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Defence Legislation Amendment Bill (No. 1) 2010

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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

5.         This item provides that Schedule 2 commences on the day this Act receives Royal Assent. 

 

6.         This item provides that Schedule 3 commences on the 28 th day after the Act receives Royal Assent. 

 

7.         This item provides that Schedule 4 commences on the 28 th day after the Act receives Royal Assent.

 

8.         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 (2 nd 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

D efence 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