EXPLANATORY STATEMENT
Select Legislative Instrument No. 2, 2014
Issued by the authority of the Minister for Defence
Military Justice (Interim Measures) Act (No. 1) 2009
Military Justice (Interim Measures) (Remuneration and Entitlements) Regulations 2011
Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment Regulation 2014 (No. 1)
Schedule 4, Item 2 of the Military Justice (Interim Measures) Act (No. 1) 2009 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
On 16 June 2011, the Governor-General in Council approved the Military Justice (Interim Measures) (Remuneration and Entitlements) Regulations 2011 (the Principal Regulations) which prescribed relevant salary adjustments made by the
Remuneration Review Tribunal, to, among others, certain Defence statutory office holders, that is the Chief Judge Advocate and a judge advocate appointed under the Defence Force Discipline Act 1982.
On 18 June 2013 (Determination 2013/12, with effect from 1 July 2013), the Remuneration Review Tribunal increased the salaries by 2.4 percent. The Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment Regulation 2014 No. 1) passes on this adjustment to the Chief Judge Advocate and judge advocate consistent with the combined operation of the Military Justice (Interim Measures) Act (No. 1) 2009 and the Principal Regulations.
The Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment Regulation 2014 (No. 1) amends the Principal Regulations to include the adjusted amounts, with a retrospective operation. This retrospective operation does not offend ‘Principle B’ of the Senate Standing Committee on Regulations and Ordinances Principles that ‘retrospectivity should not disadvantage anyone except the Commonwealth’. The Regulation has a beneficial retrospective application to the office holders.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation is expressed to commence on 1 July 2013 which is the effective date of the relevant Remuneration Review Tribunal Determination.
The Act does not specify any conditions that need to be met before the power to make the Regulation may be exercised.
After consulting the Office of Best Practice Regulation in respect of the need for, and preparation of, a Regulation Impact Statement, it advised that a Regulation Impact Statement was not required (OBPR reference 15101, 11 June 2013), as there were no regulatory impacts on business or the not-for-profit sector made by the Regulation.
Only internal Defence consultation was undertaken because the amendments do not have any potential implications relating to other government departments or agencies or non-government organisations. The amendments provide for the remuneration and allowance arrangements for the military-specific positions of Chief Judge Advocate and Judge Advocate and as such, the exemption from consultation contained in section 18 of the Legislative Instruments Act 2003 applies, because the Regulation relates to ‘the service of members of the ADF’.
Statement of Compatibility with Human Rights
This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Regulation does not engage any applicable rights or freedoms, other than to provide an additional financial benefit to the affected persons to assist them to exercise their right to the enjoyment of just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights). Accordingly, in the Department of Defence’s assessment, this Regulation is compatible with human rights.
Overview
The Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment Regulation 2014 (No. 1) was enacted to amend the Military Justice (Interim Measures) (Remuneration and Entitlements) Regulations 2011, addressing the need to adjust the salaries of the Chief Judge Advocate and judge advocate in line with a Remuneration Review Tribunal determination made on 18 June 2013. This regulation was introduced by the Minister for Defence to ensure that the remuneration of these military-specific positions is updated in accordance with the tribunal's decision, which increased salaries by 2.4 percent. The regulation was issued under the authority of the Military Justice (Interim Measures) Act (No. 1) 2009, and its purpose is to ensure that the salary adjustments are implemented effectively, with the regulation having retrospective effect from 1 July 2013. This amendment ensures that there are no adverse effects on the individuals concerned, aligning with the principle that retrospectivity should not disadvantage anyone except the Commonwealth. The regulation was prepared in accordance with the Legislative Instruments Act 2003, and no Regulation Impact Statement was required as it does not affect business or the not-for-profit sector.
Scope and Application
The Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment Regulation 2014 (No. 1) applies specifically to the remuneration and entitlements of certain Defence statutory office holders, namely the Chief Judge Advocate and a judge advocate appointed under the Defence Force Discipline Act 1982. The Regulation amends the Military Justice (Interim Measures) (Remuneration and Entitlements) Regulations 2011 to reflect a 2.4 percent salary adjustment determined by the Remuneration Review Tribunal effective from 1 July 2013. This amendment ensures that the remuneration of the Chief Judge Advocate and the judge advocate is aligned with the adjustments made by the Tribunal. The Regulation operates on a retrospective basis, backdated to the effective date of the Tribunal's determination, and is designed to provide a beneficial adjustment without disadvantaging the office holders, consistent with the Senate Standing Committee on Regulations and Ordinances Principles. The Regulation, which is a legislative instrument under the Legislative Instruments Act 2003, commenced on 1 July 2013 and does not require any specific conditions to be met before its exercise. Given its specific application to Defence personnel, the Regulation is exempt from the general requirement for consultation with other government departments or non-government organisations, and a Regulation Impact Statement was deemed unnecessary as there were no regulatory impacts on the business or not-for-profit sectors.
Key Provisions
The Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment Regulation 2014 (No. 1) (the Amendment Regulation) primarily seeks to amend the Military Justice (Interim Measures) (Remuneration and Entitlements) Regulations 2011 (the Principal Regulations). This adjustment is made to align with the salary increases determined by the Remuneration Review Tribunal, effective from 1 July 2013. Section 4 of the Amendment Regulation modifies the Principal Regulations to incorporate the salary adjustments for the Chief Judge Advocate and judge advocate, ensuring consistency with the Military Justice (Interim Measures) Act (No. 1) 2009 and the Principal Regulations. These amendments apply retrospectively, providing that the salary adjustments are effective from the date of the Tribunal's determination, 1 July 2013, without causing any disadvantage to the affected parties, as per Principle B of the Senate Standing Committee on Regulations and Ordinances.
The Amendment Regulation imposes specific obligations on the parties governed by the Act, primarily focusing on ensuring the correct application of salary adjustments to the Chief Judge Advocate and judge advocate. By incorporating the adjustments determined by the Remuneration Review Tribunal, the Amendment Regulation mandates that these adjustments are applied retroactively. This is achieved by aligning the Principal Regulations with the updated salary rates, thus ensuring that the remuneration and entitlements of the specified Defence statutory office holders are accurately reflected. The regulation does not impose any new obligations beyond those necessary to effect the salary adjustments.
In terms of potential breaches and consequences, the Amendment Regulation does not explicitly outline specific offences or penalties for non-compliance. However, the regulation's purpose is to ensure that the remuneration and entitlements of the Chief Judge Advocate and judge advocate are correctly applied in accordance with the Tribunal's determination. Any failure to implement these adjustments could result in discrepancies in the payment of salaries, which might have legal or administrative repercussions. The regulation’s retrospective application means that any non-compliance with the specified salary adjustments could lead to financial discrepancies and potential legal challenges regarding the proper remuneration of the affected office holders.
The compatibility of the Amendment Regulation with human rights is affirmed in the Statement of Compatibility with Human Rights, which asserts that the regulation aligns with the human rights and freedoms recognised or declared in international instruments. Specifically, the regulation is deemed compatible because it does not engage any applicable rights or freedoms beyond providing additional financial benefits to assist the affected persons in exercising their right to the enjoyment of just and favourable conditions of work, as outlined in article 7 of the International Covenant on Economic, Social and Cultural Rights. Therefore, the Department of Defence has determined that this regulation is compatible with human rights, ensuring that the salary adjustments do not adversely impact the human rights of the Chief Judge Advocate and judge advocate.