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.
Overview
The Defence Force Regulations (Amendment) Statutory Rules 1987 No. 113, issued under the authority of the Minister for Defence, were enacted to amend the Defence Force Regulations, which are subsidiary legislation made under the Defence Act 1903. The primary objective of these amendments was to address the procedural requirements for declarations of practice areas over private land and the compensation mechanism for losses incurred due to defence operations. Specifically, the amendments sought to clarify that any declaration of a practice area not tabled in Parliament would be void and to provide a pathway for appealing compensation decisions to the Administrative Appeals Tribunal. The amendments were introduced in response to concerns raised by the Senate Standing Committee on Regulations and Ordinances and to resolve doubts regarding the Commonwealth's authority to conduct operations outside declared practice areas.
Scope and Application
The Defence Force Regulations (Amendment) Statutory Rule 1987 No. 113 amends the Defence Force Regulations, made under the Defence Act 1903, which govern the administration of the Defence Force. These regulations apply to persons and entities involved in the administration and operational aspects of the Defence Force, including the declaration of defence practice areas, compensation for losses or damages incurred due to defence operations, and the oversight of these processes. The amendments introduced by this Statutory Rule apply nationally as they are made under the authority of the Commonwealth of Australia. The changes include making it explicit that a declaration of a practice area over private land is void if not laid before Parliament, providing formal requirements for compensation claims, and establishing a process for internal review and appeal of compensation decisions to the Administrative Appeals Tribunal. Additionally, the amendments address jurisdictional concerns raised by the Attorney-General's Department, clarifying the Commonwealth's power to conduct defence operations outside declared practice areas. The Statutory Rule commences on the date of its gazettal.
Key Provisions
The Defence Force Regulations (Amendment) Statutory Rules 1987 No. 113 introduce significant changes to the Defence Force Regulations, which govern the administration of the Defence Force. Regulation 1 amends regulation 50 by inserting sub-regulation (1A), stipulating that any declaration identifying a private land area as a practice area is void unless it is presented to each House of Parliament as required by sub-regulation 50(1). This ensures that any declaration must be formally tabled in Parliament, allowing for parliamentary scrutiny and potential disapproval. Regulation 2 adds sub-regulations (2) and (3) to regulation 57. Sub-regulation (2) outlines the formal requirements for compensation claims, ensuring that claims are properly documented and substantiated. Sub-regulation (3) stipulates that if a decision on a compensation claim is not made within 60 days of a claim being filed, it is considered a refusal of the claim, thereby providing a timeframe for decision-making and recourse for claimants.
The obligations imposed by these amendments include the requirement for the Defence Force to table all declarations of practice areas before Parliament, ensuring transparency and oversight. Additionally, the Defence Force must adhere to the formal requirements for compensation claims as specified in regulation 57(2), ensuring that all claims are processed in a structured manner. Furthermore, the Secretary of the Department of Defence must make decisions on compensation claims and extensions of time limits within the prescribed timeframes, failing which the default positions apply. These obligations are crucial for maintaining accountability and ensuring that affected parties have adequate recourse.
Breaches of these provisions can result in significant consequences. If a declaration of a practice area is not tabled in Parliament as required, it is void and of no effect, as per sub-regulation 50(1A). This nullification means that any operations or practices carried out under such a declaration would be unauthorised. Furthermore, failure to adhere to the formal requirements for compensation claims or to make timely decisions on such claims can lead to legal challenges and potential liability. Regulation 57A allows for appeals to the Administrative Appeals Tribunal for decisions on compensation or extensions of time limits, providing a mechanism for redress. While specific penalties are not outlined in the Regulations, breaches could lead to civil or administrative actions, and in severe cases, criminal charges depending on the nature of the breach.