EXPLANATORY STATEMENT
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2019
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:
- Under the previous Rules, in respect of reviews conducted by the Tribunal, the Tribunal’s written decisions were provided to the applicant and the Secretary of the Department of Defence as soon as practicable after the Tribunal’s decision was made.
- Under the amended Rules, where the Tribunal’s decision includes a recommendation in relation to the Victoria Cross for Australia or the Victoria Cross, the Tribunal must give the applicant and the Secretary of the Department of Defence a copy of the decision as soon as practicable after the outcome of the Tribunal’s recommendation has been determined by the Minister or the Governor-General.
- Tribunal decisions relating to the Victoria Cross for Australia, or the Victoria Cross will not be published on the Tribunal’s website before the outcome of the recommendation has been determined by the Minister or the Governor‑General.
- Recommendations that do not relate to the Victoria Cross for Australia or the Victoria Cross will continue to be made available to the applicant and the Secretary of the Department of Defence as soon as practicable after it has made its decision, and will be published on the Tribunal’s website after this occurs.
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) 2019
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) 2019.
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 – Subrules 15(2) to (5) This item repeals subrules 15(2) to (5), and makes new subrules (2) and (3) which concern reviews where the Tribunal’s decision includes a recommendation in relation to the Victoria Cross for Australia or the Victoria Cross. Following these reviews the Tribunal must give the applicant and the Secretary of the Department of Defence a copy of the decision as soon as practicable after the outcome of the recommendation has been determined by the Minister or the Governor-General.
Item 2 – Rule 15A. This item transitions the previous subrules 15(2) to 15(5), to subrule 15A(1) to 15A(4). The new subrule 15A(5) specifies that where Tribunal decision relate to the Victoria Cross for Australia, or the Victoria Cross, the decision must not be published on the Tribunal’s website before the outcome of the Tribunal’s recommendation has been determined by the Minister or the Governor-General.
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) 2019
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:
- Under the previous Rules, in respect of reviews conducted by the Tribunal, the Tribunal’s written decisions were provided to the applicant and the Secretary of the Department of Defence as soon as practicable after the Tribunal’s decision was made.
- Under the amended Rules, where the Tribunal’s decision includes a recommendation in relation to the Victoria Cross for Australia or the Victoria Cross, the Tribunal must give the applicant and the Secretary of the Department of Defence a copy of the decision as soon as practicable after the outcome of the Tribunal’s recommendation has been determined by the Minister or the Governor-General.
- Tribunal decisions relating to the Victoria Cross for Australia, or the Victoria Cross will not be published on the Tribunal’s website before the outcome of the recommendation has been determined by the Minister or the Governor‑General.
- Recommendations that do not relate to the Victoria Cross for Australia or the Victoria Cross will continue to be made available to the applicant and the Secretary of the Department of Defence as soon as practicable after it has made its decision, and will be published on the Tribunal’s website after this occurs.
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.