EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 47
Defence Act 1903
Issued by the authority of the Minister for Veterans’ Affairs
Defence (Personnel) Amendment Regulations 2005 (No. 1)
Subsection 124(1) of the Defence Act 1903 (the Act) provides that the
Governor-General may 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, or for carrying out or giving effect to the Act. The Defence (Personnel) Regulations 2002 (the Principal Regulations), made under the Act provide for, among other things, the enlistment, appointment, promotion, reduction in rank, retirement, transfer and discharge of members of the Defence Force.
Regulations 91, 94 and 98 of the Principal Regulations permit the Service Chiefs, for officers and enlisted members, or the Governor-General, for senior officers, to grant a member's request for resignation from the Defence Force. However, the Principal Regulations do not appear to authorise a revocation of such a decision. It had been assumed, in accordance with established legal principles, in particular subsection 33(3) of the Acts Interpretation Act 1901, that the power to grant a request also includes the power to revoke such a decision.
A recent decision of the Federal Court has cast doubt on the power of a Service Chief to revoke a decision to grant an enlisted member's resignation application under the existing legislation. The decision turned on the interpretation of the term "instrument". The meaning of this term appears equivocal, following recent case law, culminating in Laurence v Chief of Navy. The amendments to the Principal Regulations remove any such doubts by providing that the decision to grant a member's request for resignation must be made by instrument in writing. This enables such a decision to be revoked prior to the resignation taking effect.
Details of the amendments are outlined in the Attachment.
The Act specifies no condition that must be met before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. They commence on the day after they are registered on the Federal Register of Legislative Instruments
0501798A
Attachment
Defence (Personnel) Amendment Regulations 2005 (No. 1)
Regulation 1identifies these Regulations as the Defence (Personnel) Amendment Regulations 2005 (No. 1)
Regulation 2 provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 provides that the amendments to the Defence (Personnel) Regulations 2002 (the Principal Regulations) are contained in Schedule 1.
Schedule 1
Item 1 amends subregulation 91(1) by inserting ",by instrument in writing," after the word "must".
Item 2 amends subregulation 94(3) by omitting "may:" and inserting the words "may, by instrument in writing:".
Item 3 amends subregulation 98(1) by inserting ", by instrument in writing, " after the word "must".
Overview
The Defence (Personnel) Amendment Regulations 2005 (No. 1) were enacted to clarify the procedure for granting and revoking requests for resignation from the Defence Force, as provided for in the Defence Act 1903. The Regulations aim to address a gap identified in the Defence (Personnel) Regulations 2002, specifically regarding the authority to revoke a decision to grant a member's resignation application. This was necessitated by a recent Federal Court decision that cast doubt on the power of a Service Chief to revoke such a decision, due to ambiguity in the term "instrument." The Defence (Personnel) Amendment Regulations 2005 (No. 1) were issued under the authority of the Minister for Veterans’ Affairs and seek to ensure that the decision to grant a member's request for resignation is made by an instrument in writing, thereby enabling such a decision to be revoked before the resignation takes effect. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Scope and Application
The Defence (Personnel) Amendment Regulations 2005 (No. 1) amends the Defence (Personnel) Regulations 2002 to address the scope of the authority to grant and subsequently revoke a member's request for resignation from the Defence Force. The Defence Act 1903 empowers the Governor-General to make regulations necessary for the good governance of the Defence Force, which the Defence (Personnel) Regulations 2002 implement by setting out provisions for various personnel matters including resignation. However, following a Federal Court decision, there was uncertainty regarding whether the Service Chiefs or the Governor-General had the power to revoke a decision to grant a resignation. To clarify this, the 2005 Amendment Regulations specify that any decision to grant a member's request for resignation must be made "by instrument in writing," thereby enabling such a decision to be revoked prior to the resignation taking effect. The Regulations apply to all members of the Defence Force, including officers and enlisted members, and their amendments are effective from the day after registration on the Federal Register of Legislative Instruments. The Regulations do not set any specific conditions or thresholds for their application, thus providing a clear framework for the governance and management of Defence Force personnel.
Key Provisions
The Defence (Personnel) Amendment Regulations 2005 (No. 1) address specific provisions within the Defence (Personnel) Regulations 2002. These regulations primarily concern the enlistment, appointment, promotion, reduction in rank, retirement, transfer, and discharge of Defence Force members. The amendments focus on the process for granting and potentially revoking requests for resignation from the Defence Force. Regulation 91, Regulation 94, and Regulation 98 of the Principal Regulations permit the Service Chiefs or the Governor-General to grant a member's request for resignation from the Defence Force. However, the Principal Regulations do not explicitly authorize the revocation of such a decision. The recent court decision in Laurence v Chief of Navy has cast doubt on whether the Service Chief has the power to revoke a decision to grant an enlisted member's resignation application. The new amendments seek to clarify and resolve this uncertainty.
The Defence (Personnel) Amendment Regulations 2005 (No. 1) impose certain obligations on the Service Chiefs and the Governor-General. Under the new regulations, any decision to grant a member's request for resignation must be made by an instrument in writing. This written instrument must be provided to the member, which enables the decision to be revoked before the resignation takes effect. The requirement to use a written instrument ensures that the process is transparent and provides an opportunity for reconsideration or revocation if necessary. This amendment ensures that the authorities have a clear and documented process for handling resignation requests.
The Defence (Personnel) Amendment Regulations 2005 (No. 1) do not explicitly outline specific offences, penalties, or consequences for non-compliance with the new provisions. However, the failure to comply with the requirement to provide a written instrument for decisions on resignation requests could potentially lead to legal challenges or disputes regarding the validity of the resignation process. It is essential for the Service Chiefs and the Governor-General to adhere to the new written instrument requirement to avoid any legal uncertainties or challenges to the resignation decisions. Ensuring compliance with the new regulations is crucial to maintaining the integrity and legality of the Defence Force's personnel management processes.