EXPLANATORY STATEMENT
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rule (No. 1) 2021
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, the Tribunal was required to give the applicant and the Secretary a copy of its decision on the review of a reviewable decision as soon as practicable after it had made its decision, unless the recommendation of the review related to the Victoria Cross or Victoria Cross for Australia.
- Under the previous rules, where the Tribunal’s decision included a recommendation in relation to the Victoria Cross for Australia or the Victoria Cross, the Tribunal was required to 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 had been determined by the Minister or the Governor-General.
- Tribunal decisions relating to the Victoria Cross for Australia, or the Victoria Cross were not published on the Tribunal’s website before the outcome of the recommendation had been determined by the Minister or the Governor‑General.
- Under the amended Rules, the Tribunal’s written decisions are provided to the applicant and the Secretary of the Department of Defence within a reasonable period after the Tribunal’s decision is made, and may be published on the Tribunal’s website before the outcome of the Tribunal’s recommendation has been determined, regardless of whether the recommendation of the review related to the Victoria Cross, the Victoria Cross for Australia, or another defence honour or defence award.
Consultation
The members of the Tribunal were consulted before the Rules were amended.
The amendment was drafted by the Defence Honours and Awards Appeals Tribunal Secretariat.
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) 2021
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 – Rule 15 This item repeals Rule 15 and makes new sub-rules 15(1) and (2). Following review of decisions that include a recommendation to a Minister, the Tribunal must give that Minister and the Secretary and the applicant a copy of its decision on the review of a reviewable decision within a reasonable period after it has made the decision. Where a decision does not include a recommendation to a Minister, the Tribunal must give the Secretary and the applicant a copy of its decision on the review of a reviewable decision within a reasonable period after it has made the decision.
Item 2 – Rule 15A. This item amends the previous Rule 15A to delete sub-rule (5) which 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, the Tribunal was required to give the applicant and the Secretary a copy of its decision on the review of a reviewable decision as soon as practicable after it had made its decision, unless the recommendation of the review related to the Victoria Cross or Victoria Cross for Australia.
- Under the previous rules, where the Tribunal’s decision included a recommendation in relation to the Victoria Cross for Australia or the Victoria Cross, the Tribunal was required to 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 had been determined by the Minister or the Governor-General.
- Tribunal decisions relating to the Victoria Cross for Australia, or the Victoria Cross were not published on the Tribunal’s website before the outcome of the recommendation had been determined by the Minister or the Governor‑General.
- Under the amended Rules, the Tribunal’s written decisions are provided to the applicant and the Secretary of the Department of Defence within a reasonable period after the Tribunal’s decision was made, and may be published on the Tribunal’s website before the outcome of the Tribunal’s recommendation has been determined, regardless of whether the recommendation of the review related to the Victoria Cross, the Victoria Cross for Australia, or another defence honour or defence award.
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.