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Defence Legislation Amendment Bill 2003

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2002-2003

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

DEFENCE LEGISLATION AMENDMENT

BILL 2003

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Minister for Veterans’ Affairs and Minister Assisting the Minister for Defence, the Honourable Danna Vale)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DEFENCE LEGISLATION AMENDMENT BILL 2003

 

 

OUTLINE

 

The Bill proposes to:

 

·         implement recommendations made by Brigadier A.R. Abadee, Deputy Judge Advocate General, in his 1997 report in relation to the military discipline system and to implement the findings of an internal review of the military discipline system carried out subsequent to the Abadee Report. 

 

·         make various amendments to the Defence Force Discipline Act (DFD Act) that will continue the process of harmonising the offence provisions contained in the DFD Act with the general principles of criminal  responsibility as codified by Chapter 2 of the Criminal Code Act 1995 (the Criminal Code);

 

·         make amendments to modernise the titles of the Cadet Corps;

 

·         increase the penalties for breaches of sections 80A and 80B of the Defence Act 1903 , relating to persons who falsely represent themselves to be returned servicemen or improperly use service decorations;

 

·         ensure that the regulation-making provision in the Defence Act dealing with inquiries specifically covers inquiry assistants, and ensure that the Defence Act will enable regulations to deal with the issue of self-incrimination by witnesses when questioned as part of a Defence inquiry so that those statements cannot be used against the witness otherwise than in proceedings by way of a prosecution for giving false testimony;

 

·         make amendments to the Defence Force (Home Loans Assistance) Act 1990 to permit certain classes of ex-members of the Australian Defence Force to apply for a home loan subsidy beyond the current 2 year period in particular circumstances;

 

·         correct an error in the commencement date to the Defence Legislation Amendment (Application of Criminal Code) Act 2001 ;  and

 

·         correct a typographical error in the Defence Reserve Service (Protection) Act 2001 .

 

 

FINANCIAL IMPACT

 

The only financial impact is the extension of the eligibility to access the Defence Force Home Loans Assistance Scheme.  This extension is expected to cost an additional $79,000 per year, which will be absorbed from the administrative component of Departmental funding.  The remaining amendments in the Bill have no financial impact.

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.         This clause provides for the Act, when enacted, to be cited as the Defence Legislation Amendment Act 2003 .

 

Clause 2 - Commencement

 

2.                   This clause provides for the commencement of the Act.

 

Clause 3 - Schedule(s)

 

3.         This clause provides that the Acts and Regulations mentioned in the Schedules are amended according to the applicable items of the Schedules.

 

Schedule 1 - Amendment of the Defence Force Discipline Act 1982

 

 

Item 1 inserts a new definition of a “competent reviewing authority” into the DFD Act and provides that the term is defined by new section 150A.

 

Item 2 changes the description of the assault offence provision in section 34 into more appropriate and relevant military terminology by changing the heading of the section from “Assaulting an inferior” to “Assaulting a subordinate” and amending paragraph 34(1)(b) by substituting the word “subordinate” for “inferior”.

 

Item 3 changes subsection 34(3) in a similar manner to Item 2 by substituting the word “subordinate” for “inferior”.

 

Item 4 repeals section 35 of the DFD Act and substitutes a new section 35 which reformulates the offence.  The new formulation clarifies the operation of the fault element of “negligence” with respect to the result of the conduct of the person performing the duty.  This amendment is necessary to eliminate the anomalous effect of the definition of “negligence” as defined in section 5.5 of the Criminal Code on the previous formulation of this offence.  The definition of “negligence” under the Criminal Code provides that a person is negligent with respect to a physical element of an offence (ie. his or her conduct) if his or her conduct involves:

 

·         such a great falling short of the standard of care that a reasonable person would exercise in the circumstances;  and

 

·         such a high risk that the physical element exists or will exist;

 

that the conduct merits criminal punishment.

 

The structure of the repealed offence is such that the relevant physical element is simply the conduct of the person performing the duty.  The conduct has already occurred so it does not make sense to assess it as existing or having a risk of existing . The new subsection 35(1) now operates consistently with the Criminal Code in that the fault element of “intention” applies to the physical element of conduct.  The fault element of “negligence” applies to the physical element of result of conduct, that is, the failure to perform the duty to the required standard.  Consequently, it is not intended that this offence should proscribe an act or omission that is the result of forgetfulness.

 

Subsection 11(2) of the DFD Act applies to the assessment of the fault element of “negligence” in relation to a member of the Defence Force.  Subsection 11(2) must be referred to when assessing “negligence” in the context of new paragraph 35(1)(c).

 

Item 5 repeals section 36A and substitutes two new separate offence provisions of sections 36A and 36B.

 

Section 36A currently contains the offences of both unauthorised discharge of a weapon and negligent discharge of a weapon.

 

New section 36A provides for the offence of unauthorised discharge of a weapon.  It is deconstructed into three subsections with subsection (a) relating to the physical element of conduct to which the default fault element of “intention” applies.  Subsection (b) relates to the result of conduct to which the default fault element of “recklessness” applies.  Subsection (c) relates to the physical element of circumstance to which the default fault element of “recklessness” applies.  The new section will only apply to offences where an intentional act has caused or contributed to the discharge of a weapon.

 

New section 36B provides for the offence of negligent discharge of a weapon.  The repealed subsection 36A(2) made it unclear as to whether the fault element of “intention” or the fault element of “negligence” applied to the physical element of conduct in the offence.  The amended provision now clarifies this by deconstructing the section into three subsections.  Subsection (a) relates to the physical element of conduct to which the default fault element of “intention” applies.  Subsection (b) relates to the result of conduct to which the fault element of “negligence” applies by virtue of subsection (c).  The provision will apply to offences where intentional conduct has occurred such as pulling a trigger of a weapon or throwing a weapon down, and such conduct causes or contributes to the discharge of the weapon in circumstances where the offender was “negligent” as to that discharge.  The surrounding circumstances of how the discharge occurred will be used to prove the negligence.  Such circumstances could include the fact that a magazine had been negligently left on a weapon when carrying out the “unload” procedure, or the failure to ensure the safety catch was “safe”.

 

Item 6 repeals section 40B of the DFD Act.  Section 40B provided for the offence of negligent conduct in driving.  After further analysis of this offence in light of Chapter 2 of the Criminal Code it has been determined that the second limb of the definition of “negligence” in section 5.5 of the Criminal Code, namely “such a high risk that the physical element exists or will exist” was meaningless in the context of the offence.  Since the relevant physical element was simply the “conduct” of the driver, it could not sensibly be said that there was a “risk” that that conduct would “exist” or not.  That conduct has already occurred.  It did not appear meaningful to describe conduct as “existing” or having a risk of “existing”.

 

Item 7 inserts a reference to the Crimes Act 1914 within section 72(1) to make the provision more meaningful.  At present there is no reference within the provision to the legislation to which the sections referred to in the provision relate.

 

Item 8 changes the heading of section 101C so that it more closely reflects the content of the section and amends subsection 101C(2) to remove reference to repealed provisions.  Sections 101C and 101D of the DFD Act provide for the investigation of service offences and the requirement to caution a person before they are questioned.  Certain subparagraphs in section 101D have been repealed, however, references to those subparagraphs in section 101C have not been removed.  The subsection now sets out the precise circumstances in which the caution is required and its content without reference to any other provision.

 

Item 9 inserts new subsections 101C(2A), 101C(2B) and 101C(2C).  These subsections include additional requirements for the cautioning and questioning of persons in custody that prescribe:

 

·         the giving of the caution in, or translating the caution into, a language in which the person being cautioned is able to communicate with reasonable fluency;

 

·         the requirement to tape record the giving of the caution and the person’s response, where this is practicable; and

 

·         that where tape recording of the caution does not occur,

 

·         the prosecution bears the burden of proving that it was not practicable.

 

Item 10 changes the heading of section 101D so that it more closely reflects the content of the section and makes a minor technical amendment to subparagraph 101D(4)(a) to clarify the ambit of the provision.

 

Item 11 inserts a reference to subsection 130(5) into subsection 103(1) to ensure that all provisions in relation to referral of charges to a convening authority are correctly referred to in subsection 103(1).  Subsection 103(1) of the DFD Act sets out the courses open to a convening authority when a charge has been referred to that convening authority under provisions in the DFD Act.  This subsection was amended in 1984 by the Defence Legislation Amendment Act 1984 (Act No. 164 of 1984) to make reference to paragraph 110(1)(d), subsection 129A(3), section 131A.  When this amendment was made the reference to subsection 130(5) of the DFD Act, which also allows a summary authority trying a charge to refer that charge to a convening authority, was inadvertently omitted.  The amendment to subsection 103(1) rectifies this omission.

 

Items 12, 13 and 14 add a note at the end of subsections 103(1), 103(2) and 103(4) referring to new subsection 129C(1) which provides that a charge referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General.

 

Item 15 adds a note at the end of subsection 103(6) referring to new subsection 129C(2) which provides that a charge or charges referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General.

 

Item 16 inserts additional subsections in section 103 to allow the referral of a charge from one convening authority to another in certain circumstances.  There is currently no provision in the DFD Act that allows one convening authority to refer a charge to another convening authority.  In certain circumstances this may be required in the interests of justice because of service exigencies or the need to maintain the independence of the convening process.  New subsections 103(8) and 103(9) now enable this to occur.

 

New subsection 103(10) addresses the situation where a convening authority does not have sufficient power to convene a general court martial when it may be appropriate.  The new subsection permits the referral of the charge to another convening authority who has such a power.

 

Item 17 repeals section 118. This section proscribed the appointment of biased officers or officers perceived to be biased, as members, reserve members or judge advocate of a court martial. There is no longer a need to retain this section is the question of bias is now covered in subsection 129B(2).

 

Items 18, 19 and 20 add a note at the end of subsection 119(1), section 123 and subsection 124(3) referring to new subsection 129B.  New subsection 129B provides that a convening authority must not appoint a member, reserve member, or judge advocate of a court martial unless the person has been appointed by the Judge Advocate General.

 

Item 21 adds a note at the end of subsection 127, which makes reference to the new subsection 196(2A).  This new subsection provides that a member of the judge advocates’ panel is appointed for a maximum period of 3 years but is eligible for reappointment.

 

Item 22 adds a note at the end of subsection 129A(4) referring to new section 129C which provides that a charge referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General.

 

Item 23 adds new Division 5 at the end of Part VII of the DFD Act.  Division 5 deals with the nomination of Defence Force magistrates and members of courts martial by the Judge Advocate General.

 

The previous arrangements under the DFD Act were that convening authorities appoint the President, judge advocate and members of a court martial.  The new arrangements introduced by Division 5 provide that the President and members of a court martial should be drawn from outside the accused’s unit, and subject to the exigencies of service, from outside the convening authority’s command.   The selection of these positions should occur independently of the convening authority.  This Item inserts a new section 129B into the DFD Act which provides for the Judge Advocate General rather than a convening authority to appoint the President, a judge advocate and the members or reserve members of a court martial.

 

At present, convening authorities also appoint Defence Force magistrates to try charges.  The Item also inserts new section 129C which provides for the Judge Advocate General to nominate the Defence Force magistrate to try the charge(s) and provides that convening authorities may only refer a charge to the Defence Force magistrate nominated by the Judge Advocate General.

 

Item 24 inserts new section 150A at the end of Division 1 of Part IX of the DFD Act.  Part IX sets out the procedure for the review of proceedings of service tribunals.  In all cases, proceedings that have resulted in a conviction must be automatically reviewed as soon as possible after the conviction has been recorded.  In addition, a convicted person may lodge a petition for review within 90 days of a conviction.  A further application for review may be made to a service chief if it appears to the service chief that there are sufficient grounds to justify a review.  In respect of all convictions, except those by the lowest level of summary authority, a reviewing authority (which includes the service chiefs) must obtain a legal report of the proceedings before conducting a review.  This report is binding on reviewing authorities on questions of law.

 

Some difficulties have been experienced in relation to the sequence of review under Part IX.  Previously, a convicted person was required to lodge a petition for review within 90 days of conviction despite the fact that it was not always possible to complete an automatic review of the proceedings within that period of time.  In those circumstances, if the convicted person wished to lodge a petition for review, he or she was compelled to do so before the automatic review was completed.  This was impractical because the automatic review often addressed the issues that formed the basis of the member’s petition. 

 

This issue has been addressed by making an amendment to allow a convicted person to lodge an application for review under Part IX within 30 days of an automatic review being completed.  The convicted person is still able to lodge a petition before an automatic review has been conducted if he or she chooses to do so.  The compulsion to lodge a petition where automatic review has not been conducted within 90 days is removed. 

 

The amendments at this Item and Items 25, 26, 27, 28, 29 and 30 concern the review process.

 

The new section 150A defines a “competent reviewing authority” for the purposes of reviewing the proceedings of a service tribunal.  This section will restrict a reviewing authority from reviewing court martial proceedings it has convened, or proceedings conducted by a Defence Force magistrate that it has referred a charge to.  Consequently, a “competent reviewing authority” is an authority who has had no involvement in convening the proceedings under review.  The purpose of the amendment was to ensure the impartiality of the reviewing authority.

 

Item 25 inserts new subsection 151(6) into the section dealing with preliminary automatic review by a commanding officer.  The new subsection provides that where the legal officer does not transmit the report under section 154 requested by the commanding officer in subsection 151(3) and the record of proceedings in accordance with subsection 151(5), the commanding officer must give written notice of the results of the review to the person who was convicted of the service offence.

 

Item 26 makes a consequential amendment to subsection 152(1) of the DFD Act as a result of the insertion of the new definition of a “competent reviewing authority”.

 

Item 27 inserts a new subsection 152(3) which provides that a reviewing authority must give written notice of the results of the review to the person who was convicted of the service offence or to the person in relation to whom a direction under subsections 145(2) or (5) was given. 

 

Item 28 amends subsection 153(1) to remove the requirement that a petition for review be lodged within a 90-day period.

 

Item 29 inserts new subsections 153(1A) and 153(1B) which provide for lodgement of a petition within 30 days after completion of the automatic review process.  The new subsection 153(1A) enables a person to lodge a petition within 30 days after receiving notice of the results of the review by the reviewing authority pursuant to new subsection 152(3) or alternatively, after receiving notice of the results by the commanding officer pursuant to new subsection 151(6).  The new subsection 153(1B) makes provision for a reviewing authority to extend the 30 day period for lodgement of the petition for review.

 

Item 30 makes a consequential amendment to subsection 153(2) of the DFD Act as a result of the insertion of the new definition of “competent reviewing authority”.

 

Item 31 inserts new subsections 154(1A) and 154(1B) to provide for fixed 3 year terms of appointment for persons appointed as legal officers to conduct reviews for the purposes of paragraph 154(1)(a) of the DFD Act, with provision for reappointment for a further period or periods.  Judge Advocates, Defence Force magistrates and “section 154 reporting officers” were previously not subject to a fixed term of appointment. T heir appointments were open-ended and the holder of an appointment fulfilled that role until their instrument of appointment was withdrawn or until the appointee retired.

 

Item 32 amends subsection 155(1) of the DFD Act to omit “Chief of Staff” and substitute “Chief of the Defence Force or the service chief”. Subsections 155(1), 155(2) and 196(2) of the DFD Act make reference to “Chief of Staff”.  These references were inserted into the DFD Act by the Defence Legislation Amendment Act 1995 (Act No. 43 of 1995) which contained amendments to remove gender specific language in all Defence legislation including the DFD Act.  The Defence Legislation Amendment Act (No. 1) 1997 (Act No. 1 of 1997) contained amendments to subsections 155(1), 155(2) and 196(2) (among others) to replace references to “Chief of Staff” with “service chief” which is now the accepted terminology within Defence.  Despite this action, the amendments to replace the term Chief of Staff did not take effect.  Item 32 corrects this position in subsection 155(1).

 

Item 33 amends subsection 155(2) to omit reference to “Chief of Staff” and substitute “Chief of the Defence Force or the service chief”.

 

Item 34 inserts the definition of “officer cadet” into section 169A of the DFD Act.  It includes a defence member who holds the rank of midshipman in the Navy and officer cadet in the Army or Air Force.  The purpose of this definition provision is to extend the jurisdiction of the discipline officer scheme to include “officer cadets” in addition to defence members below non-commissioned rank.  The discipline officer scheme in Part IXA of the DFD Act is an administrative process designed to deal with disciplinary infringements.

 

Items 35 and 36 make consequential amendments to subsections 169C and 169D(1) relating to the extension of the discipline officer scheme.

 

Item 37 makes a technical amendment to subsection 169F(2) to substitute the word “penalty” with “punishment”.

 

Item 38 inserts a new section 169FA after section 169F of the DFD Act .  There was previously no provision specifying when a punishment imposed by a discipline officer took effect.  Consequently, it was assumed that any punishment imposed by a discipline officer should take effect immediately.  However, section 171 of the DFD Act provides that a summary authority may impose a punishment to take effect on a specified date, but no later than 14 days after the date on which it was imposed.  The effect of this is that the punishment may be delayed for 14 days.  The new section 169FA provides, in a similar vein to section 171, that a discipline officer may impose a punishment to take effect immediately or to take effect on a specified day, but no later than 14 days after the day on which the punishment is imposed.

 

Item 39 repeals the heading to Part XI and substitutes a new heading to include reference to the Chief Judge Advocate.

 

Item 40 adds a new division at the end of Part XI.  The new Division 2 provides for the establishment of a statutory position of Chief Judge Advocate, who will administratively assist the Judge Advocate General in such of his or her powers that he or she delegates to the Chief Judge Advocate. 

 

The new section 188A provides that the Judge Advocate General may appoint an officer to be the Chief Judge Advocate for a period not exceeding 3 years.  Subsection 188A(3) provides that the appointment may be extended for a further period or periods.

 

The new section 188B sets out the role of the Chief Judge Advocate and provides that the Judge Advocate General may delegate all or any of his or her powers to the Chief Judge Advocate.  This delegation power is limited by subparagraphs 188B(3)(a), (b) and (c).

 

The new sections 188C and 188D set out the eligibility requirements and procedure for resignation of the Chief Judge Advocate.

 

One of the eligibility requirements for the Chief Judge Advocate included in the new section 188C is that he or she must be a member of the judge advocates’ panel under section 196 of the DFD Act.  Officers are appointed to the judge advocates’ panel by the Chief of the Defence Force or a service chief after being nominated by the Judge Advocate General. 

 

Items 41, 42, 43 and 44 relate to the decision of the High Court in Re Tracey: ex parte Ryan (1989) 166 CLR 518 concerning subsections 190(3) and 190(5) of the DFD Act. Although affirming the jurisdiction of service tribunals under the DFD Act, it declared that provisions 190(3) and (5) were invalid.  These provisions addressed the issue of double jeopardy and were intended to protect an individual from prosecution by both a civil court and a service tribunal.  Specifically the subsections sought to protect individuals who had been acquitted or convicted of service offences (or who have had service offences considered in relation to a service offence conviction) from being tried by a civil court for a civil court offence that is substantially the same.

 

Item 45 amends subsection 196(2) to omit “Chief of Staff” and substitutes “Chief of the Defence Force or the service chief”.

 

Item 46 inserts subsections 196(2A) and 196(2B) which provide that appointment to the judge advocate’s panel will be for a period of 3 years with provision for reappointment.

 

Item 47 repeals the table Item in relation to “Any other subordinate summary authority” Table C of Schedule 3 and substitutes a new table item.  The new table item is required to bring the punishments into line with the scale of punishments in section 68 of the DFD Act.  It also makes it clear that commanding officers and executive officers of ships and naval establishments have the power to impose punishment on soldiers and airmen, as well as the power to try soldiers and airmen under subsection 108(2).

 

Item 48 provides that amendments made by Items 21, 31 and 46 will only apply to appointments made after the commencement of the DFD Act.

 

 

Schedule 2 - Amendment of other Acts

 

The amendments in Schedule 2 are described on a subject by subject basis.

 

Amendments relating to changes in name of Cadet Corps

 

On 8 December 2000, the Government released Cadets:  The Future , a strategic plan for the Australian Cadet Services Scheme, which comprises the Naval Reserve Cadets, the Australian Army Cadet Corps and the Air Training Corps.

 

Amongst other things, the Report recommended contemporary terms be used to described the training corps for each service as follows:

 

  • the Naval Reserve Cadets was to become the Australian Navy Cadets; and

 

  • the Australian Army Cadet Corps was to become the Australian Army Cadets; and

 

  • the Air Training Corps was to become the Australian Air Force Cadets.

 

The Government agreed with this recommendation.  Amendments to the relevant legislation will give effect to the change of name as follows:

 

Items 1-7 amend section 8 of the Air Force Act 1923 to give effect to the new name of the Air Training Corps (which is now referred to as the Australian Air Force Cadets).

 

Item 8 is a transitional provision made for the purposes of the Air Force Act to make clear that despite the changes in name, appointments to the Corps continue.

 

Items 9-11 make consequential amendments to the cadet force references in the Archives Act 1983 .

 

Items 12-15 and 20 amend various provisions in the Defence Act to give effect to the new references to the cadet forces.  (In the case of the Australian Army Cadet Corps, it will now be referred to in the provisions as the Australian Army Cadets).

 

Item 25 is a transitional provision made for the purposes of Defence Act to make clear that despite the changes in name, appointments to the Australian Army Cadet Corps continue.

 

Items 30-32 make consequential amendments to the cadet force references in the Freedom of Information Act 1982 .

 

Items 33-37 amend various provisions of the Naval Defence Act 1910 to give effect to the new name of the Naval Reserve Cadets (which is now referred to as the Australian Navy Cadets).

 

Item 38 is a transitional provision made for the purposes of the Naval Defence Act to make clear that despite the changes in name, appointments to the Corps continue.

 

Items 39-42 make consequential amendments to the cadet force references in the Privacy Act 1988 and the Safety , Rehabilitation and Compensation Act 1988 .

 

These provisions will commence on a day to be proclaimed, or alternatively 6 months after the Bill receives Royal Assent.  This is to allow other Regulations that have references to the old names to be identified and changed. (See Clause 2 of the Bill.)

 

Amendments relating to offences of impersonating a returned soldier, sailor or airman, and the misuse of Service decorations

 

The Bill contains provisions that will increase the maximum penalties for section 80A of the Defence Act (which makes it an offence for a person to falsely represent himself or herself to be a returned soldier, sailor or airman) and section 80B of the Defence Act (which creates 3 offences dealing with the improper use of service decorations).  The section 80B offences cover the situations of a person:

 

·         other than a family representative, wearing a service decoration that has not been conferred on that person;

 

·         falsely representing him-or-herself as a person on whom a service decoration has been conferred; and

 

·         defacing or destroying a service decoration.

 

At present, the current maximum penalty for contravening section 80A is a fine of $200, or 6 months imprisonment, while the current maximum penalty for contravening an offence under section 80B is a fine of $200.

 

The provisions are now being amended to increase the penalties in order to:

 

·         better reflect the gravity of these offences;

 

·         preserve the integrity of the medal awards system;  and

 

·         deter behaviour such as representing oneself as a returned soldier, sailor or airman.

 

With the exception of the offence of defacing or destroying a service decoration in subsection 80B (5), the amendments will increase the penalties in these sections to 30 penalty units (currently $3300 under the Criminal Code) or 6 months imprisonment.  In the case of the offence of defacing or destroying a service decoration in subsection 80B (5), the amendments will increase the penalty to 60 penalty units (currently $6600) or 12 months imprisonment.

 

Items 16-18 make the changes to give effect to the 30 penalty units or 6 months imprisonment.

 

Item 19 gives effect to the change for the offence of defacing or destroying a service decoration in subsection 80B (5).

 

These items will commence 28 days after the day the Bill receives the Royal Assent. (see clause 2 of the Bill.)

 

Amendments relating to Defence Inquiries

 

Paragraph 124(1)(gc) of the Defence Act allows for the Governor-General to make regulations for the appointment, procedures and powers of courts of inquiry, boards of inquiry and investigating officers.  The Defence (Inquiry) Regulations 1985 set out the detail as to how inquiries operate.  The Defence (Inquiry) Amendment Regulations 2000 (No.1) (S/R 2000 No.327), created, amongst other things, the concept of an “inquiry assistant”.

 

These amendments make it clear that regulations can be made to create the position of inquiry assistant.  Item 21 makes the necessary change to paragraph 124(1)(gc).

 

Subsections 124(2A) and (2B) of the Defence Act 1903 enable the making of regulations dealing with questions that can be put to witnesses.  Subsection 124(2C) of the Defence Act 1903 deals with the admissibility in evidence of statements made by a witness.  These provisions currently do not extend to circumstances where information is provided to an investigating officer or an inquiry assistant.  The amendments made by Items 22-24 extend these provisions to inquiries by investigating officers and inquiry assistants.

 

These amendments commence on Royal Assent. (See clause 2 of the Bill.)

 

Amendments relating to the Defence Home Owners Scheme

 

The Defence Force (Home Loans Assistance) Act 1990 establishes the Defence Home Owner Scheme, which provides subsidised home loan interest payments to serving and ex-members of the Australian Defence Forces.  The Act provides that having completed the necessary qualifying service, members may apply for the loan subsidy at any time during service.  Ex-members must apply within 2 years of service.  This is because the Scheme’s primary focus is to support the serving member.  Whilst it aims to assist in the resettlement of ex-members, it does not intend, nor purport to provide, indefinite and ongoing support to veterans.  This is reflected in the 2 year limit on the right to ex-members to apply for a subsidy.

 

However, the Government has agreed to a request from the Ombudsman to relax the 2 year limit on applying for a subsidy where someone is discharged from the Defence Forces as a result of a physical or mental condition that may prevent or inhibit their capacity for, or interest in, home ownership in the 2 years immediately after discharge.

 

Item 26 adds a paragraph 3(ba) to the Defence Force (Home Loans Assistance) Act to make this decision (Item 27 refers) reviewable on merit in the Administrative Appeals Tribunal.

 

Item 27 adds subsection 4(1A) and 4(1B) to the Defence Force (Home Loans Assistance) Act to permit the Secretary to the Department of Defence to make a determination that a person continues to be eligible notwithstanding the 2 year limit.  This determination can be made when there has been a written application from an incapacitated person; and the Secretary is satisfied that the compensable disability that caused the person’s discharge also either caused or contributed to the person’s failure to apply for a subsidy within the usual 2 year period.  This will allow the person to claim subsidy.

 

These provisions will commence on Royal Assent. (See clause 2 of the Bill.)

 

Amendments to clarify the commencement date of the Defence Legislation Amendment (Application of Criminal Code) Act 2001

 

The Defence Legislation Amendment (Application of Criminal Code) Act 2001 (the 2001 Act) amends a number of Acts so that criminal provisions contained within the legislation are drawn in a form compatible with the Criminal Code.

 

Item 28 is a clarification amendment that makes it clear that the 2001 Act commenced operation on 15 December 2001.

 

Clause 2 of the Bill ensures that the amendment in Item 28 is taken to be made immediately after the commencement of section 2 of the Defence Legislation Amendment (Application of Criminal Code) Act.  Related regulation amendments are contained in Schedule 3.

 

Correction of typographical error

 

Item 29 corrects an incorrect reference to subsection 32A(4), made in subsection 12(1) of the Defence Reserve Service (Protection) Act 2001 , with a reference to subsection 32A(3).  Clause 2 of the Bill ensures that the amendment commences immediately after the original commencement of the Defence Reserve Service (Protection) Act.

 

 

Schedule 3 - Amendment of Regulations

 

Items 1 and 2 have the effect of amending the commencement dates of the Defence Legislation  (Application of Criminal Code) Regulations (No.1) 2001 and Defence Legislation Amendment (Application of Criminal Code) Regulations  (No.2) 2001 to make it clear that they commence operation on 15 December 2001.  These Regulations were made so they commenced at the same time as the Defence Legislation Amendment (Application of Criminal Code) Act 2001 .  To remove any ambiguity, the Bill confirms that these Regulations commenced operation on 15 December 2001.  (Clause 2 of the Bill ensures that these Items commence on the dates the two Regulations were gazetted.)