EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 151
Issued by the authority of the Minister for Defence
Military Justice (Interim Measures) Act (No.1) 2009
Military Justice (Interim Measures)(Remuneration and Entitlements) Amendment Regulations 2011 (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 Executive Council approved the Military Justice (Interim Measures)(Remuneration and Entitlements) Regulations 2011 which resolved some discrepancies in the remuneration arrangements of certain statutory office holders following the High Court of Australia decision of Lane v Morrison [2009] HCA 29 and also because of the uncertainty surrounding the validity of these positions’ terms and conditions because of the interpretation of certain provisions of the Act. These Regulations applied relevant salary adjustments to these positions. However, the amounts did not reflect the correct percentage salary increase as determined by the Remuneration Review Tribunal.
The Military Justice (Interim Measures)(Remuneration and Entitlements) Amendment Regulations 2011 (No. 1) (the Regulations) include the correct amounts, with a retrospective operation. However, the retrospective operation of the Regulations does not offend ‘Principle B’ of the Senate Standing Committee on Regulations and Ordinances Principles that ‘retrospectivity should not disadvantage any one except the Commonwealth’. The Regulations have a beneficial retrospective application to the office holders.
The Act does not specify any conditions that need to be met before the power to make the Regulations 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 (OPBR reference 12430, 11 March 2011), as there were no regulatory impacts on business or the not-for-profit sector made by the Regulations.
Only internal Defence consultation was necessary because the amendments did not have any potential implications relating to other government departments or agencies or non-government organisations.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced with effect from 1 October 2009. This is the effective date of Remuneration Review Tribunal Determination 2009/17 which would have applied to the positions but for the Lane v Morrison decision and the operation of the Act.
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Overview
The Military Justice (Interim Measures)(Remuneration and Entitlements) Amendment Regulations 2011 (No. 1) were enacted to address discrepancies in the remuneration of certain statutory office holders within the military justice system. These discrepancies arose following the High Court decision in Lane v Morrison [2009] HCA 29 and due to the uncertainty surrounding the validity of these positions’ terms and conditions because of the interpretation of provisions in the Military Justice (Interim Measures) Act (No.1) 2009. The enacting body was the Executive Council, which approved these regulations on 16 June 2011, ensuring that the salary adjustments reflected the correct percentage increase as determined by the Remuneration Review Tribunal. The policy objective was to correct the remuneration and entitlements without disadvantaging any party, in line with the Senate Standing Committee on Regulations and Ordinances Principles. The retrospective application of the regulations was deemed beneficial and did not require a Regulation Impact Statement.
Scope and Application
The Military Justice (Interim Measures)(Remuneration and Entitlements) Amendment Regulations 2011 (No. 1) applies to certain statutory office holders within the Australian Defence Force who were affected by the discrepancies in remuneration arrangements following the High Court decision in Lane v Morrison [2009] HCA 29. These Regulations amend the Military Justice (Interim Measures)(Remuneration and Entitlements) Regulations 2011 to correct the salary adjustments and entitlements for these office holders, ensuring compliance with the determinations of the Remuneration Review Tribunal. The Regulations are designed to address the uncertainty regarding the validity of the terms and conditions of these positions, and they have a retrospective operation that does not disadvantage any party except the Commonwealth, in line with the principles of the Senate Standing Committee on Regulations and Ordinances.
The scope of the Regulations is limited to the internal Defence Force, and they do not impose any regulatory impacts on the business or not-for-profit sectors. The Regulations were made under the authority of the Military Justice (Interim Measures) Act (No.1) 2009 and commenced on 1 October 2009, the same date as the effective date of the Remuneration Review Tribunal Determination 2009/17. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003, and their preparation involved consultation with the Office of Best Practice Regulation, which determined that a Regulation Impact Statement was not required.
Key Provisions
The Military Justice (Interim Measures)(Remuneration and Entitlements) Amendment Regulations 2011 (No. 1) amend the remuneration and entitlements of certain statutory office holders in the context of military justice. These Regulations specifically address the salary adjustments for roles impacted by the High Court decision in Lane v Morrison [2009] HCA 29 and subsequent uncertainty in the validity of these positions’ terms and conditions. The core provision (Regulation 3) adjusts the salary levels to reflect the correct percentage increases as determined by the Remuneration Review Tribunal, ensuring that the remuneration is in line with the Tribunal's determinations. This amendment is applied retrospectively, effective from 1 October 2009, which aligns with the effective date of the Tribunal's determination that would have been applicable had it not been for the Lane v Morrison decision and the subsequent legislative measures (Regulation 4).
These Regulations impose clear obligations on the entities and individuals they govern, primarily focusing on the accurate adjustment and payment of remuneration to specified office holders. By setting the correct salary figures, the Regulations ensure compliance with the Remuneration Review Tribunal’s determinations, thereby maintaining consistency and fairness in the remuneration of military justice officials. The retrospective nature of these adjustments means that any past discrepancies are rectified, providing affected office holders with the correct remuneration retroactively. This requirement extends to Defence to ensure that all payments made to these positions from the effective date of the Regulations are adjusted accordingly.
There are no explicit offences, penalties, or consequences for breach detailed within the Regulations themselves. However, failure to comply with these remuneration adjustments could potentially lead to legal challenges or disputes regarding the accuracy of payments made to the affected office holders. Such non-compliance might also result in administrative reviews or audits by Defence to ensure adherence to the stipulated remuneration rates. While the Regulations do not specify penalties, the underlying legislative framework, including the Military Justice (Interim Measures) Act (No.1) 2009, would govern any subsequent actions or enforcement mechanisms in the event of non-compliance.