EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 301
Issued by the authority of the Minister for Veterans’ Affairs
Defence Act 1903
Defence (Personnel) Amendment Regulations 2007 (No. 3)
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.
In its Report into Military Justice in the Australian Defence Force in 1999, the Joint Standing Committee on Foreign Affairs, Defence and Trade (the Committee) recommended that the Australian Defence Force (ADF), review its current procedural arrangements to ensure organisational separation between the initiating officer and the decision maker for all administrative action involving the termination of a member’s service with the ADF.
The Government accepted this recommendation of the Committee and agreed to amend the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Regulations as well as the relevant Defence Instruction dealing with, among other matters, the termination of appointment of officers. As a consequence, the termination provisions for the service of members of the ADF in the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Regulations were deleted and inserted into the Principal Regulations. However, the termination provisions in regulations 85 and 87 of the Principal Regulations did not, on their face, clearly separate the functions of the initiator and decision maker in the termination of a member’s service.
The Regulations amend regulations 85 and 87 to clearly separate the functions by providing that the delegate initiating a termination notice cannot be the delegate who terminates the members’ service. The powers of delegation are contained in regulation 119 of the Principal Regulations.
A further amendment to the Principal Regulations aligns regulation 85 with regulation 87 by providing that a ground of termination for an officer occurs when a parent or guardian requests the termination of the officer where that officer is under 18 years of age.
At present, subregulation 113(2) provides that a chaplain must not be appointed as a member of a court martial, a court or a board of inquiry. Those bodies have been replaced by recent amendments to Defence legislation. As a result, the Regulations also update the judicial and inquiry offices to which chaplains must not be appointed.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on 1 October 2007.
The Military Justice Implementation Team, the Defence Personnel Executive in the Department of Defence and the Office of Best Practice Regulation have been consulted in the making of this instrument.
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Overview
The Defence (Personnel) Amendment Regulations 2007, issued under the authority of the Minister for Veterans’ Affairs, were enacted to address a specific gap in the Defence Act 1903 concerning the organisational separation of roles in the administrative processes for the termination of a member's service within the Australian Defence Force (ADF). This legislative instrument follows the recommendation from the Joint Standing Committee on Foreign Affairs, Defence and Trade in its 1999 Report into Military Justice, which highlighted the need for distinct roles between the officer initiating and the officer making the decision in termination processes to ensure fairness and objectivity. The Regulations aim to implement this separation by explicitly prohibiting the delegate who initiates a termination notice from also being the delegate who terminates the member's service, thereby enhancing procedural integrity within the ADF.
Furthermore, the Regulations update and align certain provisions to reflect legislative changes that have replaced former judicial and inquiry bodies, ensuring that the prohibition on chaplains being appointed to these roles remains current and relevant. The Defence (Personnel) Amendment Regulations 2007 are a legislative instrument under the Legislative Instruments Act 2003, and they came into effect on 1 October 2007. The formulation of these Regulations involved consultation with relevant bodies, including the Military Justice Implementation Team, the Defence Personnel Executive in the Department of Defence, and the Office of Best Practice Regulation.
Scope and Application
The Defence (Personnel) Amendment Regulations 2007 (No. 3) applies to members of the Australian Defence Force (ADF), including personnel in the Army, Navy, and Air Force, as well as officers under 18 years of age whose service termination is requested by a parent or guardian. These Regulations were made under the Defence Act 1903 and aim to implement changes that ensure organisational separation between the initiating officer and the decision maker for administrative actions involving the termination of a member’s service, in line with the recommendations of the Joint Standing Committee on Foreign Affairs, Defence and Trade. This amendment is crucial for maintaining the integrity of the military justice system by preventing conflicts of interest. The Regulations also update provisions concerning the appointment of chaplains to judicial and inquiry bodies, reflecting recent legislative changes. The Regulations have a national reach and apply across all states and territories of Australia, given that they are made under Commonwealth legislation. There are no specific exclusions or thresholds mentioned in the text; however, the application of the Regulations may be extended or restricted through subordinate instruments.
Key Provisions
The main operative sections of the Defence (Personnel) Amendment Regulations 2007 (No. 3) address the separation of functions for the initiation and decision-making processes in the termination of a member's service within the Australian Defence Force (ADF). Regulation 85 is amended to ensure that the delegate initiating a termination notice cannot be the same delegate who terminates the member's service, thus implementing a clear organisational separation between these roles. Regulation 87 is similarly updated to reflect this separation, ensuring that the same delegate cannot perform both functions. Regulation 119, concerning the powers of delegation, supports these amendments by providing the framework within which these roles are exercised. Additionally, regulation 85 is aligned with regulation 87 by stipulating that a ground for termination for an officer includes a request from a parent or guardian when the officer is under 18 years of age.
The obligations imposed by these Regulations on the parties or entities they govern include ensuring that any administrative actions related to the termination of a member's service strictly adhere to the delineated roles. This means that the delegate who initiates a termination notice must not be the same person who makes the decision to terminate the service. Furthermore, the Regulations require that any requests for termination by parents or guardians of officers under 18 be processed in accordance with the new provisions. These obligations aim to enhance transparency and fairness in the administrative processes concerning the termination of service in the ADF.
The Regulations do not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches of the provisions. However, the importance of adhering to these amendments implies that failure to comply with the prescribed separation of functions could result in procedural irregularities or potential legal challenges regarding the fairness and legality of the termination process. While the Regulations do not state maximum penalties, breaches could lead to internal Defence Force reviews, disciplinary actions, or legal disputes, depending on the context and severity of the non-compliance.