EXPLANATORY STATEMENT
STATUTORY RULES 1987 NO. 113
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
Statutory Rules 1985 No. 88 (“the amending regulations”) amended the Regulations by introducing Part XI to provide for the declaration and control of defence practice areas and Part XII to provide for surveys for defence purposes. These provisions came into effect on 1 July 1985.
Regulation 50, introduced by the amending regulations, requires declarations of practice areas over private land to be tabled in Parliament and enables parliamentary disapproval.
Regulation 57, also introduced by the amending regulations, provides that compensation is payable to persons who suffer loss or damage as a result of the declaration of practice areas or the carrying out of operations, practices or surveys under the Regulations.
Following a request from the Chairman of the Senate Standing Committee on Regulations and Ordinances, the Minister for Defence agreed to amendment of the Regulations to provide explicitly that a declaration not tabled as required by regulation 50 be void and of no effect. It was also agreed that the Regulations needed amendment to provide for an appeal to the Administrative Appeals Tribunal from a compensation decision made under regulation 57.
After the agreed amendments had been prepared, advice was received from the Attorney-General’s Department that raised some doubt concerning the power of the Commonwealth to conduct operations and practices outside defence practice areas declared under Part XI.
The proposed Statutory Rule makes the amendments requested by the Chairman of the Senate Committee, as well as inserting a regulation to remove the doubt raised by the Attorney-General’s Department.
Defence Force Regulations Amendments
Regulation 1 of the Statutory Rule inserts in regulation 50 of the Regulations a new sub-regulation (1A). This sub-regulation provides that a declaration declaring, an area of private land to be a practice area is void and of no effect unless laid before each House of the Parliament in accordance with sub-regulation 50(1).
Regulation 2 of the Statutory Rule adds at the end of regulation 57 of the Regulations new sub-regulations (2) and (3). Sub-regulation (2) sets out formal requirements that a claim for compensation should satisfy, and sub-regulation (3) deems failure to make a decision within 60 days after a claim was lodged to be a refusal of the claim.
Regulation 3 of the Statutory Rule inserts in the Regulations new regulations 57A, 57B and 57C. Regulation 57A provides for the review of decisions made under regulation 57 in relation to the payment of compensation. An internal review would initially be carried out by a person or board appointed or constituted under sub-regulation 57A(4). An application for review would have to be made to the Secretary of the Department of Defence within the time-limit of 30 days set out in sub-regulation 57A(3) or such longer period as the Secretary may allow in accordance with that sub-regulation. Sub-regulation 57A(3) requires the Secretary to make a decision within 30 days on whether to extend the time-limit for making an application. Failure to come to a decision within that period is, by virtue of sub-section 25(5) of the Administrative Appeals Tribunal Act 1975, deemed to be a refusal to extend the time-limit. A person dissatisfied with the result of an internal review can then apply to the Administrative Appeals Tribunal, under sub-regulation 57A(10), for a review of a decision relating either to compensation or extension of the time limit.
Regulation 57B permits the Secretary to delegate any of his or her powers under Part XI of the Regulations to persons holding a position or an office at or above a specified level, being Colonel or a corresponding rank in the Defence Force or above Clerical Administrative, Class 9, in the Public Service.
Regulation 57C removes any doubt about the power of the Commonwealth to undertake defence operations and practices outside defence practice areas declared under the Regulations.
Commencement
The Statutory Rule comes into operation on the date of gazettal.