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2008 - 2009 - 2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
House of Representatives
DEFENCE LEGISLATION AMENDMENT BILL (No. 1) 2010
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Parliamentary Secretary for Defence Support
the Hon Dr Mike Kelly AM MP)
DEFENCE LEGISLATION AMENDMENT BILL (No. 1) 2010
GENERAL OUTLINE
The proposed Bill will address five separate measures by amending the:
1. The Defence Act 1903:
a) to establish the Defence Honours and Awards Appeals Tribunal by
legislation by inserting a new Part VIIIC in the Defence Act 1903 to
establish the Defence Honours and Awards Appeals Tribunal. The amendment
sets out the following:
. functions of the new Tribunal;
. what decisions are reviewable by the new Tribunal;
. who may apply for review;
. referral of general Defence honours and awards issues for inquiry and
advice;
. general provisions relating to the operation of the new Tribunal;
. constitution of the new Tribunal and appointment of members; and
. transitional provisions for the continuation of business of the
current Tribunal and the automatic appointment of current members to
the new Tribunal.
b) to ensure that there is procedural fairness in the termination and
discharge process where a Defence member has tested positive for a
prohibited substance.
c) to make it absolutely clear that section 58B determinations made under
the Defence Act are subject to tabling and disallowance and able to operate
with certainty and transparency.
2. The Defence (Home Ownership Assistance) Scheme Act 2008 to ensure
that it covers all Reserve members, regardless of the way they became a
Reserve member.
It was the original policy intent that section 5 of the Act should cover
all members of the Reserves, including those engaged by transfer. The
Scheme has been administered consistent with this intent.
3) The Defence Force Discipline Act 1982 to enable the appointment of
Chief Petty Officers and Flight Sergeants as discipline officers, to
clarify the jurisdiction of discipline officers and to align the
punishments available to be imposed in respect of certain ranks.
Financial Impact statement
The amendments in the Bill will have no additional impact on Commonwealth
expenditure or revenue.
NOTES ON CLAUSES
Clause 1: Short title
1. This clause provides for the short title of the Act to be cited as the
Defence Legislation Amendment Act (No. 1) 2010.
Clause 2: Commencement
2. This clause provides for the commencement provision for the Act. The
commencement dates for specific provisions are included in the
commencement information table.
Item 1 of the commencement table
3. This item provides that sections 1 to 3 (and anything in the Act not
elsewhere covered by the table) commence on the day on which the Act
receives the Royal Assent.
Item 2 of the commencement table
4. This item provides that Schedule 1 commences on a single day to be fixed
by Proclamation. However, if any of the provisions do not commence
within the period of 6 months beginning on the day this Act receives the
Royal Assent, they commence on the day after the end of that period.
Item 3 of the commencement table
2. This item provides that Schedule 2 commences on the day this Act
receives Royal Assent.
3. This item provides that Schedule 3 commences on the 28th day after the
Act receives Royal Assent.
4. This item provides that Schedule 4 commences on the 28th day after the
Act receives Royal Assent.
5. This item provides that Schedule 5 commences on the day the Act receives
Royal Assent.
SCHEDULE 1 - Defence Honours and Awards Appeals Tribunal
Defence Act 1903
Schedule 1 inserts a new Part VIIIC in the Defence Act 1903 to
establish the Defence Honours and Awards Appeals Tribunal by
legislation.
In 2007 the Australian Government undertook to establish an independent
tribunal to consider longstanding Defence honours and awards issues and
identified a number of priority issues to be considered by the Tribunal.
In July 2008 the Defence Honours and Awards Tribunal (the current Tribunal)
was established administratively so that inquiries identified by Government
could commence. As an administrative body the current Tribunal can only
inquire into and make recommendations relating to issues referred to it by
Government and the Government has undertaken to be bound by the current
Tribunal's decisions. The current Tribunal, however, has no authority to
make separate decisions or to independently review Defence decisions
concerning eligibility for Defence honours and awards.
Prior to the establishment of the current Tribunal in July 2008, there was
no avenue of appeal open to Australian Defence Force members, ex-serving
members, next of kin or others who had applied for medals and had their
application declined. There was also no permanent body that could
independently consider broader recognition issues relating to Defence
service.
The establishment of the new Tribunal as a statutory body under the Defence
Act 1903 will strengthen the Tribunal's independence, make the Defence
honours and awards decision making process more transparent and formalise
the Government's 2007 election undertaking.
PART VIIIC - DEFENCE HONOURS AND AWARDS APPEALS TRIBUNAL
DIVISION 1 - PRELIMINARY
Item 110T of Schedule 1 - Definitions
This item provides the definitions relating to the Defence Honours and
Awards Appeals Tribunal. A list of the Defence Honours and Awards which
can be reviewed by the Defence Honours and Awards Appeals Tribunal is at
Attachment A of the this explanatory material.
DIVISION 2 - ESTABLISHMENT AND FUNCTIONS OF DEFENCE HONOURS AND AWARDS
APPEALS TRIBUNAL
Item 110U of Schedule 1 - Establishment of Tribunal
This item introduces the establishment of the Defence Honours and Awards
Appeals Tribunal by this section with privileges and immunities of the
Crown.
Item 110UA of Schedule 1 - Functions of the Tribunal
This item provides that the functions of the Tribunal are to review
reviewable decisions. A reviewable decision is decision to refuse to
recommend a person for a Defence honour, a Defence award or a foreign
award, where the decision was made:
. by or on behalf of the Minister for Defence, or a former Minister for
Defence;
. by a person within the Department, or a former Department administered
by a former Defence Minister; or
. by a person within the Australian Defence Force.
The Tribunal will not be reviewing Australian civilian awards.
The Tribunal will also inquire into matters concerning Defence honours and
awards for eligible service as directed by Government.
The establishment of the Tribunal will provide applicants with a right of
appeal in relation to Defence honours and awards that was not previously
available to them.
Item 110UB of Schedule 1 - Tribunal and Tribunal members not subject to
direction
This item provides that neither the Tribunal nor a Tribunal member is
subject to direction from anyone in relation to the performance or exercise
of their functions or powers, except as provided for in this Part,
procedural rules, or another law of the Commonwealth.
DIVISION 3 - REVIEW OF DECISIONS BY THE TRIBUNAL
Item 110V of Schedule 1 - What decisions are reviewable?
This item defines a reviewable decision to mean a decision made by the
relevant decision-maker to refuse to recommend a person or group of persons
in relation to a Defence honour, Defence award or a foreign award. A
decision is not reviewable if it was made before 3 September 1939 or
relates to service rendered prior to 3 September 1939.
Item 110VA of Schedule 1 - Who can apply for review?
This item provides that a person or person (s) who made the original
application, to which a reviewable decision was made, can apply for review.
This may include an Australian Defence Force member, an ex-serving member,
next of kin or other interested parties providing they made the original
application.
Item 110VB of Schedule 1 - Review of decisions by the Tribunal
This item provides that where an application is properly made to the
Tribunal for review of a reviewable decision relating to a Defence honour,
award and/or foreign award, the tribunal must review the decision.
In relation to a decision relating to a Defence honour, the Tribunal must
review the decision and may make any recommendations to the Minister that
the Tribunal considers appropriate.
In relation to a decision regarding a Defence award or a foreign award, the
Tribunal must review the decision and affirm or set aside the decision and
substitute a new decision or send the matter back for reconsideration in
accordance with any directions of the Tribunal. If the Tribunal
substitutes a new decision, this means a decision to recommend a person or
group of persons for a defence award or foreign award.
In considering a reviewable decision the Tribunal is bound by eligibility
criteria that governed the making of the reviewable decision.
Item 110VC of Schedule 1 - Power to dismiss review applications
This item provides that the Chair of the Tribunal may decide, in writing at
any time, to dismiss an application for review when: there is another
Commonwealth review process; the matter has already been adequately
reviewed; or when the application is considered to be frivolous or
vexatious. A dismissal of an application under this item is not a
legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
DIVISION 4 - INQUIRIES BY THE TRIBUNAL
Item 110W of Schedule 1 - Minister may direct Tribunal to hold inquiry
This item provides that the Minister may give the Tribunal a written
direction to hold an inquiry into a specified matter concerning Defence
honours and awards for eligible service. A direction under this item is
not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
DIVISION 5 - GENERAL PROVISIONS RELATING TO OPERATION OF THE TRIBUNAL
Item 110X of Schedule 1 - Role of the Chair
This item provides the role of the Chair of the Tribunal to be the
executive officer of the Tribunal and is responsible for the overall
function of the Tribunal. The Chair may delegate his or her functions and
powers to another Tribunal member.
Item 110XA of Schedule 1 - Constitution of Tribunal for Tribunal
proceedings
This item provides that:
. for a Tribunal proceeding there is to be one or more Tribunal members
determined by the Chair;
. for Tribunal inquiries there must be 3 or more Tribunal members;
. the Chair must comply with any procedural rules relating to the
constitution of the Tribunal for Tribunal proceedings;
. a majority decision prevails and where there is no majority the decision
of the presiding member prevails; and
a determination or direction by the Chair must be in writing and the
direction or determination by the Chair is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 110XB of Schedule 1 - What happens if a Tribunal member stops being
available
This item provides for the Chair to direct in writing, the course of action
in the event that a Tribunal member becomes unavailable, for any reason,
prior to the completion of a proceeding. The Chair must either direct that
the Tribunal proceedings be started afresh or be completed. A direction
under this item is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Item 110XC of Schedule 1 - Summoning persons to give evidence or produce
documents
This item enables the Tribunal to summons a person to attend before the
Tribunal to give evidence or produce documents for the purpose of a
Tribunal proceeding. The provision also provides that failure by a person
to comply with a summons is an offence unless the person has a reasonable
excuse.
Without limiting this provision, sub-item 110XC (4) provides that it is a
reasonable excuse for a person to refuse or fail to give evidence or
produce a document if giving the evidence, or producing the document, would
tend to incriminate the person. A person would also have a reasonable
excuse if giving the evidence, or producing the document, would tend to
render the person liable to a civil penalty or if the evidence or document
was subject to legal professional privilege.
Item 110XD of Schedule 1 - Protection of confidential or sensitive evidence
or submissions etc.
This item enables the Tribunal to make an order prohibiting or restricting
the public release of information for reason of confidentiality or
sensitivity. This includes submissions and documents which are received in-
confidence, names and addresses, decisions or parts of reports or
information that may be discovered during an inquiry that could be
upsetting or emotionally sensitive to the applicant, next of kin, or those
involved in injury. For example: this might occur when an inquiry finds
evidence that a person is not eligible for a specific honour or award due
to actions such as desertion, cowardice, treason or other conduct which
could be potentially upsetting for the next of kin. It is an offence to
contravene an order of the Tribunal under this item.
Item 110XE of Schedule 1 - Formal requirements relating to decisions etc.
of the Tribunal
This item provides that:
. the reviews of the Tribunal, subject to any orders made in Item 110XD,
must: be in writing; include a statement of reasons; and be provided to
the applicant. The Tribunal may also give a copy to any other person the
Tribunal considers appropriate.
. the inquiry reports of the Tribunal, subject to any orders made in Item
110XD, must be in writing, and published on the Tribunal website, or by
any other means the Tribunal considers appropriate.
A decision under this item is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.
Item 110XF of Schedule 1 - Protection of Tribunal members and other persons
This item provides that:
. a Tribunal member has the same protection and immunity as a Justice of
the High Court
. a person representing another person before the Tribunal has the same
protection and immunity as a barrister appearing for a party in the High
Court; and
. a person summoned to attend or appear before the Tribunal has the same
protection as a witness before the High Court.
Item 110XG of Schedule 1 - Disclosure of interests by Tribunal members
This item provides that a Tribunal member must disclose any potential
conflicts of interest relating to a Tribunal proceeding. A Tribunal member
cannot continue to take part in the proceeding unless there has been
consent given by the Minister (in relation to the Chair) or the Chair (in
relation to other members). A consent given by the Minister or the Chair
is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Item 110XH of Schedule 1 - Procedural rules
This item enables the Chair to make, by way of legislative instrument,
procedural rules in relation to practice and procedure to be followed by or
in relation to the Tribunal. The procedural rules must be complied with.
DIVISION 6 - TRIBUNAL MEMBERS
Item 110Y of Schedule 1 - Constitution of Tribunal
This item provides that the Tribunal will consist of a Chair and a minimum
of six and a maximum of ten other Tribunal members.
Item 110YA of Schedule 1 - Appointment of Tribunal Members
This item enables the appointment of Tribunal members on a part-time basis
by the Minister. When appointing Tribunal members the Minister must have
regard to the desirability of reflecting a diversity of expertise,
experience, gender, and the independence of Tribunal members from those who
usually make reviewable decisions. For example the Minister might ensure
that there is a mix of Tribunal members with military experience, legal
expertise, knowledge of military history and other relevant professional
experience.
A person is not eligible for appointment as the Chair of the Tribunal if
they are, or have been at anytime, a member of the Defence Force
(Permanent/Regular or Reserves) rendering continuous full-time service.
A person is not eligible for appointment as a Tribunal member (other than
the Chair) if they are or have been at anytime within the previous 12
months been a member of the Defence Force (Permanent/Regular or Reserves)
rendering continuous full-time service.
A person is not eligible for appointment as a Tribunal member if they do
not have an appropriate level of security clearance.
Item 110YB of Schedule 1 - Period of appointment
This item provides that a Tribunal member's initial appointment cannot
exceed three years. A Tribunal member may be eligible for reappointment
cannot hold that office for more than six consecutive years. The period of
appointment is inline with the best practice outline in the Review of
Corporate Governance of Statutory Authorities and Office Holders.
Item 110YC of Schedule 1 - Acting appointments
This item allows the Minister to appoint a Tribunal member to act as the
Chair and allows the Chair to appoint a Tribunal member to act as a
Tribunal member (other that the Chair) having regard to diversity of
expertise, experience, gender and independence of those that usually make
reviewable decisions.
Item 110YD of Schedule 1 - Other employment
This item provides that a Tribunal member must not engage in any paid
employment that, in the Minister's opinion, conflicts or may conflict with
the proper performance of the member's functions.
Item 110YE of Schedule 1 - Remuneration
This section provides that remuneration of the Tribunal members is to be
determined by the Remuneration Tribunal and allowances prescribed by the
Regulations.
Item 110YF of Schedule 1 - Leave
This item allows the Minister or Chair to grant leave to members of the
Tribunal.
Item 110YG of Schedule 1 - Resignation
This item allows for a Tribunal member to resign by giving written notice
to the Minister. The date of effect of the resignation is on the day the
notice is received by the Minister or if a later date is specified, then
that date.
Item 110YH of Schedule 1 - Termination
This item enables the Minister to terminate the appointment of a Tribunal
member for reasons such as misbehaviour, incapacity, bankruptcy or failure
to comply with other provisions in this Part such as not holding a valid
security clearance.
Item 110YI of Schedule 1 - Other terms and conditions
This item provides Ministerial discretion to determine other terms and
conditions, if not already provided for under this Part, to enable the
Tribunal member to perform the functions of the Tribunal.
DIVISION 7 - MISCELLANEOUS
Item 110Z of Schedule 1- Regulations
This item enables the making of regulations in relation to application
fees, disclosure of information and proof of decisions or orders of the
tribunal.
PART 2 - TRANSITIONAL PROVISIONS
Item T2 of Schedule 1 - Definitions
This item provides definitions relating to transitional provisions from the
Defence Honours and Awards Tribunal (old Tribunal) to the Defence Honours
and Awards Appeals Tribunal (new Tribunal).
Item T3 of Schedule 1 - Competition of reviews and inquiries by new
Tribunal
This item provides that the new Tribunal will complete reviews and
inquiries of the current Tribunal, and there will be a power to make
regulations to deal with transitional issues relating to the transition
from the current Tribunal to the new Tribunal.
Item T4 of Schedule 1 - Members of the old Tribunal are automatically
appointed to the new Tribunal
This item provides for the automatic appointment of Tribunal members from
the current Tribunal to the new Tribunal. The period for which Tribunal
members will be appointed to the new Tribunal will be either 12 months or
24 months as determined by the Minister.
A Tribunal member's service with the current Tribunal will count towards
the six year cap on membership of the new Tribunal, but current Tribunal
members appointed to the new Tribunal for 24 months (rather than 12 months)
will instead have a seven year cap.
The current 'old' Tribunal consists of a Chair and ten members with
membership and size consistent with Division 6. The membership reflects a
balance of experience, expertise, gender and regional diversity with
members residing in QLD, NSW, VIC, SA and the ACT. There are three women
members and a breadth of experience in legal, military history, military
and other professions.
Item T5 of Schedule 1 - Regulations dealing with transition from old
Tribunal to new Tribunal
This provides for the Governor-General to make regulations relating to the
transition from the old Tribunal to the new Tribunal.
SCHEDULE 2 - Procedure for termination in relation to prohibited substances
Defence Act 1903
Schedule 2 amends the Defence Act 1903 to ensure there is procedural
fairness in the discharge and termination process which relate to a person
who has returned a positive test result for a prohibited substance.
Item 1 of Schedule2 - Section 93 (paragraph (c) definition of relevant
authority)
This item amends the definition of a relevant authority in relation to a
Defence civilian from commanding officer to relevant service chief by
omitting the reference to 'the commanding officer' and substituting the
words 'the relevant service chief'. This enables the relevant service
chief to delegate their powers in the Defence Act 1903 relating to testing
for prohibited substances.
Item 2 of Schedule 2 - After subsection 101(5)
This item inserts a new subsection 101(5A) after subsection 101(5) to
ensure that there are different persons making the following two decisions:
. terminate or discharge a person following a positive test result under
clause 101 of the Act; and
. issue a notice of the positive result and invite the person to provide a
statement of reasons of why they should not be terminated or discharged
under clause 100 of the Act.
Item 3 of Schedule 2 - Subsection 120A (4AA)
This item enable the Chief to Army to delegate all or any of their powers
under sections 100, 101 103 and 104 to an officer not lower than the rank
of Lieutenant-Colonel. The amendment of the delegation provisions is
necessary to bring them in line with other personnel delegations under the
Defence Personnel Regulations in relation to the termination of a Defence
member.
Item 4 of Schedule 2 - After subsection 120A(4AA)
This item inserts a new subsection 4AAA after subsection 120A(4AA) enabling
the Chief of Army to delegate his following powers:
. notifying a person of a positive substance test result; and
. inviting a person to give reasons why they should not be discharged or
terminated following a positive substance test result; and
. reducing a member to the next lower rank following a positive
substance test result; and
. notifying a person, following a positive substance test result, that
if a subsequent test also returns positive then they may be discharged
or terminated.
The Chief of Army may delegate the above powers to an Army Officer who
holds the rank of Lieutenant-Colonel or higher or an APS employee who holds
or performs the duties equivalent to an Executive Level 1 or higher.
Item 5 of Schedule 2 - Subsection 120A(4AB)
This item enable the Chief to Navy to delegate all or any of their powers
under sections 100, 101 103 and 104 to an officer not lower than the rank
of Commander. The amendment of the delegation provisions is necessary to
bring them in line with other personnel delegations under the Defence
Personnel Regulations in relation to the termination of a Defence member.
Item 6 of Schedule 2 - after subsection 120A(4AB) - Delegation
This item inserts a new subsection 4(AC) after subsection 4(AB) enabling
the Chief of the Navy to delegate his following powers for:
. notifying a person of a positive substance test result; and
. inviting a person to give reasons why they should not be discharged or
terminated following a positive substance test result; and
. reducing a member to the next lower rank following a positive
substance test result; and
. notifying a person, following a positive substance test result, that
if a subsequent test also returns positive then they may be discharged
or terminated.
The Chief of the Navy may delegate the above powers to an officer of the
Navy who holds the rank of Commander or higher or an APS employee who holds
or performs the duties equivalent to an Executive Level 1 or higher.
Item 7 of Schedule 2 - Subsection 120A(4C)
This item enable the Chief to Air Force to delegate all or any of their
powers under sections 100, 101 103 and 104 to an officer not lower than the
rank of Wing Commander. The amendment of the delegation provisions is
necessary to bring them in line with other personnel delegations under the
Defence Personnel Regulations in relation to the termination of a Defence
member.
Item 8 of Schedule 2 - After subsection 120A(4C)
This item inserts a new subsection (4D) after subsection (4C) enabling the
Chief of the Air Force to delegate his following powers for:
. notifying a person of a positive substance test result; and
. inviting a person to give reasons why they should not be discharged or
terminated following a positive substance test result; and
. reducing a member to the next lower rank following a positive
substance test result; and
. notifying a person, following a positive substance test result, that
if a subsequent test also returns positive then they may be discharged
or terminated.
The Chief of the Air Force may delegate the above powers to officer of the
Air Force who holds the rank of Wing Commander or higher or an APS employee
who holds or performs the duties equivalent to an Executive Level 1 or
higher.
Item 9 of Schedule 2 - Application of amendments
This item provides that amendments under this Schedule apply in relation to
positive test results returned after the commencement of this schedule.
SCHEDULE 3 - Determinations under section 58B of the Defence Act 1903
Defence Act 1903
Schedule 3 amends the Defence Act 1903 to ensure that section 58B
determinations are subject to tabling and disallowance.
Item 1 - Subsection 58B(1A)
This item makes it clear that determinations under section 58B can
incorporate, by reference, material from any of the following, as in force
from time to time or as in force at a particular time:
a. Other determinations under section 58B;
b. Determinations under section 58H of the Defence Act 1903;
c. Determinations under section 24 of the Public Service Act 1999.
Item 2 of Schedule 3 - Subsections 58(4) and (5)
This item provides that a determination under section 58B is to be subject
to the tabling and disallowance regime of section 46B of the Acts
Interpretation Act 1901, except that the requirements in section 46B that
instruments be available for purchase will be replaced by requirements that
section 58B determinations be made available on a website.
Item 3 and 4 of Schedule 3- Subsection 58B(8) and Subsection 58C
This item is repealed to take account of the new provision in this Schedule
Part 2 of Schedule 3 - Application of amendments
This transitional provision ensures that the additional requirements
imposed on publication of new determinations do not extend retrospectively
to those determinations already made under section 58B of the Defence Act.
SCHEDULE 4 - Amendment to the Defence Home Ownership Assistance Scheme Act
2008
Defence Home Ownership Assistance Scheme Act 2008
Schedule 4 amends the Defence Home Ownership Assistance Scheme Act 2008 to
ensure that it covers all members of the Reserves, regardless of the way
they became a Reserve member.
Item 1 of Schedule 4 - Subsection 5 (1)
This item amends subsection 5(1) by omitting the term 'appointment' and
replacing it with the term 'appointment or transfer'. This recognises that
when a member of the Permanent Australian Defence Force ceases to be a
permanent member and is then transferred to the Reserves, they are regarded
as a member of the Reserves for the purposes of the Act.
Item 2 of Schedule 4 - Application
This item makes provision for the application of the amendment to a
decision to give a subsidy certificate made on or after the date of
commencement, and to the payment of subsidy as a result of a subsidy
certificate issued on or after the date of commencement. This ensures that
a decision made before the commencement date remains valid and does not
need to be revisited for the duration of the entitlement period to which
the decision relates.
SCHEDULE 5 - Discipline Officers
Defence Force Discipline Act 1982
Schedule 5 amends the Defence Force Discipline Act 1982 (DFDA) to enable
the appointment of Chief Petty Officers and Flight Sergeants as
discipline officers, to clarify the jurisdiction of discipline officers
and to align the punishments available to be imposed in respect of
certain ranks.
The current Discipline Officer scheme (DO scheme) allows certain Australian
Defence Force (ADF) unit personnel to enforce discipline for minor
disciplinary infractions without having to resort to summary authority
jurisdiction. It is a quick and effective method by which junior officers,
non-commissioned officers and members below non-commissioned oficers (who
have pleaded guilty) are afforded the opportunity to learn from relatively
minor disciplinary indiscretions. The scheme was amended by the Defence
Legislation Amendment Act 2008 to give effect to a previous military
justice review to expand the scope of the DO scheme to include 'junior
officers', namely, Lieutenant in the Navy, Captain in the Army and Flight
Lieutenant in the Air Force. It was also extended to allow Warrant Officers
to be appointed as discipline officers.
On 23 January 2009, the final report into the Health of the Reformed
Military Justice System, conducted by Sir Laurence Street and Air Marshal
Les Fisher ('Street/Fisher Review'), recommended that the DO scheme be
extended to allow the Navy and Air Force equivalents of Warrant Officer
Class 2 ranks to be discipline officers. Because the current definition in
subsection 3(1) of the DFDA of 'warrant officer' is restricted to mean 'a
sailor, soldier or airman who holds the rank of warrant officer', it does
not include a Chief Petty Officer in the Navy or a Flight Sergeant in the
Air Force (the equivalent rank to a WO2 as outlined in the Defence Force
Regulations 1957).
Items 1 and 2 of Schedule 5 - Sections 169A (paragraphs (b) and (c) of the
definition of junior officer)
Currently, for the purposes of the DO scheme, the definition of 'junior
officer' in section 169A expressly excludes midshipmen in the case of Navy,
but not an officer cadet in the Army or Air Force (via the Defence Force
Legislation Act 2008). This definition is premised on a midshipman being
classified as an officer. However, although technically a midshipman is an
officer, he or she is still an 'officer under training', as are officer
cadets in the Army and Air Force. Therefore, to overcome this inconsistency
and to make it clear in the DFDA, items 1 and 2 amend paragraphs 169A(b)
and (c) in the definition of 'junior officer' to make express reference to
'other than a person who holds the rank of officer cadet'. Regulation 32A
of the Defence Force Discipline Regulations 1985 achieves a similar outcome
for Army and Air Force cadets by expressly excluding them from the
definition of 'junior officer'. This clarifies the jurisdiction for
discipline officers, ensuring that all officer cadets are subject to the
jurisdiction of a discipline officer and the appropriate punishments
outlined in section 169F of the DFDA.
Items 3 of Schedule 5 - Section 169A (definition of prescribed Defence
member)
Amends the definition of 'prescribed Defence member' by omitting the words
'warrant officer' and substituting 'Defence member' to reflect the
amendments discussed in item 4 below.
Item 4 of Schedule 5 - Section 169B
This item overcomes the limitation on who may be appointed as discipline
officers. As discussed above, because the current definition of 'warrant
officer' is restricted to mean 'a sailor, soldier or airman who holds the
rank of warrant officer', it does not include a chief petty officer in the
Navy or a flight sergeant in the Air Force. Section 169B of the DFDA has
therefore been amended to enable a commanding officer to appoint, in
addition to officers and warrant officers (Army), chief petty officers in
the Navy and flight sergeants in the Air Force.
Item 5 of Schedule 5 - At the end of Section 169BA
This item adds subsections 169BA(3) and (4) to enable a Service chief to
determine that certain chief petty officers and certain flight sergeants
are not 'prescribed Defence members' and are therefore not subject to the
DO scheme. The rationale for this is identical to that expressed in the
Explanatory Memorandum in respect of the insertion of section 169BA by the
Defence Legislation Amendment Act 2008 which deals with certain warrant
officers in the Army. That is, because of the experience, maturity and
responsibilities of certain chief petty officers and flight sergeants, it
is not appropriate for them to be subject to the DO scheme.
A determination under proposed subsection 169BA(4) is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments
Act 2003. Subsection (4) is included as a declaration of the law (to assure
readers) rather than as an expression of a policy to exempt a determination
from the provisions of the Legislative Instruments Act 2003.
Items 6, 7 and 8 of Schedule 5 - Section 169BB (table items 2,3 and 4
'Relevant discipline officer')
Part IXA currently outlines the jurisdiction of 'relevant discipline
officers' in relation to 'prescribed Defence members'. To assist with the
broader application of the DO scheme across small units, including Navy
patrol boats, where certain rank and/or personnel limitations exist, this
item will include a 'two rank differential' between the discipline officer
and infringed prescribed Defence members who are officer cadets, warrant
officers, NCO and members below NCO. However, the current one rank
differential for junior officers will remain.
Item 9 of Schedule 5 - Section 169C(c)
This item makes a minor technical amendment.
Items 10 and 11 of Schedule 5 - Sections 169C(d) and 169D(4) - Jurisdiction
of discipline officer and Issue of infringement notice
Currently, the DO scheme does not enable a discipline officer appointed in
a particular ADF unit to discipline visiting, transient or members attached
to another unit. In effect, this restricts the ability to discipline such
personnel, having instead to resort to a summary trial process. Therefore,
a Defence member who is attached from one unit to another is deemed to be a
member of the gaining unit and therefore under the jurisdiction of
discipline officers appointed by the commanding officer (CO) of the gaining
unit. A member who is on temporary duty at another unit however, remains
under the jurisdiction of the discipline officer appointed by the
commanding officer of his or her parent unit. Discipline officers at the
member's temporary unit will have jurisdiction over the member only if they
were appointed by the commanding officer of the member's parent unit. This
is considered to be an unintentional and restrictive limitation on the
jurisdiction of discipline officers, particularly having regard to the
range of posting/attachment/movement options available to the Services.
Section 169C of the DFDA outlines the jurisdiction of a discipline officer.
In particular, paragraph 169C(1)(d) provides that, to have jurisdiction
over a prescribed Defence member, the relevant discipline officer must be
appointed by the CO of the member being disciplined. Items 10 and 11 will
remove the requirement for a relevant discipline officer to be appointed by
the CO of the member being disciplined, to enable discipline officers to
discipline a prescribed Defence member of any Service to whom the DO scheme
applies. However, to maintain a level of visibility and, in particular,
transparency in the chain of command/military discipline process, this
expansion will be accompanied by a requirement that the relevant discipline
officer notify the outcome (including the punishment) of the discipline
officer proceeding to the CO of the member's parent unit. This latter
requirement will be implemented administratively.
Item 12 of Schedule 5 - Subsection 169F(1) (cell at table item 1, column 2)
A further issue with the DO scheme has been the disparate punishments
imposed across differing ranks outlined in the punishment table in section
169F. Accordingly, this amendment will apply a wider, but uniform, scale of
punishments to all ranks for similar infractions, giving discipline
officers increased discretion to suit particular circumstances. Currently,
junior officers, warrant officers, NCOs, officer cadets and members below
the rank of NCO are liable to minimum and maximum punishments of reprimand
and fine of one day's pay respectively. However, between those minimum and
maximum punishments, only officer cadets and members below the rank of NCO
have an intermediate scale of additional punishments, including restriction
of privileges, stoppage of leave, extra duties and extra drill.
This item will amend the table in subsection 169F(1) of the DFDA so that
junior officers, warrant officers and NCOs are subject to the additional
intermediate scale of punishments mentioned above. Rather than diminishing
any powers of punishment of discipline officers, this proposed increase in
punishment discretion will broaden the range of options available to a
discipline officer.
Item 13 of Schedule 5 - Application of amendments
This item specifies that these amendments will apply to acts or omissions
that occur on or after the commencement day. Furthermore, sub-item (2)
makes it clear that if an act or omission has taken place between two
dates, one before and one after the commencement date, it will be taken to
have occurred before the commencement date. For example, a member may have
committed an infringement prior to the commencement of the amendments, but
an infringement notice may not have been issued until after commencement.
Or, a member may have been dealt with by a discipline officer but a
punishment may not have been imposed. To avoid any possible prejudice to a
member (particularly in respect of the imposition of a punishment), this
sub-item will ensure that Part IXA of the DFDA in force prior to the
amendments applies to the entirety of the matter in the circumstances
outlined in sub-item (2).
Attachment A
Defence Honours and Awards which can be reviewed by the Defence Honours
and Awards Appeals Tribunal
Gallantry and Distinguished Service Awards
Victoria Cross for Australia
Victoria Cross
Star of Gallantry
Companion of the Distinguished Service Order
Distinguished Service Cross
Conspicuous Service Cross
Nursing Service Cross
Royal Red Cross (1st Class)
Distinguished Service Cross
Military Cross
Distinguished Flying Cross
Air Force Cross
Royal Red Cross (2nd Class)
Medal for Gallantry
Distinguished Service Medal
Distinguished Conduct Medal
Conspicuous Gallantry Medal
Conspicuous Gallantry Medal (Flying)
Conspicuous Service Medal
Distinguished Service Medal
Military Medal
Distinguished Flying Medal
Air Force Medal
Queen's Gallantry Medal
Commendation for Gallantry
Queen's Commendation for Brave Conduct
Queen's Commendation for Valuable Service in the Air
Mention in Despatches
Commendation for Distinguished Service
Unit Awards
Unit Citation for Gallantry
Meritorious Unit Citation
War Medals, Campaign Medals, Active Service and Service Medals
Naval General Service Medal 1915-62
General Service Medal 1918-62
1939-45 Star
Atlantic Star
Air Crew Europe Star
Africa Star
Pacific Star
Burma Star
Italy Star
France and Germany Star
Defence Medal
War Medal, 1939-45
Australia Service Medal 1939-45
Australian Active Service Medal 1945-1975
Korea Medal
United Nations Service Medal for Korea
General Service Medal 1962
Vietnam Medal
Vietnam Logistic and Support Medal
Australian Active Service Medal
International Force East Timor Medal
Afghanistan Medal
Iraq Medal
Australian Service Medal 1945-75
Australian Service Medal
Rhodesia Medal
Australian Long Service Medals
Defence Force Service Medal
Reserve Force Decoration
Reserve Force Medal
Defence Long Service Medal
Australian Cadet Forces Service Medal
Imperial Long Service Medals
Royal Navy Long Service and Good Conduct Medal
Royal Naval Volunteer Reserve Decoration
Royal Navy Reserve Decoration
Royal Naval Reserve Long Service and Good Conduct Medal
Royal Naval Volunteer Reserve Long Service and Good Conduct Medal
Royal Fleet Reserve Long Service and Good Conduct Medal
Meritorious Service Medal
Long Service and Good Conduct Medal (Army)
Efficiency Decoration
Efficiency Medal
Meritorious Service Medal (RAAF)
Long Service and Good Conduct Medal (RAAF)
Air Efficiency Award
Cadet Forces Medal
Other
Champion Shots Medal
Army Best Shot Medal
Queen's Medal for Champion Shots of the RAAF
Australian Defence Medal
Anniversary of National Service 1951-1972 Medal