EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 181
Issued by the authority of the Minister for Defence.
Defence Act 1903
Defence (Personnel) Amendment Regulations 2007(No. 1)
Subsection 124(1) of the Defence Act 1903 (the Act) provides, in part, 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 Australian Defence Force (ADF), 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 ADF.
On 2 April 2007, the Minister for Defence (the Minister) announced that to enable the ADF to retain the skills and experience of its highly trained people for longer, the compulsory retirement age of 55 for the majority of ADF members would be raised to 60 years. As a result of this change the compulsory retirement age for permanent members of the ADF up to and including the rank of Brigadier (or equivalent) will be increased to 60 years and the compulsory retirement age for reservists will be increased to 65 years. The Regulations give effect to these changes.
The Regulations amend the Principal Regulations to permit the Minister to extend the compulsory retirement age of specified officers from 65 to any age, and permit a Service Chief to extend the current compulsory retirement age for a specified enlisted member beyond the current age of 65 years to any age.
Continued military service remains subject to ADF members maintaining their health and physical fitness standards, irrespective of age.
The Regulations also align the retirement age of Chaplains with the wider ADF with a compulsory retirement age of 60 for permanent members and 65 for reservists. The Regulations also permit the Minister to extend a Chaplain’s compulsory retirement age beyond 65 years of age.
Transitional provisions in the Regulations permit members of the ADF who had elected to retain the old retirement ages, to retire at the retirement ages specified in the Principal Regulations.
Details of the Regulations are outlined in the Attachment.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The proposed Regulations commence on 1 July 2007.
There has been no consultation in the making of this instrument as it relates to the management of and the service of members of the Australian Defence Force.
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Attachment
Details of the Defence (Personnel) Amendment Regulations 2007 (No. 1)
Regulation 1 identifies these Regulations as the Defence ( Personnel) Amendment Regulations 2007 (No. 1).
Regulation 2 provides that the Regulations commence on 1 July 2007.
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 9(1) by omitting the words ‘this regulation commences’ and inserts the numbers and word ‘1 July 2007’. This amendment reflects the commencement of the amending regulation as 1 July 2007.
Item [2] amends subregulation 9(3) by omitting the word ‘old’ and inserting the word ‘former’. This amendment ensures consistency of language with the Principal Regulations.
Item [3] amends paragraph 9(5) (a) by omitting the words ‘before this regulation commences’ and inserting the numbers and word ‘1 July 2007’. This reflects the commencement of the amending regulation as 1 July 2007.
Item [4] amends paragraph 9(5) (b) by omitting the words ‘before this regulation commences and inserting the numbers and word ‘1 July 2007’. Once again this reflects the commencement date of the amending regulation of 1 July 2007.
Item [5] amends subregulation 10(1) by omitting the words ‘this regulation commences’ and inserting the numbers and word ‘1 July 2007’. This reflects the commencement date of the amending regulation as 1 July2007.
Item [6] amends subregulation 10(3) by omitting the word ‘old ‘and inserting the word ‘former’. Again, this amendment reflects consistency of language with the Principal Regulations.
Item [7] amends paragraph 10(5) (a) by omitting the words ‘before this regulation commences’ and inserting the numbers and word ‘1 July 2007’. For this and the following item, this amendment reflects the commencing date of the amending regulations as being 1 July 2007.
Item [8] amends paragraph 10(5) (b) by omitting the words ‘before this regulation commences and insert the numbers and word ‘1 July 2007’.
Item [9] substitutes a new regulation 11 for the existing regulation 11, relating to the extension of the compulsory retirement age for officers and provides that the Minister for Defence may extend the compulsory retirement age for officers to any age or for a specified period. Subregulation 11(2) provides that where the Minister appoints an officer under subregulation 15(2) for a specified period or until a specified age, the end of that period or age marks the compulsory retirement age for that officer. Subregulation 11(3) provides that if the compulsory retirement age for an officer is extended or altered under subregulations 11(1) or (2) the officer’s compulsory retirement date is taken to be the extended or altered age for the purpose of the Principal Regulations.
This item also substitutes a new regulation 12 for the existing regulation 12 relating to the extension of compulsory retirement age for enlisted members and provide that a Chief may extend the compulsory retirement age for a member of the Chief’s service to any age or for a specified period. Subregulation 12(2) provides that where a person is appointed under subregulation 25(3) for a specified period or until a specified age, the end of that period or age marks the compulsory retirement age for that enlisted member. Subregulation 12(3) provides that if the compulsory retirement age for an enlisted member is extended or altered under subregulations 12 (1) or (2), the enlisted member’s compulsory retirement date is taken to be the extended age or altered age for the purpose of the Principal Regulations.
Item [10] amends paragraph 15(2) (b) by omitting the number ‘65’ and inserting the number ‘70’.
Item [11] amends paragraph 25(3) (b) by omitting the number ‘65’ and inserting the number ‘70’.
Item [12] substitutes a new regulation 116 for the existing regulation relating to the retirement of chaplains and aligns their retirement age with the wider Australian Defence Force, by making the compulsory retirement age for chaplains in the permanent force 60 years and 65 years for reserves. Subregulation 116(2) enables the Minister to extend the compulsory retirement age of chaplains to any age.
Subregulation 116(3) provides that the Chief of the Service in which the chaplain is serving may apply to the Minister to retain the chaplain in the reserves before the chaplain in the permanent forces reaches his or her compulsory retirement age. The Minister may approve the application if the chaplain and Principal Chaplain (if any) agree to the application. If approved, the Minister must specify the category of the reserves in which the chaplain will serve.
Item [13] inserts a new regulation 126 after regulation 125 dealing with transitional arrangements for compulsory retirement age for members. This regulation defines ‘former regulations’ as the regulations in effect immediately before 1 July 2007, ‘former retirement age’ as the retirement age specified for members as they were immediately before 1 July 2007 and ‘old retirement age’ as the retirement age for members as they were immediately before 22 March 2002, being the date of commencement of the Principal Regulations. Subregulation 126(2) provides that if a member elected to retain the old retirement age under the former regulation, the member may continue that election under these regulations, however the election has to be given to the Chief of the member’s service before the member reaches the earlier of the old and former retirement ages. Where a member makes an election under subregulation (2), his or her compulsory retirement age would be the old retirement age. Transitional provisions ensure that if under the former regulations a member was offered the opportunity to elect to serve until reaching the former retirement age and did not so elect, the member’s retirement age is the old retirement age unless the member’s Service Chief allows the member to elect to serve until reaching the former retirement age.
This item also inserts a new regulation 127 dealing with transitional provisions for alteration of compulsory retirement age for chaplains. This regulation defines ‘former regulations’ as the regulations in effect immediately before 1 July 2007, ‘former retirement age’ as the retirement age specified for a chaplain as they were immediately before 1 July 2007 and’ old retirement age’ as the retirement age for members as they were immediately before 22 March 2002, being the date of commencement of the Principal Regulations. Subregulation 127(2) provides that if a chaplain elected to retain the old retirement age under the former regulations, the chaplain may continue that election under these regulations, however, the election has to be given to the Chief of the chaplain’s service before the chaplain reaches the earlier of the old and former retirement ages. Where a chaplain makes an election under subregulation (2), his or her compulsory retirement age would be the old retirement age. Transitional provisions ensure that if under the former regulations a chaplain was offered the opportunity to elect to serve until reaching the former retiring age and did not so elect, the chaplain’s retiring age is the old retiring age unless the chaplain’s Service Chief allows the chaplain to elect to serve until the former retiring age.
Item [14] to Item [16] would amend Schedule 1 to the Principal Regulations by making the necessary amendments to the Schedule to show that the compulsory retirement age for permanent members up to and including the rank of Brigadier (or equivalent) is to be increased to 60 and the compulsory retirement age for reserves increased to 65.