salary by inserting new Parts XIII and XIV, which are described in the Annex.
Consequential repeals and amendments to existing regulations are being made concurrently with this Statutory Rule.
Commencement
The amendments have effect from 3 July 1985.
Civil custody:
Salary and allowances are forfeited if the period in civil custody is 24 hours or more and the member is convicted by a civil court.
Imprisonment:
Salary and allowances are forfeited.
Detention (under service law):
Salary is forfeited to the extent that it exceeds the basic recruit rate and allowances (other than detention allowance) are forfeited.
Regulation 1 of the Statutory Rule
This regulation provides for the regulations to come into operation on 3 July 1985, which is the date on which the Defence Force Discipline Act 1982 will be proclaimed to come into operation and existing service disciplinary law repealed.
Regulation 2 of the Statutory Rule
This regulation inserts new Part XIII (comprising regulations 59-72) and Part XIV (regulation 73) into the Defence Force Regulations as follows:
Section 53 is expressed, by section 2 of the Re-organization Act, to come into operation on a date to be fixed by Proclamation. Proclamation of section 53 was deferred pending the making of suitable regulations.
Amendments to the Defence Force Regulations
Section 53 of the Re-organization Act will be proclaimed with effect from 3 July 1985.
This Statutory Rule amends the Regulations to provide for the suspension and forfeiture of salary by inserting new Parts XIII and XIV, which are described in the Annex.
Consequential repeals and amendments to existing regulations are being made concurrently with this Statutory Rule.
Commencement
The amendments have effect from 3 July 1985.
Civil custody:
Salary and allowances are forfeited if the period in civil custody is 24 hours or more and the member is convicted by a civil court.
Imprisonment:
Salary and allowances are forfeited.
Detention (under service law):
Salary is forfeited to the extent that it exceeds the basic recruit rate and allowances (other than detention allowance) are forfeited.
Regulation 1 of the Statutory Rule
This regulation provides for the regulations to come into operation on 3 July 1985, which is the date on which the Defence Force Discipline Act 1982 will be proclaimed to come into operation and existing service disciplinary law repealed.
Regulation 2 of the Statutory Rule
This regulation inserts new Part XIII (comprising regulations 59-72) and Part XIV (regulation 73) into the Defence Force Regulations as follows:
Regulation 59 - Interpretation
This regulation defines various terms and references for the purposes of the new Part XIII of the Regulations.
Regulation 60 - Suspension of salary and allowances
This regulation provides for the suspension of the salary and allowances of a member of the Defence Force who is absent without leave or in civil custody for 24 hours or more. The reason for the suspension is that forfeiture cannot be applied until, in the case of a member who is absent without leave, that member is convicted by a service tribunal of absence without leave, or in the case of a member who is in civil custody, is convicted by a civil court.
Regulation 61 - Certificate by commanding officer
This regulation allows for the fact that the member may have a reasonable excuse for the absence (eg, the member may be found to be hospitalised through illness or injury). This regulation allows the suspension to be terminated in such a case. It also allows the suspension to be reimposed if there is subsequently no reason to believe that the member has a reasonable excuse for the absence.
Regulation 62 - Effect of suspension
This regulation spells out the effect of suspension of salary and allowances, namely that salary and allowances are not payable.
Regulation 63 - Cessation of suspension - absence without leave
This regulation deals with the position of a member who returns to duty after a period of absence without leave in respect of which the payment of salary and allowances have been suspended and spells out when the suspension terminates in the various circumstances that may apply.
Regulation 64 - Cessation of suspension - civil custody
This regulation deals with the position of a member who returns to duty after a period in civil custody in respect of which the payment of salary and allowances has been suspended. Provision is made for the suspension to terminate on that member’s return where he or she was not charged with an offence, or where the offence has been dealt with and the member was not convicted.
Regulation 65 - Forfeiture of salary and allowances - absence without leave
This regulation sets out the circumstances in which salary and allowances are forfeited by a member who is absent without leave, and the period of the forfeiture.
Regulation 66 - Forfeiture of salary and allowances - civil custody
This regulation sets out the circumstances in which salary and allowances are forfeited by a member who is detained in civil custody, and the period of the forfeiture.
Regulation 67 - Forfeiture of salary and allowances - imprisonment
This regulation provides that a member sentenced to imprisonment forfeits all salary and allowances that would have accrued after conviction.
Regulation 68 - Forfeiture of salary and allowances - detention under service law
This regulation provides that a member sentenced by a service tribunal to detention forfeits so much of salary as exceeds the rate of salary payable to a recruit, and all allowances other than Detention Allowance. This regulation makes similar provision for reservists who are rendering service other than continuous full time service. (Because of the manner in which salary and allowances accrue to such reservists, it is not necessary for the earlier regulations relating to absence without leave, etc, to apply to them.)
Regulation 69 - Conviction quashed or set aside
A conviction for an offence may be quashed or set aside and another conviction substituted or the member may or may not be ordered to be tried again for that offence or another offence and if so tried may be convicted or acquitted. This regulation sets out the effect of these various events on the original forfeiture.
Regulation 70 - Payments on the death of a member
A member who is absent without leave or in civil custody and the payment of whose salary and allowances is accordingly suspended may die or be officially presumed to have died. This regulation makes provision for the forfeiture of the deceased member’s salary and allowances or for the suspension to cease, according to the circumstances. Where suspension ceases in such a case, the monies become payable to the deceased person’s estate.
Regulation 71 - Review of decision
This regulation relates to any case of forfeiture under regulation 70 and requires the Minister to notify any person adversely affected by the decision that the decision has been made and the grounds for the decision. The regulation provides such a person with a right to appeal to the Administrative Appeals Tribunal.
Regulation 72 - Recovery of forfeited amounts
This regulation provides that a member who receives an amount that comprises salary or allowances that have been forfeited is required to repay an equal amount to the Commonwealth and that any such amounts may be deducted from salary and allowances payable to the member.
PART XIV - PAYMENT OF FINES
Regulation 73 - Re-imbursement of the Commonwealth
Where a member is tried, convicted and fined (or ordered to pay damages, etc) by a civil court, that member may be unable to pay the fine, etc, and it may be desirable for the Commonwealth to pay the fine, etc, and recover it by instalments from the member. Such a situation is most likely to arise in another country where it serves the purpose of enabling a member, who is convicted and fined by a court of that country and is unable to pay the fine, to rejoin the member’s unit or ship. This regulation provides that where the Commonwealth pays the fine, etc., the amount so paid is a debt due and payable by the member to the Commonwealth and may be deducted from salary and allowances payable to the member.
Regulation 3 of the Statutory Rule
This regulation deals with the transition from the former regulations to the new regulations.
It provides for the new regulations to operate in relation to a period of absence without leave or absence while in civil custody where the period of absence occurs wholly or partly before the commencing date and the relevant conviction occurs on or after that date.
It also provides that, where the application of the new regulations in such a case would result in a greater forfeiture than under the former regulations, then only the lesser forfeiture can be applied.
Finally, it provides for the new regulations to operate in relation to a period of imprisonment or detention that commenced before the commencing date of the new regulations but only in relation to so much of that period as occurs on or after that date.