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Defence Legislation Amendment Bill (No. 1) 1999



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Bills Digest No. 183  1998-99

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Defence Legislation Amendment Bill (No. 1) 1999

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Contents

 

 

Passage History

Defence Legislation Amendment Bill (No. 1) 1999

Date Introduced:  30 March 1999

House:  House of Representatives

Portfolio:  Defence

Commencement:  Royal Assent, subject to a number of qualifications.  Subclauses 2(2) and 2(3) provide for the commencement of the items in Schedules 1 and 2 on a day or days to be fixed by Proclamation, or on the first day six months after Royal Assent. 

Subclause 2(4) states that Schedule 5 commences on 1 January 2001.

Subclause 2(5) states that Item 2 in Schedule 6 is taken to have commenced on 19 February 1997, immediately after the commencement of Schedule 2 to the Defence Legislation Amendment Act (No. 1) 1997 .

Purpose

The Bill proposes to amend the Defence Act 1903 to implement a process for urine testing of members of the Defence Force who undertake combat and combat-related duties, and associated disciplinary measures.

The Bill proposes to amend the Defence Act 1903 and the Naval Defence Act 1910 to:

  • provide a mechanism for the Chief of the Defence Force, the Chief of Army, the Chief of Navy and other officers on limited tenure promotion to transfer from the Army to the Australian Army Reserve and from the Navy to the Australian Naval Reserve, and
  • allow the Chief of Army and the Chief of Navy to delegate theirs power to retire officers, and to terminate the appointment of officers.

The Bill also prop oses:

  • to repeal the Supply and Development Act 1939 and make consequential amendments to other Commonwealth legislation, and
  • minor amendments to the Defence Force (Home Loans Assistance) Act 1990 and the Defence Legislation Amendment Act (No.1) 1997 .

Background

As there is no central theme to this Bill, the background to each major amendment will be explained where relevant in the Main Provisions section below.

Main Provisions

The ‘No Drugs’ Policy of the Australian Defence Force and random drug testing of its members

The Australian Defence Force (ADF) has long had a ‘No Drugs’ policy.  The policy requires the relevant service authority to initiate disciplinary or administrative action against any member of the ADF found selling, possessing, dealing in, or administering an illegal drug (either to himself or herself or to someone else).(1) The administrative sanctions include termination of appointment (where the offender is an officer), discharge from the service (for non-officers), or reduction in rank.

The use, possession and dealing of illegal drugs are also offences under section 59 of the Defence Force Discipline Act 1982 .  Depending on the nature of the offence, sentences range from fines (for own use possession of cannabis) to imprisonment (for possession of, or dealing, of narcotics other than cannabis).

In 1997, there were 3,958 summary trials under the Defence Force Discipline Act.  Of these, 133 (or 3.36 per cent) related to offences under section 59.(2)

Before enlistment or appointment to the Army, Navy or Air Force, ADF applicants are required to be made aware of the policy and given a verbal warning of the consequences of its breach.  Prospective ADF members are required to provide written acknowledgment that they have been made aware of the policy.(3)

The issue of random urine testing of members of the Australian Defence Force for narcotic substances has a long history. 

In September 1993, the then Chief of the Defence Force, Admiral Beaumont, directed that a Urinalysis Testing Program (UTP) be impleme nted across the Australian Defence Force (ADF), with effect from 1 July 1995.  The proposal would entail the testing of urine samples of randomly selected ADF members for narcotic substances.  In terms of testing, emphasis was going to be placed on operational units and basic training establishments(4). 

The initiative was supported by the then Minister for Defence (Senator Ray) and the Minister for Defence Science and Personnel (Senator Faulkner).  At the time the program was announced, Senator Faulkner spoke about the need to balance occupational health and safety concerns, and the civil liberties of ADF members, and stated that care would be taken in protecting the dignity and privacy of individuals tested.(5)

On 28 November 1994, a Defence Instruction was issued, restating the ADF’s ‘No Drugs’ policy, and setting out procedures for the conduct of the UTP.(6)

In the meantime, the proposed UTP had attracted the attention(7) of the then Privacy Commissioner, Kevin O’Connor, who outlined his concerns to the then Government.  The concerns, set out in the Commissioner’s Seventh Annual Report on the Operation of the Privacy Act, were as follows:

‘The Commissioner was concerned that the testing may not be necessary for or directly related to a lawful purpose of the Defence Force (one of the qualifications set out in the IPPs(8)) and may be unnecessarily intrusive.  The scheme would involve collecting samples where there is no reasonable suspicion of drug use, where drug use is not particularly relevant to the member’s functions, and where the samples would not be analysed for legal drugs that may also affect discipline, safety or efficiency.  The Commissioner considers the following matters relevant:

  • What evidence is there to indicate the prevalence of drug use within the ADF?
  • What demonstrable impact are existing levels of the use of the drugs in question having on the discipline, safety and efficiency of the ADF (or on public welfare more generally)?
  • How does the likely effectiveness of drug testing compare with the effectiveness of other means of supervision?’(9)

The Privacy Commissioner then recommended that ‘…if the Government considered that the public interest in random drug testing of ADF members outweighed the privacy concerns’, then it should consider enact ing legislation.  Any such legislation should provide mechanisms for fair and lawful collection, secure storage, and limitations on the disclosure, use or retention of test results.(10)

The Attorney-General’s Department also raised concerns with the UTP, s uggesting that legislation might be required.(11)

As a consequence, the Government deferred the introduction of the UTP pending resolution of the issues raised.  At the time, Senator Ray (the then Minister for Defence) stated that if it were necessary to legislate to implement the UTP, the Government would do so.(12) The Government failed to introduce a Bill before it lost office in March 1996. 

On 1 April 1997, Cabinet approved the proposal to enact legislation to facilitate urinalysis testing in the ADF.(13)

Schedule 1 - urinalysis testing of members of the Defence Force who undertake combat and combat-related duties

Item 1 of Schedule 1 inserts new Part VIIIA into the Defence Act.  New Part VIIIA will set out a mechanism for conducting random urine testing of members of the Defence Force to determine whether they have used narcotic substances.  The new Part will apply to those members of the ADF undertaking combat or combat-related duties. 

‘Narcotic substance’ has the same meaning as in the Customs Act 1901 ( new section 93 ), and includes substances used to manufacture illegal recreational drugs such as heroin, amphetamines and cannabis.  Section 37 of the Defence Force Discipline Act 1982 makes drunkenness on duty an offence - the maximum punishment is 6 months imprisonment. 

A member of the Defence Force may be asked to provide a urine sample in circumstances to be set out in the regulations, by a person authorised under the regulations ( new section 94 ).  Although there are no draft regulations publicly available, the Minister Assisting the Minister for Defence stated that testing will be conducted on a random basis.(14)

Before the person provides a sample, the person who is to supervise its collection must give to the member a written notice explaining how the sample is going to be dealt with once it is collected ( new section 96 ). 

The person giving the sample is entitled to do so in private [ new subsection 95(1) ].  The collection process must be supervised by a qualified medical practitioner, or, where this is not possible, a person whose duties include providing medical assistance [ new subsection 95(2) ]. 

New section 97 provides for the making of regulations.  The regulations may prescribe procedures for dealing with samples [ new subsection 97(1) ].  The regulations may also provide that substantial compliance with the prescribed procedures is sufficient [ new subsection 97(3) ]. 

In any event, the regulations must prescribe a process for informing the member of the result of his or her urine test [ new subsection 97(2) ]. 

New section 98 allows the authorised person to disregard a positive result if the presence of the narcotic substance was wholly attributable to something done in accordance with the directions or recommendations of a medical practitioner.

If a positive test is returned, the authorised person has to arrange for a doctor to conduct an assessment to determine whether the member concerned is fit or suitable for further service in the Defence Force ( new section 99 ). 

Termination or discharge

If a member is assesse d to be unfit or unsuitable, the relevant service chief (or the Minister, in respect of officers of Brigadier rank or above) must  (under new section 100 ) give the member a written notice outlining the result of the assessment, and giving the member at least 28 days to provide a written statement of reasons as to why he or she should not be discharged (where the member is not an officer), or have his or her appointment terminated (where the member is an officer).

New subsection 100(2) provides that any period during which a complaint by the member to the Defence Force Ombudsman, or under the Regulations, is not to be counted for the purposes of determining the end of the period for giving a statement of written reasons. 

New section 101 states that where a person fails to provide written reasons, the relevant service chief must discharge the member from the service, or, where the member is an officer, terminate his or her appointment. 

Where the service chief has considered a written statement provided by the member, and is of the opinion that the member must be discharged from the service, or have his or her appointment terminated, then the relevant service chief must discharge the member or terminate the member’s appointment.

In the case where the member of the Defence Force is of the rank of Major-General or above, the Governor-General is the only person with the authority to terminate the member’s appointment.

New section 102 states that a notice of discharge or termination must be in writing, and must specify the date on which the discharge or termination is to take effect. 

Other sanctions - reduction in rank, warnings

New subsection 103(2) empowers the relevant service chief to reduce the member to the next lower rank.  This section applies where a member has returned a positive result, but has not been discharged or terminated (irrespective of the result of an assessment under section 99). 

Certain procedural requirements apply.  The service chief must give the member written notification of the proposal and give him or her a reasonable opportunity to show cause why his or her rank should not be reduced [ new subsection 103(3) ].  A reduction in rank must be in writing, it must specify the day on which the reduction is to take effect, and a copy must be given to the member [ new subsections 103(4), (5) and(6) ].

New section 104 gives the relevant service chief the power to give a notice to a member who returns a positive result to the effect that any future positive results will lead to termination or discharge (as appropriate) or reduction in rank. 

New section 105 states that nothing in Part VIII precludes the taking of other lawful administrative action against a member. 

Related provisions

Failure or refusal to provide a sample when required to do so under section 94 is an offence ( new section 106 ), as is tampering with a urine sample ( new section 107 ).  The maximum penalty for both offences is 6 months imprisonment. 

New section 108 provides that a finding of a urine test provided under this Part is not admissible in evidence against the member in any proceeding for an offence under the Defence Force Discipline Act 1982 , or certain related offences under the Crimes Act 1914 .

Items 2-4 of Schedule 1 make consequential amendments to section 120A of the Defence Act.  This section deals with delegation of powers. 

Item 2 amends subsection 120A(4AA) to allow the Chief of Army to delegate powers exercisable under (new sections 100, 101 and 103) to an officer of the Army holding a rank not below that of Brigadier.

Item 3 amends subsection 120A(4AB) to allow the Chief of Navy to delegate powers exercisable under new sections 100, 101 and 103 to an officer of the Navy holding a rank not below that of Commodore.

Item 4 amends subsection 120A(4AC) to allow the Chief of Air Force to delegate powers exercisable under new sections 100, 101 and 103 to an officer of the Air Force holding a rank not below that of Air Commodore.

Schedule 2 - Transfer of officers to the Army Reserve and Navy Reserve

The Bill proposes to amend the Defence Act 1903 and the Naval Defence Act 1910 to allow certain officers of the ADF to transfer to the Australian Army Reserve or Australian Naval Reserve when their term of appointment ends.  The Air Force Regulations 1927 are to be amended to allow officers of the Australian Air Force to transfer to the Australian Air Reserve on retirement.

At present, an officer who wishes to move to the Reserves has to retire (or be retired) from the relevant Service, and then seek to be appointed to the Reserves.  Given that the Reserves are part of the Services, this would appear to be a administratively cumbersome approach.  The amendments proposed by Schedule 2 would allow the officers to whom the provisions will apply to transfer to the Reserves without first having to retire from the Service.

The Second Reading Speech to the Bill sets out the rationale for the amendments:

‘These amendments will maintain access to these officers’ expertise, and avoid the more cumbersome present requirement of an officer being first retired from the Defence Force and then appointed to the Reserves under separate processes.  The retention of these officers in the Reserves will also enhance the Defence Force’s capacity for rapid expansion should an emergency situation develop at some stage in the future.’(15)

The amendments may also g o some way to addressing a common problem associated with the Reserve forces (in particular, the Army Reserve)- the lack of senior officers with prior military service.(16)

To whom will the amendments apply?

The amendments proposed by the Bill will apply to the Chief of the Defence Force, the Vice Chief of the Defence Force, the Chief of Army, the Chief of Navy, officers engaged on what are known as ‘limited tenure promotions’, and officers who are retired from the Army and Navy pursuant to the ADF’s policy of Management Initiated Early Retirement.

In general terms, the above groups of officers will be able to request a transfer to the Australian Army Reserve or the Australian Naval Reserve on the expiry of their term of appointment.  If the relevant Service Chief agrees to the transfer (or, in the case where a Service Chief, the Chief of the ADF or Vice Chief of the ADF requests a transfer, the Governor-General), then the officer will be transferred to the relevant Reserve.  The transfer itself will be effected by a written instrument issued in accordance with the Regulations, with the terms of transfer contained in that instrument.(17)

An officer who transfers to the Reserves will still receive the payments to which they are entitled on retirement from the service - ie. military superannuation, and amounts in respect of untaken long service leave and annual leave. 

Existing provisions pertaining to the appointment and retirement of the Chief of the ADF, the Service Chiefs, and the Vice Chief of the ADF

The Chief of the Defence Force, the Chief of Army, the Chief of Navy and the Chief of Air Force are all appointed by the Governor-General under subsection 9(1) of the Defence Act.  The Vice-Chief of the Defence Force is appointed by the Governor-General under subsection 9AA(1) of the Defence Act. 

Section 9AB provides for the making of fixed term appointments to these positions.  Once the period in the instrument of appointment has expired, and the person has not been reappointed to the position, the Governor-General must retire the person as soon as is practicable.  The relevant retirement provisions are subsection 20(1) of the Defence Act, and subsection 13(1) of the Naval Defence Act. 

Limited tenure promotion

Both the Defence Act [subsection 10B(1)] and the Naval Defence Act [subsection 13A(1)] respectively allow the Governor-General to promote an officer of the rank of Colonel or highe r or the rank of Captain or higher, to a higher rank for a specified period.  This is known as a ‘limited tenure promotion’.  The Governor-General may extend the period of the promotion [Defence Act, subsection 10B(2); Naval Defence Act, subsection 13A(2)].

The Defence Act and the Naval Defence Act provide that where the period of promotion ends, the officer is either retired, or (if granted permission to do so) reverts to the rank that he or she held before the promotion [subsection 10B(5); subsection 13A(5)].  According to ADF policy, limited tenure promotion is confined to cases where an officer has ‘…skills relevant to a particular appointment but does not possess skills which will enable wider employability at the higher rank level.’(18)

Management Initiated Early Retirement

The relevant Defence Instruction describes Management Initiated Early Retirement (MIER) as follows:

‘…a flexible management tool to assist the Services in ensuring an adequate pool of suitably qualified officers for the staffing of senior appointments.  The relatively limited number of senior officer positions can create significant difficulty in providing the necessary broadening experiences to prepare officers for promotion to the most senior ranks.  MIER will be considered for senior officers whose performance is satisfactory but who are no longer widely employable and are restricting the promotion opportunities of others.’(19)

At present, MIER is limited to officers who have completed at least 20 years service, have spent at least 2 years at their current rank, and have attained the rank of Lieutenant Colonel or higher.(20) A person who is retired under the MIER provisions (Defence Act, sections 25B - 25D; Naval Defence Act, sections 13K - 13M) receives a ‘special benefit’, which includes a severance pay component of two weeks pay for each year of service (including recognised prior service) to a maximum of 48 weeks. 

The Australian Army Reserve and the Australian Naval Reserve are each divided into Active and Inactive Reserves.  Inactive Reserves do not have any training obligations (although they are potentially subject to being called out during times of war or defence emergency).  Accordingly, they are not entitled to any remuneration.  Members of the Active Reserves, on the other hand, have training obligations, for which they are paid. 

Although the general policy of the ADF is (and will be) that members of a Service are appointed to the Inactive Reserve on retirement, the amendments proposed by the Bill will not prevent some officers (most notably former Service Chiefs, the Chief and Vice Chief of the ADF, or officers on limited tenure promotion) from being transferred to the Active Reserves. 

This is because the amendments proposed by the Bill will provide for the transfer of officers to the ‘Australian Army Reserve’ or ‘Australian Naval Reserve’, rather than to the active or inactive part of the relevant Reserve.

In other words, there is the potential that an officer will leave the Army or Navy with their entitlements on retirement (ie superannuation payout under the relevant superannuation scheme, plus amounts in respect of accrued long service leave and annual le ave), and transfer to a (paid) position in the Active Reserves.

Amendments to the Defence Act 1903 and the Naval Defence Act 1910

Item 1 amends subsection 10B(3) of the Defence Act to remove the reference to subsection 10B(4).  This is to reflect the fact that an officer on a limited-tenure promotion will be able to avoid being retired by a means other than being granted a reduction in rank.  Item 13 amends subsection 13A(3) of the Naval Defence Act to similar effect.

Item 2 inserts new subsection 10B(5A) of the Defence Act to allow an army officer on a limited tenure promotion to give written notice to the Chief of Army stating that he or she wishes to transfer to the Australian Army Reserve at the end of the term of promotion.  The notice must be provided to the Chief of Army before the end of the term of promotion. 

New subsection 10B(5B) of the Defence Act provides that if the Chief of Army is notified in accordance with subsection 10B(5A), then the officer is not retired from the Army [as he or she otherwise would have been in accordance with subsection 10B(3)], and is transferred to the Australian Army Reserve. 

Item 14 inserts new subsections 13A(5A) and 13(5B) in the Naval Defence Act.  These amendments have the same effect as the amendments proposed by item 2 , but will apply to naval officers on limited tenure promotion.

Item 3 repeals existing subsection 20(1), and replaces it with a new provision.  New subsection 20(1) will provide that, once the term of appointment of the Chief of the Defence Force, the Chief of Army or Vice Chief of Army ends, the Governor-General must either retire the person as soon as is practicable, or transfer him or her to the Australian Army Reserve.  If an officer wants to transfer to the Australian Army Reserve, he or she must notify the Governor-General in writing before the expiry of his or her term of appointment.

Item 15 repeals subsection 13C(1) of the Naval Defence Act, and substitutes it with a new provision.  It will provide that, once the term of appointment of the Chief of Navy or Vice Chief of Navy ends, the Governor-General must either retire the person as soon as is practicable, or transfer him or her to the Australian Naval Reserve.  If an officer wants to transfer to the Australian Naval Reserve, he or she must notify the Governor-General in writing before the expiry of his or her term of appointment.

Items 4, 5, 6 and 7 amend subsections 23(1) -(4) of the Defence Act, to reflect the fact that an officer will be able to be transferred to the Australian Army Reserve under subsection 20(1).  Items 16, 17, 18 and 19 make amendments of similar effect to the Naval Defence Act, to reflect the fact that an officer will be able to be transferred to the Australian Naval Reserve under subsection 13C(1) of that Act.

The effect of the amendments will be that a transfer to the Australian Army or Naval Reserve, or a notice of retirement is to be in writing, and must specify the date on which the transfer or retirement is to take effect. The date of transfer or retirement must not be earlier than the date on which the officer is given the document, and not later than 3 months after that date. 

Items 8 -12 make amendments to sections 25B, 25C and 25D of the Defence Act.  These provisions deal with the application of MIER, in the interests of the organisational effectiveness of the Army. 

Item 8 repeals existing subsection 25B(1) of the Defence Act, replacing it with a new provision.  The amendment will allow the Chief of Army to give a notice to an officer stating that if the officer either retires, or notifies his or her intention to transfer to the Australian Army Reserve, within a specified period, that officer will be entitled to a special benefit in accordance with a determination made under section 58B or 58H of the Defence Act.  The benefit includes two weeks salary to be paid for each year of service (including prior service recognised for long service leave purposes up to a maximum of 48 weeks salary.

Item 20 inserts a new subsection 13K(1) in the Naval Defence Act, which will have the same effect as item 8 in respect of the Chief of Navy and naval officers.

Item 9 inserts new subsection 25B(4) of the Defence Act.  The amendment will provide that an officer who is given a notice and who requests a transfer to the Australian Army Reserve will be able to transfer within the period specified in the notice (rather than at the end of that period).  Item 21 inserts new subsection 13K(4) of the Naval Defence Act, to the same effect.

Item 10 amends subparagraph 25C(1)(a)(iii) of the Defence Act.  Subsection 25C(1) provides that a notice under subsection 25B(1) cannot be given to an officer unless:

  • the officer has been notified that the Chief of Army is consideri ng giving him or her such a notice and the reasons why, and
  • the officer has been invited to give the Chief of Army reasons as to why he or she should not be given such a notice. 

Item 22 makes an amendment of similar effect, to subparagraph 13L(1)(a)(iii) of the Naval Defence Act.

Item 11 repeals existing section 25D of the Defence Act, replacing it with a new section.  The new provision will apply to an officer who has been given a notice under subsection 25B(1), and who has not retired from the Army or transferred to the Australian Army Reserve within the notice period. 

If the Chief of Army considers that it is necessary in the interests of the organisational effectiveness of the Army, he or she can give a notice to the officer under subsection 25B(2), stating that, unless the officer otherwise requests a transfer to the Australian Army Reserve within the period specified in the notice (at least 13 months), the officer will be retired.  An officer who transfers or retires pursuant to a notice under subsection 25B(2) will not receive a special benefit.

Item 23 repeals existing section 13M of the Naval Defence Act and replaces it with a new provision, with similar effect to the amendment to the Defence Act proposed by item 11 .  In other words, if the Chief of Navy considers that it is necessary in the interests of the organisational effectiveness of the Navy, he or she can give a notice to the officer under subsection 13K(1) of the Naval Defence Act stating that, unless the officer other requests a transfer to the Australian Naval Reserve within the period specified in the notice (at least 13 months), the officer will be retired.  The officer concerned will not receive a special benefit. 

Item 12 is a savings provision - it provides that sections 25B and 25D of the Defence Act as in force before the commencement of the item will continue to apply to an army officer who was given a notice under subsection 25B(1) as in force at that time.

Item 24 is another savings provision - it provides that sections 13K and 13M of the Naval Defence Act as in force before the commencement of the item will continue to apply to a naval officer who was given a notice under subsection 13K(1) of that Act as in force at that time. 

Schedule 3 - Delegation of powers to retire, and terminate the appointments of, officers

Item 1 of Schedule 3 amends subsection 120A(4AA) of the Defence Act to permit the Chief of Army to delegate, by written instrument, to a person not below the rank of Brigadier, the following powers:

  • to retire an of ficer (other than the Chief or Vice Chief of Army) on expiry of his or her appointment
  • to retire an officer for incapacity
  • to terminate the appointment of an officer who has been absent without leave for at least three months (continuously)
  • to terminate the appointment of an officer in the following circumstances: inefficiency, incompetence, underperformance, or where the officer has been convicted of an offence or service offence, and
  • to retire or transfer an officer pursuant to a notice given under section 25B or 25C of the Act.

Item 2 of Schedule 3 amends subsection 44B(3A) of the Naval Defence Act to permit the Chief of Navy to delegate, by written instrument, to a person not below the rank of Commodore, the following powers:

  • to retire an officer (other than the Chief or Vice Chief of Navy) on expiry of his or her appointment
  • to retire an officer for incapacity
  • to terminate the appointment of an officer who has been absent without leave for at least three months (continuously)
  • to terminate the appointment of an officer in the following circumstances: inefficiency, incompetence, underperformance, or where the officer has been convicted of an offence or service offence, and

to retire or transfer an officer pursuant to a notice given under section 13K or 13M of the Act.

Schedule 4 - Amendment of the Defence Force Discipline Act 1982

Item 1 of Schedule 4 amends subsection 96(1) of the Defence Force Discipline Act 1982, to extend the period of time in which a person can be charged with an offence against the Act or regulations from three years to five years after the offence is alleged to have been committed. 

The amendment implements the main recommendation of the Senate Foreign Affairs, Defence and Trade References Committee inquiry on The Crash of RAAF Nomad Aircraft A18-401 on 12 March 1990 .  On that date, an RAAF Nomad Aircraft crashed at RAAF Edinburgh field in South Australia killing the pilot, Flight-Lieutenant Donovan.  The crash was caused by the failure of the tailplane assembly, which would probably have been detected, had procedures been followed and the plane serviced.  In its report, the Committee found that members of the RAAF had been negligent, and charges should have been laid under the Defence Force Discipline Act.  At the time that the Committee made this recommendation, the three-year period of limitations had passed.  Accordingly, the Committee recommended that the limitation period be extended to five years.  As Senator Woods stated on 30 May 1996, when tabling the report:

‘For the day-to-day management of discipline in the defence forces, three years may well be enough, bit our recommendation is that the period should be extended to five years to allow for circumstances like this.  We are not implying that a number of inquiries were instituted so that the statute of limitations should be exceeded, but certainly it would be possible in theory for the defence forces to use that action as a delaying prospect to prevent any charges being laid.’(21)

In its response to the Report, tabled 23 September 1997, the Government agreed to the Committee’s recommendation.  Speakin g in support of the recommendation, Senator Brownhill stated:

‘On a number of occasions - in fact, on too many occasions - where accidents have occurred in the Department of Defence, the period of inquiry has extended beyond three years, so that the Defence Force Discipline Act has prevented any disciplinary action being taken against anyone who is found culpable in any way at all.’(22)

Item 2 repeals section 196B of the Act.  This provision established the Defence Force Discipline Legislation Board of Review (the Board of Review).  The provision required the Board of Review, within 12 months of its establishment, to provide a report to the Minister for Defence relating to the operation of the Act, and the operation of any other law of the Commonwealth or Australian Capital Territory pertaining to the discipline of the Australian Defence Force. 

The report of the Board of Review was provided to the Minister for Defence Science and Personnel on 31 May 1989, and the Explanatory Memorandum to the Bill states that all of its recommendations have been implemented.(23) Accordingly, the provision serves no further purpose. 

Schedule 5 - Repeal of the Supply and Development Act 1939

Item 1 of Part 1 of Schedule 5 repeals the Supply and Development Act 1939 , for the reason that it is redundant.  This legislation provided for the Governor-General to establish ‘undertakings’ to satisfy Australia’s defence needs.  The Act and associated Regulations also set terms and conditions of employment for people employed in such undertakings. 

As a result of the corporatisation, privatisation or closure of Australia’s defence production facilities, there are no longer any activities carried on, or employees employed, under the Act. 

Part 2 of Schedule 5 makes a series of consequential amendments to other Commonwealth legislation, generally to reflect the repeal of the Supply and Development Act.

Item 2 omits the reference to ‘ Supply and Development Act 1939 ’ from the definition of ‘Commonwealth employee’ in subsection 4(1) of the Disability Discrimination Act 1992

Item 3 repeals subparagraph 85(2)(k)(iv) of the Merit Protection (Australian Government Employees) Act 1984.  This provision allows regulations to be made in respect of the application of that Act to people employed under section 10 of the Supply and Development Act.

Item 4 repeals paragraph 22B(14)(d) of the Public Service Act 1922.  This provision provides for the making of regulations applying the equal employment opportunity provisions of that Act to people employed under section 10 of the Supply and Development Act.  Item 5 makes a consequential amendment to subsection 22B(16) of the Public Service Act. 

Item 6 repeals a reference to the Supply and Development Act in subsection 22B(17) .  This provision allows the Minister for Defence to issue a written instrument exempting certain staff employed under the Supply and Development Act and the Naval Defence Act from the application of the equal employment opportunity provisions of the Public Service Act.

Items 7, 8 and 9 make consequential amendments to section 22C of the Public Service Act to reflect the repeal of the Supply and Development Act  This provision imposes obligations on Departments and Agencies to prepare industrial democracy plans.

Items 10 11 and 12 amend the Part IV mobility provisions of the Public Service Act to reflect the repeal of the Supply and Development Act. 

Item 13 repeals paragraph 3(4)(o) of the Remuneration Tribunal Act 1973 to remove the reference to offices under section 10 of the Supply and Development Act. 

Item 14 omits the reference to the ‘ Supply and Development Act 1939 ’ from the definition of ‘Commonwealth employee’ in subsection 4(1) of the Sex Discrimination Act 1984. 

Schedule 6 - Technical amendments

Item 1 of Schedule 6 makes a minor typographical amendment to subparagraph (a)(ii) of the definition of ‘basic service period’ in section 3 of the Defence Force (Home Loans Assistance) Act 1990.

Item 2 amends a heading to an amendment (of the Defence Force Discipline Act 1982 ) contained in the Defence Legislation Amendment Act (No. 1) 1997

Endnotes

  1. Defence Instructions (General) PERS 15 -2, Inv olvement by Members of the Australian Defence Force with Illegal Drugs, p. 2.
  2. Judge Advocate General, Defence Force Discipline Act 1982, Report for the period 1 January to 31 December 1997, AGPS 1999, Annex A.
  3. Defence Instructions (General) PERS 15 -2, Involvement by Members of the Australian Defence Force with Illegal Drugs, p. 2; Annex A, Annex B.
  4. Senator the Hon J Faulkner, Senate Hansard, 7 October 1993, p. 1858.
  5. Ibid., p. 1858.
  6. Defence Instructions (General) Pers 15 -2, Involvement by Members of the Australian Defence Force with Illegal Drugs.
  7. Privacy Commissioner, Seventh Annual Report on the Operation of the Privacy Act for the period 1 July 1994 to 30 June 1995, p 25.  The Report states that the Commissioner found out about the proposal from callers to the Privacy Hotline.
  8. Information Privacy Principles.  These are contained in section 14 of the Privacy Act 1988.  IPP No. 1 states that personal information shall not be collected for inclusion in a record unless:

‘(a)  the information is collected fo r a purpose that is a lawful purpose directly related to a function or activity of the collector, and

(b)  the collection of the information is necessary or directly related to that purpose.’

  1. Privacy Commissioner, Seventh Annual Report on the Operation of the Privacy Act for the period 1 July 1994 to 30 June 1995, p. 26.
  2. Ibid., p. 26.
  3. Senator the Hon Robert Ray, Parliamentary Debates, 26 June 1995, p. 1726.
  4. Ibid., p. 1726.
  5. Army, 10 December 1998.
  6. The Hon Bruce Scott MP, Defence Legislation Amendment Bill (No. 1) 1999, Second Reading Speech
  7. ibid.
  8. Tamsitt, G.M, ‘The Army Reserve: Preparing for a Total Force’, Australian Defence Force Journal, No. 123, March/April 1997, p. 27.
  9. Australian Military Regulations, r. 76; Australian Naval Regulations, r.35.
  10. Defence Instructions (General) PERS 03 -3, Policy on the Retirement and Termination of Appointment of Australian Defence Force Officers, p. 6.
  11. Ibid., p. 4 
  12. ibid., p. 5. 
  13. Senate, Parliamentary Debates, 30 May 1996, p. 1492.
  14. Senate, Parliamentary Debates, 23 September 1997, p. 6741.
  15. Explanatory Memorandum, para 28.

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