Naval Defence Amendment Act 1988

Overview

The Naval Defence Amendment Act 1988 was enacted to address the need for updating the Naval Defence Act 1910 to accommodate the transfer of functions from the Commonwealth to Commonwealth authorities. This amendment was introduced by the Parliament of Australia, which consists of the Queen, the Senate, and the House of Representatives. The primary objective of this legislation is to facilitate the transfer of personnel and functions related to naval defence from the Commonwealth to Commonwealth authorities, ensuring a smooth transition and continuity of service. The Act provides the necessary legal framework to declare the transfer of specified persons or classes of persons to the employment of a Commonwealth authority, while also allowing for the determination of special terms or conditions of employment, excluding those related to superannuation.

Scope and Application

The Naval Defence Amendment Act 1988 amends the Naval Defence Act 1910 to facilitate the transfer of certain functions and personnel from the Department of Defence to a Commonwealth authority. This Act applies to persons who are currently employed under section 42 of the Principal Act and are to be transferred to a Commonwealth authority, which is defined as a company or other body corporate in which the Commonwealth has a controlling interest. This includes any company or body corporate incorporated under a law of the Commonwealth or a State or Territory. The Act extends to the entire Commonwealth of Australia and is applicable to any industrial awards as defined in the Public Service Act 1922. The Act does not specify any exclusions, exemptions, or thresholds for its application. The scope of the Act may be extended or restricted through subordinate instruments, such as regulations or orders, which could provide further details on the implementation of the transfer of functions and personnel.

Key Provisions

The Naval Defence Amendment Act 1988 (section 4) introduces specific provisions to the Naval Defence Act 1910. The most significant addition is Section 42d, which addresses the transfer of personnel when functions previously performed by individuals are to be undertaken by a Commonwealth authority. Under this new provision (section 42d(1)), the Minister must provide written certification that a function will be carried out by a Commonwealth authority. Subsequently, an authorized person can publish a declaration in the Gazette identifying specific persons or classes of persons who will be transferred to the Commonwealth authority's employment. Once the date specified in the declaration arrives, the individuals or classes specified will cease their employment under the previous section and commence employment with the Commonwealth authority (section 42d(2)). Additionally, the Commonwealth authority is permitted to establish special employment terms and conditions to facilitate this transfer, except those related to superannuation (section 42d(3)). The Act imposes certain obligations on the Minister and the authorized person. The Minister must issue a written certification if a function is to be transferred to a Commonwealth authority (section 42d(1)). The authorized person, upon receiving this certification, must publish a declaration in the Gazette specifying the individuals or classes of persons to be transferred to the Commonwealth authority (section 42d(1)). Moreover, the Commonwealth authority is tasked with determining special employment terms and conditions, excluding those pertaining to superannuation, to facilitate the transition of personnel (section 42d(3)). Breaches of the provisions outlined in the Act may have legal consequences. While the Act does not explicitly state the penalties for non-compliance, it is reasonable to infer that any failure to adhere to the prescribed procedures for transferring personnel could result in legal action. For instance, if the Minister fails to provide the required written certification or if the authorized person does not publish the declaration as mandated, these actions could potentially lead to judicial review or other legal remedies. The exact penalties would depend on the specific circumstances and could include fines or other sanctions as determined by a court.