EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO. 227
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE
MILITARY FINANCIAL REGULATIONS (AMENDMENT)
The Military Financial Regulation (“the Regulations”), made under the Defence Act 1903, prescribe financial conditions of service for the Army.
Members of the Defence Force recieve free medical and dental treatment to maintain the level of health and fitness required for Defence Force service. However, it is the practice to recover the costs of treatment where the necessity for the treatment arose in circumstances which give a member an enforceable claim against another person (eg, a motor vehicle accident).
Regulation 262 of the Regulations enables a determination to be made requiring a member who has an enforceable claim against another person to repay the cost of treatment. The amount of the determination is then included in the member’s claim.
Formerly there was no provision to enable the revocation of such a determination where, for example, a member did not succeed in his claim or was not able to pursue it. In these circumstances, the only legal means of cancelling a member’s obligation to pay an amount determined was for the Commonwealth to waive recovery of the amount under section 70C of the Audit Act 1901.
This Statutory Rule amends regulation 262 of the Regulations to provide a power to revoke or vary determinations made under that regulation. This is achieved by providing that a determination under that regulation be made “by instrument”. Such a provision attracts the operation of sub-section 33(3) of the Acts Interpretation Act 1901 to confer a power to repeal, rescind, revoke, amend or vary that instrument.
The amendment has effect from the date of gazettal of the Statutory Rule.
Overview
The Military Financial Regulations (Amendment) Statutory Rules 1984 No. 227, issued by the authority of the Minister for Defence, were enacted to address a gap in the existing Military Financial Regulations made under the Defence Act 1903. Specifically, the original regulation 262 enabled the recovery of treatment costs from Defence Force members who had enforceable claims against another person but did not provide a mechanism for revoking such recovery orders if the circumstances changed, such as the member failing to successfully claim compensation or being unable to pursue the claim. The problem was that the only recourse to cancel the member’s obligation to repay the costs was through the Commonwealth waiving recovery under section 70C of the Audit Act 1901. The policy objective of this amendment was to provide a more effective and flexible mechanism for managing such financial obligations by allowing for the revocation or variation of determinations made under regulation 262.
Scope and Application
The Military Financial Regulations (Amendment) Statutory Rule 1984 No. 227, issued under the authority of the Minister for Defence, amends the Military Financial Regulations to provide a mechanism for the revocation or variation of determinations requiring members of the Defence Force to repay the costs of their medical or dental treatment where they have an enforceable claim against another party. This applies to members of the Defence Force who receive treatment and subsequently have an enforceable claim against another party for the same treatment costs. The amendment provides for the power to revoke or vary such determinations, which were previously only able to be cancelled if the Commonwealth chose to waive recovery of the amount under the Audit Act 1901. This amendment applies to all members of the Defence Force and their treatment costs in circumstances where they have an enforceable claim against another party, regardless of where the member is located or where the treatment was provided. The amendment is effective from the date of gazettal of the Statutory Rule and the power to revoke or vary determinations is exercised through an instrument made under the authority of the Minister for Defence.
Key Provisions
The key provision of this Statutory Rule is the amendment of regulation 262 of the Military Financial Regulations (MFR) (section 2). Regulation 262 currently enables a determination to be made requiring a Defence Force member with an enforceable claim against another person to repay the cost of medical or dental treatment. The amendment allows for these determinations to be revoked or varied by instrument, which means they can be repealed, rescinded, revoked, amended or varied, as provided by subsection 33(3) of the Acts Interpretation Act 1901 (section 2). This is intended to address the current lack of a formal mechanism for cancelling a member’s obligation to pay an amount determined under the regulation.
Under the amended regulation, the Minister for Defence, or another person authorised by the Minister, can revoke or vary a determination made under regulation 262 if certain conditions are met. These conditions might include, for example, a member not succeeding in their claim against another person, or being unable to pursue their claim. The ability to revoke or vary a determination provides greater flexibility and ensures that the financial obligations of Defence Force members are fair and just.
The Statutory Rule imposes certain obligations on the Minister for Defence and other authorised persons to ensure that determinations under regulation 262 are made, revoked, or varied in accordance with the Regulations and any relevant laws. This includes ensuring that the process is fair, transparent, and consistent with the member’s rights and obligations under the Defence Act 1903.
There are no specific offences, penalties, or civil/criminal consequences outlined in the Statutory Rule for breach of the amended regulation 262. However, any failure to comply with the requirements of the MFR, including the amended regulation, could potentially result in disciplinary action against Defence Force members, or other legal consequences under applicable laws. The maximum penalties for offences under the Defence Act 1903 or other relevant legislation would apply in such cases.
This Statutory Rule came into effect on the date of its gazettal, which is the date it was published in the Commonwealth of Australia Gazette (section 3). The amendment to regulation 262 of the MFR is intended to provide a more efficient and effective means of managing the financial obligations of Defence Force members in relation to medical and dental treatment costs.