EXPLANATORY STATEMENT
STATUTORY RULES 1983 NO 129
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE
DEFENCE FORCE REGULATIONS (AMENDMENT)
Section 8 and Part III of the Defence Acts Amendment Act 1981 repeal Parts III and IV of the Defence (Visiting Forces) Act 1963 and remake the provisions as a new Part IXA of the Defence Act 1903. The provisions concerned relate to the forces of other countries. They deal with attachment of personnel and mutual powers of command between Australian forces and those forces, as well as the treatment of absentees without leave from those forces.
This Statutory Rule, together with associated amendments to the Defence (Visiting Forces) Regulations, transfers from the Defence (Visiting Forces) Regulations to the Defence Force Regulations matters prescribed for the purposes of the above-mentioned provisions.
Regulation 2 of the Statutory Rule amends sub-regulation 3(1) of the Defence Force Regulations to add a definition of “the Act” as the Defence Act 1903.
Regulation 3 of the Statutory Rule inserts a new Part X - Visiting Forces.
The new regulation 44, which corresponds to the former regulations 4 and 5 of the Defence (Visiting Forces) Regulations, declares countries to which each provision of the new Part IXA of the Defence Act applies. This enables any provision of Part IXA to be applied to any of those countries. The new list removes the distinction between Commonwealth countries and the United States of America contained in the Defence (Visiting Forces) Regulations (where the distinction is still necessary because of the scheme of the Defence (Visiting Forces) Act).
The countries listed are reduced to those in respect of which there is some prospect of exchanges, whether through visiting forces or attachments.
The new regulation 45 together with a Schedule added by the Statutory Rule prescribes a form of warrant for the apprehension of an absentee without leave. Regulation 45 and the Schedule replace a similar form that was prescribed by regulation 5A of and the Schedule to the Defence (Visiting Forces) Regulations.
The new regulation 46 provides for the execution or enforcement in Australia of a sentence passed or punishment imposed on a member of the Defence Force while he is attached temporarily, under the new section 116B of the Defence Act, to the forces of another country. (Under section 116B, the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff may, by order in writing, place a member who is under his command at the disposal of the service authorities of a country to which that section applies for attachment to their forces). Sub-regulation 46(2) prohibits the carrying into effect of a sentence of death. Regulation 46 replaces regulation 7 of the Defence (Visiting Forces) Regulations.
The new regulation 47 enables the Minister, for the purposes of legal proceedings in Australia, to certify in writing that on a specified date a member of the Defence Force was attached temporarily to the forces of a specified country, that a service tribunal of that country had passed a sentence or imposed a punishment set out in the certificate on a person named in the certificate, and that the sentence or punishment, or a specified part of it, has not been executed or enforced. That certificate would be sufficient evidence of the certified facts unless the contrary were proved. Regulation 47 replaces
regulation 8 of the Defence (Visiting Forces) Regulations.
The Statutory Rule comes into operation on 15 August 1983, the date from which sections 8 and Part III of the Defence Acts Amendment Act 1981 will be proclaimed to commence.
Overview
The Defence Force Regulations (Amendment) Statutory Rules 1983, issued under the authority of the Minister for Defence, were enacted to address the need for a streamlined legal framework governing the interaction between Australian forces and those of other countries. This legislation was introduced to ensure that the provisions related to visiting forces were consolidated and updated, in response to the repeal of Parts III and IV of the Defence (Visiting Forces) Act 1963 by the Defence Acts Amendment Act 1981. These provisions were subsequently re-enacted as Part IXA of the Defence Act 1903. The policy objective behind this amendment is to provide a coherent regulatory environment for the attachment of personnel and the mutual powers of command between Australian forces and those of other nations, as well as addressing the treatment of absentees without leave from visiting forces.
Scope and Application
The Defence Force Regulations (Amendment) Statutory Rule 1983 No. 129, issued under the authority of the Minister for Defence, primarily applies to the forces of other countries and their interactions with Australian Defence Forces. The regulation, together with associated amendments to the Defence (Visiting Forces) Regulations, transfers certain matters from the Defence (Visiting Forces) Regulations to the Defence Force Regulations to better align with the new Part IXA of the Defence Act 1903, which was introduced by the Defence Acts Amendment Act 1981. This new Part IXA addresses the attachment of personnel and mutual powers of command between Australian and foreign forces, as well as the treatment of absentees without leave from those forces. The regulation establishes a new Part X - Visiting Forces, and the new regulations 44 to 47 provide detailed provisions on the application of Part IXA to specified countries, the apprehension of absentees without leave, the enforcement of sentences and punishments, and the certification of service tribunal decisions for use in Australian legal proceedings. The amendment does not alter the existing jurisdictional reach or substantive scope of the Defence Act 1903, but it does streamline the regulatory framework for dealing with visiting forces. The Statutory Rule comes into operation on 15 August 1983.
Key Provisions
The main operative sections of this legislation, as referenced in the Statutory Rules 1983 No. 129, pertain to the Defence Force Regulations, particularly the newly inserted Part X - Visiting Forces, which corresponds to the repealed Parts III and IV of the Defence (Visiting Forces) Act 1963. Regulation 2 amends the definition of “the Act” to refer to the Defence Act 1903, clarifying the legislative framework. Regulation 3 introduces the new Part X, which outlines the procedures and regulations concerning the forces of other countries. Regulation 44 specifies the countries to which each provision of the new Part IXA of the Defence Act applies, thereby enabling the application of relevant provisions to these countries. Regulation 45 and its Schedule provide a form of warrant for the apprehension of absentees without leave from these forces, replacing the previous form. Regulation 46 pertains to the execution or enforcement in Australia of sentences passed on Defence Force members while attached to foreign forces, prohibiting the carrying into effect of a death sentence. Lastly, Regulation 47 enables the Minister to certify specific facts related to service tribunals of foreign countries, which would serve as sufficient evidence in Australian legal proceedings unless disproven.
The obligations imposed on the parties or entities governed by this legislation include adherence to the regulations outlined in the new Part X of the Defence Force Regulations. Specifically, the Defence Force must follow the procedures outlined in Regulation 45 for apprehending absentees without leave, and comply with the provisions of Regulation 46 when executing or enforcing sentences passed on Defence Force members while they are attached to foreign forces. Additionally, the Minister must ensure that the certifications provided under Regulation 47 are accurate and legally sufficient for use in Australian courts. These regulations collectively establish the framework for managing interactions between Australian Defence Forces and the forces of other countries, ensuring that any legal actions taken are in accordance with the prescribed procedures.
In terms of breaches and their consequences, the Statutory Rules do not explicitly state offences, penalties, or specific consequences for non-compliance within the rules themselves. However, the broader Defence Act 1903 and associated regulations likely provide for various offences and penalties for breaches related to military law, including potential criminal and civil consequences. For example, failure to comply with regulations regarding the apprehension of absentees without leave or the enforcement of foreign sentences could lead to criminal charges under the Defence Act, potentially resulting in fines or imprisonment. Similarly, inaccuracies in the Minister’s certifications could lead to legal challenges or civil liabilities. The exact penalties would depend on the specific breaches and the applicable sections of the Defence Act 1903 and related regulations.