Defence Force Regulations (Amendment) 1995 No. 51
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 51
Issued by the authority of the Minister for Defence Science and Personnel
Defence Act 1903
Defence Force Regulations (Amendment)
Background
Paragraph 124 (1) (b) of the Defence Act 1903 (the Act)provides that the Governor-General may make regulations providing for and in relation to the forfeiture, or assignment, of the whole or part of the remuneration of a member or cadet or of allowances or other pecuniary benefits payable in respect of a member or cadet.
The Defence Force Regulations (the Principal Regulations) prescribe various matters concerning the administration of the Defence Force. Regulation 68 provides for the forfeiture of salary by a member of or a period in which the member is undergoing the punishment of detention.
The Regulations amend the Principal Regulations, to correct references to salary determinations which have now been superseded.
Paragraph 68 (1) (a) of the Principal Regulations prescribes the amount of salary to be forfeited by a member of the Permanent Forces undergoing detention. It was the difference, if any, between the member's salary during detention, and the salary of a normal entry recruit undergoing basic recruit training as specified in "Determination 0101, Salary of Permanent Force Members, made under section 58B of the Act, as in force from time to time as modified from time to time by determinations made under section 58H of that Act".
Determination 0101 has not dealt with rates of salary since 4 June 1992 when a Defence Force Remuneration Tribunal determination (Determination No. 6 of 1992), made under section 58H of the Act, took over coverage of this matter. on that date the provisions dealing with the rates of salary were omitted from Determination 0101 by a determination made under section 58B of the Act (Determination No. 21 of 1992).
Paragraph 68 (2) (a) of the Principal Regulations provided for the salary which is forfeited during a period of detention, by a member of the Emergency or Reserve Forces rendering other than continuous full-time service, to be calculated with reference to "Determination 0199, Pay of Reserve Force Members, made under section 58B of the Act, as in force from time to time as modified from time to time by determinations made under section 58H of that Act".
Determination 0199 ceased to deal with the rates of salary for Reserve Force members on 4 June 1992, when Determination No. 6 of 1992 took over coverage of this matter also. On that date, Determination 0199 was repealed under section 58B of the Act by Determination No. 21 of 1992.
In order to identify correctly the source of salary for the regulations in question, the references to Determinations 0101 and 0199 needed to be replaced by references to Determination No. 6 of 1992. The amendment needed to be retrospective so that the references to Determination No. 6 of 1992 had effect from 4 June 1992. when that Determination replaced Determinations 0101 and 0199.
The Attorney-General's Department has advised that the amendment to the Principal Regulations is not prevented by the Acts Interpretation Act 1901. That Act prohibits retrospective regulations which affect rights disadvantageously or impose liabilities. The Attorney-General's Department has concluded that the correction of the wrong cross-references is merely a "tidying-up" exercise and does not substantively affect rights.
Changes
The Regulations amend the incorrect references retrospectively, to apply Determination No. 6 of 1992 with effect from 4 June 1992. This is achieved by replacing the references to Determination 0101 and Determination 0199 in the Principal Regulations with references to Determination No. 6 of 1992.
The effect of the amendment is to correct, with effect from 4 June 1992, the references that provide the basis for the forfeiture of salary by members while undergoing the punishment of detention.
Commencement
The Regulations are taken to have commenced on 4 June 1992.
Overview
The Defence Force Regulations (Amendment) 1995 No. 51 was enacted to address the issue of outdated references in the Defence Force Regulations, specifically those concerning salary determinations that had been superseded by more recent determinations. The Defence Force Regulations, which prescribe various matters concerning the administration of the Defence Force, were amended to correct these references. This was necessary to ensure that the correct salary determinations were applied in instances of salary forfeiture due to detention. The amendment was made by the authority of the Minister for Defence Science and Personnel under the Defence Act 1903, and the policy objective was to streamline and update the regulations to accurately reflect current salary determinations. The changes were deemed a "tidying-up" exercise that did not substantively affect rights, and thus did not contravene the Acts Interpretation Act 1901. The amendment took effect retrospectively from 4 June 1992, the date on which the previous salary determinations were superseded.
Scope and Application
The Defence Force Regulations (Amendment) 1995 No. 51 primarily concerns the administration and regulation of the Australian Defence Force, specifically addressing the forfeiture of salary for members undergoing detention. This amendment applies to members of the Permanent Forces, Emergency Forces, and Reserve Forces, focusing on the pecuniary benefits payable to these members. The scope of the amendment involves the correction of references to salary determinations that have been superseded by Determination No. 6 of 1992. The amendment rectifies references in the Principal Regulations to ensure that the correct source of salary is identified for the purpose of calculating salary forfeiture during detention. The change is retrospective, taking effect from 4 June 1992, when the superseded determinations were replaced. The amendment does not disadvantage any member’s rights or impose new liabilities, as confirmed by the Attorney-General's Department. This legislative adjustment ensures that the regulations remain aligned with the current framework governing the remuneration of Defence Force members.
Key Provisions
The Defence Force Regulations (Amendment) 1995 No. 51 amends the Defence Force Regulations to correct references that were previously incorrect. The primary focus is on ensuring that the regulations correctly reference the relevant salary determinations for members of the Defence Force undergoing detention. Specifically, the amendment corrects the references from Determination 0101 and Determination 0199 to Determination No. 6 of 1992, effective from 4 June 1992, when the latter replaced the former. This ensures that the regulations accurately reflect the current sources for salary determinations.
The Defence Force Regulations (Amendment) 1995 No. 51 imposes certain obligations on the Defence Force, particularly in relation to the correct referencing of salary determinations for members undergoing detention. This amendment ensures that the regulations are in line with the current legislative framework governing salary determinations, thus maintaining consistency and accuracy in the application of salary forfeiture rules. The Defence Force must ensure that the correct salary determinations are applied to members of the Permanent Forces and Reserve Forces when they are undergoing detention, which is now aligned with Determination No. 6 of 1992.
There are no specific offences, penalties, or consequences mentioned in the explanatory statement for breaches of the Defence Force Regulations (Amendment) 1995 No. 51. The amendment is a corrective measure aimed at ensuring that the regulations accurately reflect the applicable salary determinations, rather than imposing new obligations or penalties. The primary consequence of not making this amendment would be that the regulations would continue to incorrectly reference outdated salary determinations, potentially leading to errors in the application of salary forfeiture rules during detention. However, since the amendment is a "tidying-up" exercise, it does not substantively affect rights or impose liabilities, according to the Attorney-General's Department.