EXPLANATORY STATEMENT
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule 2013 (No. 1).
Issued by the authority of the Chair of the Defence Honours and Awards Appeals Tribunal
Defence Act 1903
General Summary
Introduction
Part VIIIC of the Defence Act 1903 (the Act) establishes the independent Defence Honours and Awards Appeals Tribunal.
Section 110XH of the Act provides that:
(1) After consulting the other Tribunal members, the Chair may, by legislative instrument, make procedural rules (not inconsistent with this Part) in relation to the practice and procedure to be followed by or in relation to the Tribunal.
The Defence Honours and Awards Appeals Tribunal Procedural Rules 2011 (the Rules) determine the Tribunal’s procedure.
In respect of Defence honours the Tribunal is able to review a decision concerning a nomination for a Defence honour (other than an honour in the Military Division of the Order of Australia) and may affirm a decision or recommend to Government the revocation of a decision, substitution of a new decision or variation of a decision in accordance with extant eligibility criteria.
Under Rule 15 of the Rules, the Tribunal currently is required to publicise on its website its decision of the review of a reviewable decision in relation to a defence honour, however it could not, without the express permission of the applicant, publicise its decision of the review of a reviewable decision in relation to a defence award or a foreign award.
The amendments to Rule 15 of the Rules will allow the Tribunal to publicise on its website its decisions on the review of reviewable decisions in relation to defence awards and foreign awards.
Under the amendment to the Rules, the name of the applicant and any information which is likely to identify the person, may still be redacted from the Tribunal’s decision at the discretion of the Chair. Allowing the Tribunal to publish decisions on reviewable decisions in relation to defence awards and foreign awards will allow greater transparency of the Tribunal’s operations and will allow future applicants a better insight into the conduct of the Tribunal’s reviews.
Consultation
The members of the Defence Honours and Awards Appeals Tribunal were consulted in the amendment to the Rules.
The Defence General Counsel was consulted during the amendment to the Rules.
Office of Parliamentary Counsel drafted the amendment to the Rules.
Regulation Impact Analysis
The amendment will not have regulatory impact on business activity and a Regulatory Impact Statement is not required.
Legal authority for instrument
Authority: Section 110XH of the Defence Act 1903.
Details of the amendment are outlined in Attachment 1.
The Act specifies no conditions that need to be satisfied before the power to make or amend the Rules may be exercised.
The Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The amendment will commence on the day after it is published on the Federal Register of Legislative Instruments.
Attachment 1
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule 2013 (No. 1).
Section 1 Name of procedural rule
This section provides that the name of the procedural rule is the Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule 2013 (No. 1).
Section 2 Commencement
This section provides that the procedural rule commences on the day after registration.
Section 3 Authority
This section specifies that the procedural rule is made under subsection 110XH of the Defence Act 1903.
Section 4 Schedule
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1- Amendments
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule 2013 (No. 1).
Item 1. Repeals Rule 15 and substitutes the amendment.
(This rule provides details of how and when the Tribunal may publish its decision in relation to a review of a reviewable decision).
15 Making Tribunal's decisions available
(1) The Tribunal is required to provide a copy of its decision to the applicant and Secretary as soon as practicable after a decision has been made. This enables the Secretary to implement decisions of the Tribunal, and for the Secretary to be aware of any recommendations the Tribunal makes for the Minister’s consideration.
Defence Honour
(2) Hearings in relation to defence honours are generally undertaken in public. When this occurs, the Tribunal must publish the decision of the review on its website, but must not contain classified material.
(3) Hearings that have taken place in relation to defence honours may, at the discretion of the Chair and for certain specified reasons, be undertaken in private. These reasons include sensitivity of the matter, privacy to ensure fairness to a person involved in the review, or for matters of national security. Where the Chair directs that a hearing takes place in private, the Chair must then decide whether to publish the Tribunal’s decision on its website. This report must not contain classified material.
Defence award or foreign award
(4) The Tribunal will publicise on its website its decisions on the review of reviewable decisions in relation to defence awards and foreign awards. This notification must not contain classified material. The name of the applicant and any information which is likely to identify the person, may still be redacted from the Tribunal’s decision at the discretion of the Chair or at the request of the applicant.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence Honours and Awards Appeals Tribunal Procedural Rule 2013 (No. 1).
This amendment is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Instrument
The amendment to the existing Defence Honours and Awards Appeals Tribunal Procedural Rules 2011 deals with the publication of the Tribunal’s decisions.
Under Rule 15 of the Procedural Rules introduced in 2011 when the Tribunal commenced operating as a statutory body, the Tribunal was required to publicise on its website its decision of the review of a reviewable decision in relation to a defence honour, however it could not publicise its decision of the review of a reviewable decision in relation to a defence award or a foreign award.
The amendment will allow the Tribunal to publicise on its website its decisions on the review of reviewable decisions in relation to defence awards and foreign awards.
Under the amendment, the name of the applicant, and any information which is likely to identify the person, may be redacted from the Tribunal’s published decision at the discretion of the Chair.
Allowing the Tribunal to publish decisions on reviewable decisions in relation to defence awards and foreign awards will allow greater transparency of the Tribunal’s operations and will allow future applicants a better insight into the conduct of the Tribunal’s reviews.
Human rights implications
The amendment engages the following human right in relation to the International Covenant on Civil and Political Rights (ICCPR):
Article 17 of the ICCPR, Privacy and Reputation
Previously, the Tribunal did not publicise its decisions regarding reviews of defence awards on its website. However, applicants will still be able to request that their name, and any information which may identify the applicant, may be redacted from the Tribunal’s published decision at the discretion of the Chair. This will protect the privacy of individuals who wish to exercise that right in respect of their review by the Tribunal.
The amendment will have a positive impact by improving the transparency of government decision making in relation to defence awards and foreign awards.
Conclusion
The amendment is compatible with human rights because it advances the protection of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.