Defence (Personnel) Amendment Regulations 2003 (No. 1) 2003 No. 246
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 246
Defence (Personnel) Amendment Regulations 2003 (No. 1)
Issued by the authority of the Minister for Veterans' Affairs
Subsection 124 (1) of the Defence Act 1903 (the Act) permits the Governor-General to make Regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the good government of the Defence Force; and amongst other things providing for the enlistment, appointment, promotion, reduction in rank, retirement and discharge of members of the Defence Force.
Subsection 124 (1AA) of the Act provides that regulations may make provision for the appointment or reappointment of a member, the enlistment or re-enlistment of a member or the service of a member.
The intention of regulations 57 and 61 of the Defence (Personnel) Regulations 2002 (the Principal Regulations), dealing with applications for withdrawal of an application for transfer, is to allow a person with legal authority to consider a withdrawal application at any point prior to the transfer taking effect. A similar intention with regard to applications for withdrawal of an application to resign applies to regulations 89, 93 and 96. Legal advice from the Attorney-General's Department is that the Principal Regulations, as worded, do not have this effect.
The purpose of the proposed regulations is to remove any doubt that a member of the Defence Force can apply to withdraw an application for a transfer, or a resignation, at any time up to the time the transfer or resignation takes effect.
The Act specifies no conditions that need to be met before the power to make the proposed regulations may be exercised.
Regulation 1 identifies these Regulations as the Defence (Personnel) Amendment Regulations 2003 (No. 1).
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 identifies the Regulations amended by Schedule 1 as the Defence (Personnel) Regulations 2002.
Schedule 1 makes the substantive amendments to the Regulations.
Item 1 inserts a new subregulation 57(4) to permit a member of the Defence Force other than a senior officer (a term discussed in item 2) to apply to withdraw an application to transfer at any time before the transfer application is granted or refused, or if the transfer has been granted, at any time before the transfer takes effect.
Item 2 inserts a new subregulation 61(3) to permit an officer with the rank of Rear-Admiral (or higher), Major-General (or higher) or Air Vice-Marshal or higher ("senior officers") to apply to withdraw an application to transfer at any time before the transfer application is granted or refused, or if the transfer has been granted, at any time before the transfer takes effect.
Item 3 adds a new subregulation 89(4) to allow an officer other than a senior officer to apply to withdraw an application to resign at any time before the resignation application is granted or refused, or if the resignation application has been granted, at any time before it takes effect.
Item 4 adds a new subregulation 93(4) to allow a senior officer to apply to withdraw an application to resign at any time before the resignation application is granted or refused, or if the resignation application has been granted, at any time before it takes effect.
Item 5 adds a new subregulation 96(4) to allow an enlisted member to apply to withdraw an application to resign at any time before the resignation application is granted or refused, or if the resignation application has been granted, at any time before it takes effect.
030613Z
Overview
The Defence (Personnel) Amendment Regulations 2003 (No. 1) were enacted to clarify and amend the Defence (Personnel) Regulations 2002, addressing a gap in the existing regulations regarding the ability of Defence Force members to withdraw applications for transfer or resignation. The intention behind these amendments is to remove any ambiguity about when a Defence Force member can withdraw an application for transfer or resignation, ensuring that such applications can be withdrawn at any time before the transfer or resignation takes effect. The regulations were enacted under the authority of the Minister for Veterans' Affairs and aim to align the regulations with the legal advice provided by the Attorney-General's Department, which highlighted the need for clearer provisions in the existing regulations. The Defence (Personnel) Amendment Regulations 2003 (No. 1) provide explicit provisions for the withdrawal of applications for transfer and resignation by Defence Force members, thereby ensuring that these applications can be withdrawn up until the point when the transfer or resignation would otherwise take effect.
Scope and Application
The Defence (Personnel) Amendment Regulations 2003 (No. 1) pertain to the governance and administrative procedures of the Australian Defence Force, specifically addressing the enlistment, appointment, promotion, reduction in rank, retirement, and discharge of its members. These regulations are a direct implementation of the Defence Act 1903, which empowers the Governor-General to enact regulations for the good governance of the Defence Force. The regulations aim to clarify and affirm the right of Defence Force members to withdraw applications for transfer or resignation at any time prior to the action taking effect. This legislative amendment rectifies an ambiguity in the Defence (Personnel) Regulations 2002, which previously did not explicitly allow for such withdrawals. The regulations apply to all members of the Defence Force, including officers and enlisted members, and do not specify any thresholds or exemptions. The changes are effective immediately upon gazettal and are intended to provide certainty and fairness in the administrative processes concerning personnel within the Defence Force.
Key Provisions
The main operative sections of the Defence (Personnel) Amendment Regulations 2003 (No. 1) (the Regulations) introduce amendments to the Defence (Personnel) Regulations 2002 (the Principal Regulations). Specifically, Regulation 3 identifies the Principal Regulations as being amended by Schedule 1. The substantive changes are introduced via Schedule 1, with items 1 through 5 amending specific subregulations. For instance, Item 1 introduces a new subregulation 57(4) that allows a member of the Defence Force other than a senior officer to apply to withdraw an application for transfer at any time up until the transfer application is granted or refused, or if the transfer has been granted, before the transfer takes effect. Similarly, Items 3, 4 and 5 amend subregulations 89(4), 93(4) and 96(4) respectively, to allow officers and enlisted members to withdraw applications to resign under similar conditions.
The Regulations impose certain obligations and requirements on members of the Defence Force and the relevant officers. For example, under the new subregulations, members of the Defence Force other than senior officers (Item 1), senior officers (Item 2), officers other than senior officers (Item 3), senior officers (Item 4) and enlisted members (Item 5) can apply to withdraw applications for transfer or resignation at any time before the application is granted or refused, or if granted, before the transfer or resignation takes effect. These provisions ensure that members of the Defence Force have the flexibility to reconsider their applications for transfer or resignation up until the moment the action takes effect.
The Regulations do not explicitly outline specific offences, penalties, or consequences for breaches of these provisions. However, it is reasonable to infer that any failure to comply with these provisions could potentially lead to administrative or disciplinary actions within the Defence Force, given the nature of the regulations and the context in which they operate. Given that the Defence (Personnel) Regulations 2002 and the Defence Act 1903 govern the conduct and administrative procedures of the Defence Force, any breaches of these regulations could lead to disciplinary actions, administrative penalties, or other consequences as prescribed within the broader legislative framework.