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Defence Legislation Amendment (Flexible Career Practices) Bill 2000
Bills Digest No. 199 1999-2000
Defence Legislation Amendment (Flexible Career Practices) Bill 2000
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not h ave any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Defence Legislation Amendment (Flexible Career Practices) Bill 2000
The purpose of the Bill is to amend the legislative conditions governing the appointment and retention of Army and Nav y officers and enlisted members, by:
- extending the Limited Tenure Promotion scheme to ranks of Lieutenant-Colonel in the Army or Commander in the Navy, or higher ranks
- permitting Army and Navy officers and enlisted members to voluntarily change their emplo yment from open-ended to a fixed term, and
- allowing the rejection of the resignation of an officer who has not served a minimum period after appointment to that rank.
It is well-documented that it has proven difficult for the Australian Defence Force to attract and retain suitable personnel. (1) In 1998-1999 the personnel separation rate (2) in the Australian Defence Force was 14%. While this is not a problem per se , it has the potential to cause difficulties in certain significant positions. A particular difficulty faced by Defence, which does not affect the wider workforce, is the limitation on ability to recruit senior personnel laterally. The Australian Defence Force has a tendency to recruit junior people and train them extensively for a career of military service. (3)
In 1995, Mr Graham Glenn, AO conducted a comprehensive review of trends and factors which influence and impact upon Defence personnel policies. The Defence Personnel Policy Strategy Review (the Glenn Review (4) ) made a large number of recommendations relating to employment, work practices, pay, entitlements, family support, training, education and the Reserves. Several of these recommendations related to ‘flexible work practices’ (5) , a fundamental change from the notion of a lifetime military career.
The Glenn Review stated:
We favour greater choice, flexibility and options … We are proposing a fundamental shift away from traditional (reactive) recruiting practices and from what for many members is an undertaking of a lifetime career from the outset. In this context, we favour a system of constant recruitment and what we have called phased careers with Fixed Terms of Employment to stabilise the recruitment of people and permit more effective management and control of separations. (6)
I n his second reading speech, the Minister for Veterans' Affairs and Minister Assisting the Minister for Defence, Mr Bruce Scott, MP, stated that, after consultation with personnel across the Defence Force, and following the Glenn Review and the 1996 Defence Efficiency Review, the Australian Defence Force has introduced ‘numerous personnel policy changes … - ranging from job sharing and home based work to the employment of personnel on fixed periods of service.’ (7) The Bill seeks to encourage fixed periods of service by permitting officers and enlisted members of the Army and Navy to change their appointment from permanent to a fixed term.
Apart from fixed terms of employment, another key recommendation of the Glenn Review was the extension of Limited Tenure Promotion to all ranks. (8) The Bill extends Limited Tenure Promotion to the ranks of Lieutenant-Colonel in the Army, Commander in the Navy or above. This is only an extension of one rank in each of the Army and Navy. There are still 4 ranks of officers in the Army and 5 ranks of naval officers for whom Limited Tenure Promotion is not available. (9)
The Bill does not amend the appointment of Air Force officers. Appointment and resignation of Air Force officers is currently dealt with under the Air Force Regulations, not the Air Force Act 1923 , and the corresponding amendments for Air Force officers will be made by regulations. (10)
Section 10B of the Defence Act 1903 gives the Governor-General power to promote Army officers to the rank of Colonel or higher for a fixed term. Item 1 amends subsection 10B(1) by making officers also eligible for fixed term promotions to the rank of Lieutenant-Colonel. An identical amendment is made by item 7 to section 13A of the Naval Defence Act 1910 , making Navy officers eligible for fixed-term promotion to ranks of Commander or higher.
Officers of the Army and the Navy may be appointed either for a fixed term (11) or on a permanent basis. (12) An officer appointed for a fixed term may, before that fixed term expires, volunteer for a further period of service or for permanent appointment. (13) The Bill provides flexibility for officers with permanent appointments to volunteer to convert to an appointment for a fixed term ( items 2 and 7 ).
Enlisted soldiers in the Army and sailors in the Navy (14) may also be appointed either for a fixed term or until attaining retiring age. (15) A soldier or sailor appointed for a fixed term may, before that term expires, volunteer to extend the period of enlistment either for a further fixed term or until attaining retiring age. (16) The Bill will permit soldiers and sailors enlisted until retiring age to volunteer to convert to enlistment for a fixed period ( items 6 and 12 ).
The amendments relating to appointments are not expressly restricted to appointments made after the Bill commences.
Resignation of officers in the Army and Navy may currently be rejected if: (17)
- the resignation was tendered in time of war or defence emergency
- the resignation would seriously prejudice the ability to carry out military operations
- a senior office r (in the Army, with a rank of Colonel or higher, and in the Navy, with a rank of Captain or higher) has not served for 12 months after being appointed to that rank
- an officer in the Reserves tenders his or her resignation during a time requiring continuous full-time service by Reserves, or
- an officer has not completed the required minimum period of service after undertaking a course of training, a period of special duties or service outside Australia, or after being transferred to Australia. This period is known as the Return of Service Obligation (ROSO).
ROSO is imposed on members of the Australian Defence Force to ensure an adequate return for the extensive, and often expensive, training members undergo. (18) The basic formula for calculating ROSO is one year of service for each year of training, plus an additional year. (19) So, for example, an officer cadet who undertakes a three year degree course at the Australian Defence Force Academy plus one year of officer military training, has, on completion of the four years training, an outstanding ROSO of five years (the four years of training plus one year). An officer cadet who undertakes a four year degree (such as a degree in engineering or an honours degree) at the Australian Defence Force Academy plus one year of officer military training, has a ROSO of six years (the five years of training plus one year). (20) A Service Chief has the discretion to waive ROSO or to accept financial payment in lieu of service of the period of ROSO. (21) However, personnel have no right to fulfil the obligation by financial payment in lieu of ROSO. (22) As stated above, an officer’s resignation may be refused if the officer has not served the period of his or her ROSO.
From 1 July 1998, the Australian Defence Force introduced the concept of Fixed Periods of Service. All new entrants to the Australian Defence Force from that date were appointed or enlisted for an initial fixed term. (23) For officers who enter the Australian Defence Force through the Australian Defence Force Academy, the initial appointment is for a period of nine years. Officers who do not complete training at the Australian Defence Force Academy have an initial fixed period of service of six years. Medical, dental or chaplaincy officers may be appointed for terms other than the initial fixed terms. (24) The initial fixed term is separate from ROSO, although they are served concurrently. However, unlike ROSO, these initial fixed terms are legislatively unenforceable. Officers appointed for an initial fixed term may resign at any time (although their resignation may be rejected if they have not completed their ROSO). (25)
The Bill seeks to make initial fixed terms enforceable. It adds a new category of resignations which may be refused, where an officer has not completed the required minimum period of service after his or her appointment as an officer ( items 3, 4, 5, 8, 9 and 11 ). The Chief of Army (in the case of Army officers) and the Chief of Naval Staff (for Navy officers) may determine what minimum period is required to be served.
Neither the Explanatory Memorandum nor the second reading speech provides any indication as to what the initial minimum periods of service would be. A determination by the Chief of Army or the Chief of Naval Staff is not a disallowable instrument and thus is not subject to review by Parliament.
Officers ranked Colonel or higher in the Army, or Captain or higher in the Navy would still be subject to the existing requirement to serve 12 months after being appointed to that rank before resigning. This is in addition to any ROSO they may have, and to service of the initial fixed term proposed to be introduced by the Bill.
The amendments relating to resignations only apply to appointments made after the Bill commences ( clause 4 ).
The amendments made by the Bill do not, on their own, create a system of flexible Defence careers or implement the recommendations made by the Glenn Review and the 1996 Defence Efficiency Review. However, they do reduce the legislative barriers to achieving this.
- See Australian National Audit Office Performance Audit, Retention of Military Pers onnel: Department of Defence (1999-2000), p. 14; David Anderson ‘The Challenge of Military Service: Defence Personnel Conditions in a Changing Social Context’ Information and Research Services Background Paper (10 November 1997).
- The terminology used by Defence to describe staff turnover.
- Australian National Audit Office Performance Audit, Retention of Military Personnel: Department of Defence (1999-2000), p. 14.
- Serving Australia - The Australian Defence Force in the Twenty First Century (1995).
- Serving Au stralia - The Australian Defence Force in the Twenty First Century (1995) at p. viii.
- Serving Australia - The Australian Defence Force in the Twenty First Century (1995) at p. 77.
- Mr Scott, MP, Minister for Veterans' Affairs and Minister Assisting the Minister for Defence, Speech on Second Reading of the Defence Legislation Amendment (Flexible Career Practices) Bill 2000, House of Representatives Hansard , p. 16074, 7 June 2000. For a comprehensive review of conditions in the Australian Defence Force generally, see David Anderson ‘The Challenge of Military Service: Defence Personnel Conditions in a Changing Social Context’ Information and Research Services Background Paper (10 November 1997).
- Serving Australia - The Australian Defence Force in the Twenty Fir st Century (1995) at p. 286.
- These are Second Lieutenant, Lieutenant, Captain and Major in the Army, and Midshipman, Acting Sub-Lieutenant, Sub-Lieutenant, Lieutenant and Lieutenant-Commander in the Navy.
- Explanatory Memorandum to the Defence Legislation Amendment (Flexible Career Practices) Bill 2000, p. i.
- Section 10A of the Defence Act 1903 , section 9 of the Naval Defence Act 1910 .
- Section 10 of the Defence Act 1903 , section 8 of the Naval Defence Act 1910 .
- Section 10C of the Defence Act 1903 , section 11 of the Naval Defence Act 1910 .
- Soldiers and sailors are members of the Army and Navy respectively who are not officers, subsection 4(1) of the Defence Act 1903 , section 3 of the Naval Defence Act 1910 .
- Section 36 of the Defence Act 1903 , section 25 of the Naval Defence Act 1910 .
- Section 37 of the Defence Act 1903 , section 26 of the Naval Defence Act 1910 .
- Section 17 of the Defence Act 1903 , section 13 of the Naval Defence Act 1910 .
- Defence Instruction (General) PERS 33-2 paragraph 3.a.
- Defence Instruction (General) PERS 33-2 paragraph 8, Defence Instruction (Army) PERS 177-1 paragraph 15, Defence Instruction (Navy) PERS 42-9 paragraph 15.
- Defence Instruction (General) PERS 33-2 paragraph 12, Defence Instruction (Army) PERS 177-1 Annex A.
- Defence Instruction (General) PERS 33-2 paragraph 5, Defence Instruction (Army) PERS 177-1 paragraph 42.
- Defence Instruction (Army) PERS 177-1 paragraph 41, Defence Instruction (Navy) PERS 42-9, Annex A (Chief of Navy Determination 4F) paragraph 9.
- Defence Instruction (General) PERS 33-3 paragraphs 1 and 8.
- Defence Instruction (General) PERS 33-3 paragraph 14.
- Defence Instruction (General) PERS 33-3 paragraph 18.
Katrine Del Villar
27 June 2000
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and Members of the Australia n Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.