EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 300
Issued by the authority of the Minister for Defence
Defence Act 1903
Defence (Personnel) Amendment Regulations 2007 ( No. 2)
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 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.
The Australian Defence Force Gap Year (ADFGY) has been introduced to provide an opportunity for young adults to experience military training and lifestyle in a program for up to 12 months. The program is open to persons between 17 and 24 years of age who have completed year 12 or equivalent education, within the two years prior to their application to join it.
While most of the program can be handled under existing provisions, an amendment is required to regulation 64 of the Principal Regulations, which currently provides for the automatic transfer of a member to the Reserves upon the completion of a period of service. The Regulations amend regulation 64 to provide that members of ADFGY are not automatically transferred to the Reserves at the completion of their period of service unless they either opt to continue in fulltime service in the ADF or transfer to the Reserves.
The proposed Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
There has been no consultation in the making of this instrument as it relates to the management of the Australian Defence Force
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Overview
The Defence (Personnel) Regulations 2002 Amendment Regulations 2007 (No. 2) were introduced to facilitate the creation of the Australian Defence Force Gap Year (ADFGY) program, which is designed to offer young adults an opportunity to engage in military training and experience for up to 12 months. These regulations were enacted to address the need for specific provisions to accommodate the ADFGY program within the existing framework of the Defence Act 1903. The Minister for Defence, under the authority of the Act, made these amendments to align the regulations with the new program, ensuring that participants in the ADFGY are not automatically transferred to the Reserves upon the completion of their service unless they choose to continue in full-time service or transfer to the Reserves. This legislative instrument was created under the Legislative Instruments Act 2003 and took effect the day after its registration on the Federal Register of Legislative Instruments.
The Defence Act 1903 empowers the Governor-General to enact regulations necessary for the good governance of the Defence Force, and these amendments to the Defence (Personnel) Regulations 2002 are intended to streamline the enlistment and service processes for the ADFGY participants. The policy objective is to provide a structured pathway for young adults to explore a military career while allowing flexibility in their service commitment post-program. The enactment of these regulations was done without consultation as it pertains to internal Defence Force management.
Scope and Application
The Defence (Personnel) Regulations 2007 (No. 2) amend the Defence (Personnel) Regulations 2002 to facilitate the implementation of the Australian Defence Force Gap Year (ADFGY) program. This initiative is designed to provide young adults, aged between 17 and 24 years who have completed year 12 or equivalent, with an opportunity to experience military training and lifestyle for up to 12 months. The amendment applies specifically to the members of the ADFGY, modifying regulation 64 to ensure that these individuals are not automatically transferred to the Reserves upon completing their service unless they choose to continue in full-time service or opt for a transfer to the Reserves. These Regulations are made under the authority conferred by subsection 124(1) of the Defence Act 1903 and serve to enhance the management and administration of Defence Force personnel, particularly those participating in the ADFGY program. The Regulations will take effect on the day following their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Defence (Personnel) Amendment Regulations 2007 (No. 2) make several amendments to the Defence (Personnel) Regulations 2002 (Principal Regulations) under the Defence Act 1903. One of the key changes is to regulation 64, which deals with the transfer of Defence Force members to the Reserves (s. 64). The amendment specifies that members who participate in the Australian Defence Force Gap Year (ADFGY) will not be automatically transferred to the Reserves upon completing their service unless they choose to continue in full-time service or transfer to the Reserves themselves (s. 64(3)). This change allows ADFGY participants more flexibility in their career choices after completing their gap year program.
These Regulations impose specific obligations on the Defence Force and its members, particularly those participating in the ADFGY. The Defence Force must ensure that members who complete the ADFGY are not automatically transferred to the Reserves unless they make an active choice to continue in full-time service or transfer to the Reserves (s. 64(3)). Members who complete the ADFGY must also be informed of their options regarding continuation in service or transfer to the Reserves, and they must make their decision within a specified timeframe to ensure compliance with the Regulations (s. 64(3)).
Failure to comply with these Regulations could lead to unintended consequences for both the Defence Force and the affected members. Although the Regulations do not explicitly state penalties for non-compliance, breaches of Defence Act provisions or Defence Force regulations can lead to disciplinary action, including reduction in rank, discharge, or other administrative measures. Additionally, if a member is not properly transferred or informed of their options, they may face legal or administrative issues related to their service status or entitlements.
The Defence (Personnel) Amendment Regulations 2007 (No. 2) do not introduce new criminal or civil offences. However, they do impose clear obligations on the Defence Force and its members, and failure to comply with these obligations can result in serious administrative or disciplinary consequences. The maximum penalties for breaches of Defence Act provisions are not specified in the Regulations themselves but are detailed in the Defence Act and related instruments. These penalties can include fines, imprisonment, or other administrative sanctions depending on the nature and severity of the breach.