Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2019

Administered by Department of Defence

Legislation au F2019L00119 Rules Not in force Legislative Instrument

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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  • Tribunal decisions relating to the Victoria Cross for Australia, or the Victoria Cross will not be published on the Tribunal’s website before the outcome of the recommendation has been determined by the Minister or the Governor‑General.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.

 

Overview

The Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2019, enacted under the Defence Act 1903, addresses the need to revise the procedural rules of the Defence Honours and Awards Appeals Tribunal concerning the handling of decisions and recommendations related to the Victoria Cross for Australia and the Victoria Cross. This amendment was introduced to ensure that decisions involving these prestigious awards are handled with the appropriate level of respect and protocol, and to align the procedural rules with the significant nature of these awards. The rule was made following an internal review and consultation with the Tribunal members, as mandated by subsection 110XH(1) of the Defence Act 1903, which allows the Chair of the Tribunal to amend procedural rules by legislative instrument. The policy objective behind this amendment is to maintain the integrity and solemnity associated with these high-ranking military decorations by ensuring timely communication of decisions and the appropriate timing of their public disclosure.

Scope and Application

The Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2019 amends the Defence Honours and Awards Appeals Tribunal Procedural Rules 2011, which govern the practice and procedure of the Defence Honours and Awards Appeals Tribunal. This amendment applies to decisions made by the Tribunal that include recommendations concerning the Victoria Cross for Australia or the Victoria Cross. The Tribunal must provide copies of its decisions to the applicant and the Secretary of the Department of Defence only after the outcome of any such recommendations has been determined by the Minister or the Governor-General. Additionally, decisions relating to the Victoria Cross for Australia or the Victoria Cross will not be published on the Tribunal’s website until the recommendation’s outcome has been determined. This amendment ensures a protocol that respects the significance and solemnity of decisions involving the highest military honours in Australia. The instrument is made under subsection 110XH of the Defence Act 1903, which grants the Chair of the Tribunal the authority to make procedural rules, provided they do not conflict with the Act, and follows consultation with the Tribunal members. The amendment applies on a national level and will commence on the day after its publication on the Federal Register of Legislation.

Key Provisions

The Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2019 amends the Defence Honours and Awards Appeals Tribunal Procedural Rules 2011 (the Rules). The primary change pertains to the Tribunal’s decisions on recommendations relating to the Victoria Cross for Australia or the Victoria Cross. Under the amended Rules, when the Tribunal makes a decision that includes a recommendation related to these high honours, it must provide the applicant and the Secretary of the Department of Defence with 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 (Rule 15A). Additionally, decisions regarding the Victoria Cross for Australia or the Victoria Cross will not be published on the Tribunal’s website until the Minister or the Governor-General has determined the outcome of the recommendation (Rule 15A(5)). Conversely, decisions that do not involve these honours will continue to be provided to the applicant and the Secretary of the Department of Defence as soon as practicable after the decision is made, and will be published on the Tribunal’s website following this (Rule 15A(4)). The amendment imposes specific procedural obligations on the Tribunal. It mandates that when a decision involves a recommendation related to the Victoria Cross for Australia or the Victoria Cross, the Tribunal must notify both the applicant and the Secretary of the Department of Defence of the decision promptly after the Minister or the Governor-General has made a determination on the recommendation. Furthermore, it requires that such decisions are not published on the Tribunal’s website until this determination is made, thereby ensuring a level of confidentiality and protocol in handling these significant recommendations. For decisions not involving these honours, the existing procedure of timely notification and subsequent publication on the website is maintained. Breaching these amended procedural requirements could potentially result in legal ramifications. While the Rules themselves do not specify explicit penalties for non-compliance, any failure to adhere to the legislative mandates of the Defence Act 1903 or the Acts Interpretation Act 1901 could be subject to broader legal consequences. These could include judicial review or other administrative actions to enforce compliance with the statutory requirements. The Rules, however, are primarily designed to ensure that the Tribunal operates within the bounds of its legislative authority and fulfills its obligations in a manner consistent with the overarching legislative framework. This amendment to the Rules does not engage any of the applicable rights or freedoms recognised or declared in the international human rights instruments. The Statement of Compatibility with Human Rights confirms that the instrument is compatible with human rights, as it does not infringe upon any rights or freedoms protected under the Human Rights (Parliamentary Scrutiny) Act 2011. The changes are procedural and are aimed at maintaining the integrity and protocol associated with the highest military honours in Australia, without impacting on the broader human rights of individuals involved in the appeals process.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.