EXPLANATORY STATEMENT
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2018
Issued by the authority of the Chair of the Defence Honours and Awards Appeals Tribunal
Defence Act 1903
Summary
Part VIIIC of the Defence Act 1903 (the Act) establishes the independent Defence Honours and Awards Appeals Tribunal (the Tribunal).
Subsection 110XH(1) of the Act provides:
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.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
This instrument, which amends the Rules, was made following an internal review of the efficacy of the Rules.
This instrument amends the Rules as follows:
- Defence will have 60 days to give a report to the Tribunal where a matter relates to an honour, increased from 30 days (which will continue to apply for matters relating to awards). The Tribunal will continue to be able to extend the time in both cases.
- The Chair of the Tribunal may determine to review a matter on the papers, without conducting a hearing, provided both the applicant and the Secretary of Defence agree.
- The position for all Tribunal hearings will be to hold them in public. Previously, the default position for matters relating to awards was to conduct hearings in private. A decision to hold all or part of a hearing in private may be made by the Chair of the Tribunal or the presiding Tribunal member.
- The Tribunal’s discretion to permit or refuse a written request by an applicant to be represented by another person at a hearing will now also apply in relation to legal practitioners.
Consultation
The members of the Tribunal were consulted before the Rules were amended.
The amendment was drafted by Defence Legal.
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
Section 110XH of the Defence Act 1903.
The Act specifies no conditions that need to be satisfied before the power to make or amend the Rules may be exercised, apart from consultation with the members of the Tribunal. This has occurred.
The Rules are a legislative instrument for the purposes of the Legislation Act 2003.
Commencement
The amendment will commence on the day after it is published on the Federal Register of Legislation.
Details of the amendments are outlined in Attachment 1.
Attachment 1
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2018
Section 1 Name
This section provides that the name of the instrument is the Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2018.
Section 2 Commencement
This section provides that the instrument will commence on the day after it is registered.
Section 3 Authority
This section states that the instrument 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 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
The Schedule makes amendments to the Defence Honours and Awards Appeals Tribunal Procedural Rules 2011.
Item 1 – Rule 3 (definition of Regulations). This item amends the definition of Regulations to take account of the repeal in 2016 of the Defence Force Regulations 1952 and their replacement with the Defence Regulation 2016.
Item 2 – Subrule 7(3). This item repeals and replaces subrule 7(3), which deals with the length of time the Secretary of Defence has to give the Tribunal a report on a reviewable decision to which an application to the Tribunal relates. Previously, the Secretary had 30 days in all cases. Now, for matters relating to honours, the time is increased to 60 days. In all cases, there will continue to be a mechanism for the Secretary to seek more time from the Tribunal (subrule 7(6)).
Items 3 and 5 – Rule 11 (heading) and subrule 11(1). These items change rule 11 so that it applies to hearings in all reviews of reviewable decisions conducted by the Tribunal. Previously, rule 11, which provides a default position that hearings are to be held in public, applied only to matters relating defence honours.
Items 4, 6, 7 and 8 – Subrules 11(1), 11(2), 11(3) and 11(4). These items change rule 11 so that both the Chair of the Tribunal and the presiding Tribunal member may decide that all or part a Tribunal hearing may be heard in private. Previously, only the Chair could make this decision. An application for a private hearing may be made on the day of the hearing, and may only relate to some of the evidence. It would be cumbersome for the Tribunal to adjourn on the day to enable the Chair to make a decision. These amendments enable the presiding Tribunal member to make an immediate decision, so that the hearing can continue immediately.
Item 9 – Rule 12. This item repeals rule 12, which provided that a hearing of a review of a reviewable decision in relation to defence awards was to be conducted in private. This rule is no longer required, due to the amendment to rule 11. A new rule 12 has been inserted, which enables the Chair of the Tribunal to direct that a review be conducted without a hearing (that is, on the papers only). The Chair may only make such a direction if both the applicant to the Tribunal and the Secretary of Defence agree that the review may be conducted without a hearing.
Items 10 to 13 – Subrules 13(2), 13(2A) and 13(3). These items amend rule 13 so that the Tribunal’s discretion in relation to permitting an applicant to be represented by another person at a hearing includes being represented by a legal practitioner. Previously, the rule did not apply to representation by legal practitioners. These items also make minor amendments to clarify the definition of legal practitioner.
Items 14 to 18 – Rule 15. These items make consequential amendments to rule 15, which deals with publishing Tribunal decisions. To reflect the changes to rules 11 and 12, the items remove the distinction between matters dealing with honours and awards, providing for situations where hearings are conducted in public, in private, or where a review is conducted without a hearing. There is no substantive change to the effect of rule 15. Publication of a Tribunal decision relating to a review that is conducted without a hearing is treated the same as publication of a Tribunal decision relating to a review that involves a private hearing.
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 (No. 1) 2018
This legislative instrument 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
This instrument amends the Defence Honours and Awards Tribunal Procedural Rules 2011 as follows:
- Defence will have 60 days to give a report to the Tribunal where a matter relates to an honour, increased from 30 days (which will continue to apply for matters relating to awards). The Tribunal will continue to be able to extend the time in both cases.
- The Chair of the Tribunal may determine to review a matter on the papers, without conducting a hearing, without holding a hearing, provided both the applicant and the Secretary of Defence agree.
- The position for all Tribunal hearings will be to hold them in public. Previously, the position for matters relating to awards was to conduct hearings in private. The Chair or the presiding Tribunal member may decide that all or part of a hearing is to be held in private.
- The Tribunal’s discretion to permit or refuse a written request by an applicant to be represented by another person at a hearing will now also apply in relation to legal practitioners.
Human rights implications
This instrument does not engage any of the applicable rights or freedoms.
Conclusion
This instrument is compatible with human rights as it does not engage any of the applicable rights or freedoms.