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Defence Legislation Amendment (First Principles) Bill 2015

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2013-2014-2015

 

 

 

the parliament of the commonwealth of australia

 

 

 

SENATE

 

 

Defence Legislation Amendment (First PRINCIPLES) bill 2015

 

 

 

explanatory memorandum

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Defence, Senator the Hon Marise Payne)

 

 

 

Defence Legislation Amendment (First Principles) bill 2015

general outline

The report ( First Principles Review - Creating One Defence ) of the Committee that recently undertook the First Principles Review of Defence made 76 recommendations that it considered would make Defence the most effective and efficient organisation to enable it to deliver the outcomes desired of it by the Government. 

2.             To this end, the Committee recommended that Defence evolves into a single integrated system by becoming one end-to-end organisation - One Defence - effectively, incorporating the separate arms of the Services established under separate legislation into one organisation, the Australian Defence Force (ADF).

3.             The Committee also recommended that the individual and shared accountabilities of the Secretary and Chief of the Defence Force (CDF) be clarified, formally documented and promulgated throughout the organisation.  Recommendation 1.8 was that legislative change be made to formally recognise the authority of the CDF and the Vice Chief of the Defence Force (VCDF).  That recommendation also included removing the statutory authority of the Service Chiefs (that is, the Chiefs of Navy, Army and Air Force).

Current arrangements

4.             When considering the One Defence construct, the Committee recommended that the diarchy be retained.  The diarchy is the term used to describe the dual leadership of the Australian Defence Organisation by the Secretary of the Department of Defence and the Chief of the Defence Force, enacted through legislation and subject to ministerial direction.  In this regard, the Committee said:

The diarchy is an unusual leadership construct that does not necessarily align with our first principles of clear authorities, accountabilities and simplicity. However, given the dual nature of the Defence organisation, which requires both military and public sector expertise, we recommend the diarchy be retained .

The diarchy maximises the value of public sector and military culture, skills and experience. It also provides the contestability of advice to Government which is required given Defence’s two key outputs of joint warfighting and policy advice.

5.             The current command arrangements for the ADF are set out in the Defence Act 1903 (the Act) and the Defence Force Regulations 1952 (the Regulations) and essentially date from the reorganisation of Defence between 1973 and 1976 when the Departments of the Navy, Army and Air Force were integrated into one Department (Defence) and structural changes were made to the higher management of the ADF.  The separate legislative arrangements (that is, the Naval Defence Act 1910 , the Act and the Air Force Act 1923 ) dealing with each arm of the ADF continued in existence.

6.             Part II of the Act provides for the Minister to have the general control and administration of the ADF.  The Part also provides that the individual command powers vested in the CDF and the Service Chiefs (who, under the CDF, command their respective arm of the ADF) and the joint administrative powers vested in the CDF and the Secretary are to be exercised subject to any directions of the Minister.  The VCDF has no explicit command authority under the Act.

7.             While the Secretary of Defence has joint responsibility with the CDF for the administration of the ADF, the Secretary is also an Agency Head for the purposes of the Public Service Act 1999 and has administrative and other responsibilities under that legislation and the Public Governance, Performance and Accountability Act 2013

8.             Subsection 9(1) of the Act provides for the appointment by the Governor-General of an officer of an arm of the ADF as the CDF (usually on the recommendation of the Minister/Prime Minister).  The subsection also provides for the Governor-General to appoint an officer from each arm of the ADF to be the Chief of their respective arm (usually on the recommendation of the Minister).  Subsection 9(2) gives the CDF command of the ADF and each Service Chief command (under the CDF) of their respective Service.

9.             The administration of the Defence Force is regulated by a series of policy and procedural instruments, which include Defence Instructions (General), currently provided for by section 9A of the Act.  Defence Instructions (General) support the Secretary and the CDF in jointly administering the ADF (the diarchy) .  In addition, Chiefs of Service can issue individual instructions in relation to the administration of their particular arm of the ADF, known as Defence Instructions (Navy) or (Army) or (Air Force) as necessary.

10.         With the exception of matters of command and any other matter specified by the Minister, the Defence Act 1903 does not limit the content of Defence Instructions (General). Defence Instructions (General) prevail over individual service instructions where there is inconsistency

11.         Defence Instructions (General) are usually general orders for the purposes of the Defence Force Discipline Act 1982 .  The contents of Defence Instructions (General) can also constitute directions to Defence Australian Public Service (APS) employees for the purpose of subsection 13(5) of the Public Service Act 1999 (subsection 13(5) forms part of the Australian Public Service Code of Conduct) when the Secretary specifies that this is the case.

12.         Section 9AA provides for the Governor-General to appoint an officer of an arm of the ADF to be the VCDF, but does not provide the VCDF with any command authority, only a role to assist the CDF in the administration of the ADF.

13.         Section 30 of the Act provides for the constitution of the ADF; the Australian Navy, the Australian Army and the Australian Air Force.  Sections 19 to 21 of the Naval Defence Act 1910 , sections 31 to 32A of the Act and sections 4A to 4C of the Air Force Act 1923 provide for the Permanent Navy and Naval Reserves, the Regular Army and Army Reserves and the Permanent Air Force and the Air Force Reserves respectively.

14.         The Committee recognised that the Act does not, on its face, give the CDF full command over the ADF.  Further, it was suggested the CDF’s powers may be interpreted as being subject to (and potentially constrained by) the authority of the Service Chiefs to command their respective arm of the ADF.  Further, the Act does not, on its face, fully reflect the current practice of having the VCDF perform the functions of a true ‘deputy’ CDF. 

15.         The uncertainty over the scope of the CDF’s command power is compounded by other provisions, including paragraph 124(1)(qd) of the Act and regulation 4 of the Regulations, which give effect to the power to make regulations for and in relation to the command, control and administration of bodies made up of 2 or more arms of the ADF acting together or of a part of the ADF consisting of members of 2 or more arms of the ADF.

16.         The various provisions of the Act providing for the command of the individual arms of the ADF and the overall ADF, when taken together, run the risk of being perceived as creating uncertainty in relation to command arrangements.  Advice from the Australian Government Solicitor (AGS) since the early 1990s has confirmed that there are potential technical problems with the current command arrangements.

Proposed arrangements  

17.         The Bill continues the diarchy in line with the Committee’s recommendation and implements recommendation 1.8 of the First Principles Review (it also addresses recommendation 3.10 which was that geospatial information functions be consolidated into the Australian Geospatial-Intelligence Organisation following improved resourcing and connectivity ).  This has been achieved by some minor changes to the Navigation Act 2012 (see items 66 and 67 Schedule 2). 

18.         In broad terms, the Bill will give full command of the ADF, which is made up of the Navy, Army and Air Force, to the CDF by removing legislative limitations in the Act, recognise the VCDF as the deputy of the CDF and provide for the Service Chiefs (who will constitute part of their respective arm of the ADF) to be subject to the direction of the CDF.  The Bill also provides for the repeal of the Naval Defence Act 1910 and the Air Force Act 1923 and the inclusion of relevant provisions of those Acts into the Defence Act 1903 .

19.         As a result of these changes, the CDF, as sole commander of the ADF, will be able to make standing or general orders or give directions to put in place the appropriate arrangements for command, control and administration of the ADF. This includes where members of the different arms of the ADF are working or acting together .

20.         Specifically, the Bill puts the recommendation of the Committee in relation to command and control into practice by:

a)       retaining the Governor-General’s role in appointing the CDF and continuing to acknowledge the Governor-General’s titular role under section 68 of the Constitution;

b)       providing for the Minister to have the general control and administration of the ADF;

c)       retaining the diarchy by preserving the role of the Secretary and CDF as joint administrators of the ADF (subject to any directions of the Minister);

d)      giving CDF full command of the ADF (subject to any directions of the Minister) by removing legislative limitations on the CDF’s command/control power;

e)       explicitly recognising the VCDF as a true Deputy of CDF and ensuring the VCDF has command and administrative responsibilities subject to the direction of CDF;

f)        repealing the provisions in Part II of the Act providing for the offices and appointments of the Service Chiefs (the Service Chiefs will be recognised in Part III of the Act as distinct components of their particular arm of the ADF and the regulations will provide for their appointment, resignation and termination by the Governor-General.  The Service Chiefs will no longer have a statutory role to either advise Ministers in the Defence portfolio on single Service matters or to issue single Service Defence Instructions under their own name although the CDF may provide directions to, or authorise, Service Chiefs, as specialists in their respective domains, to continue to provide advice to Ministers as a normal function of their duties or to issue orders in relation to their particular service);

g)       establishing One Defence by repealing both the Naval Defence Act 1910 and the Air Force Act 1923 and incorporating relevant provisions of these Acts into the Defence Act 1903 ; and

h)       amending other legislation as appropriate to replace references to:

-                 single Services with references to the ADF;

-                 the Naval Defence Act 1910 and the Air Force Act 1923 with references to the Defence Act 1903 ; and

-                 the VCDF and the Chiefs of Service with references to the CDF.

Financial Impact Statement

21.         The Act will have no financial impact.

 

Notes on clauses

Clause 1: Short title

22.         Clause 1 provides for the short title of the Act to be the Defence Legislation Amendment (First Principles) Act 2015 .

Clause 2: Commencement

23.         Clause 2 is the commencement provision for the Act and includes a table setting out the details of the commencement of sections of the Act.  Column 1 of the table sets out the provisions in numbered items, column 2 sets out the commencement and column 3 sets out date/details.  Information in column 3 does not form part of the Act, so information can subsequently be inserted in the column (or edited) in a published version of the Act.

24.         Item 1 in the table provides that sections 1 to 4 of the Act and anything in the Act not covered elsewhere in the table commences when the Act receives Royal Assent.

25.         Item 2 in the table provides that Schedules 1 to 3 commence immediately after the commencement of Schedule 2 of the Defence Legislation Amendment (Superannuation and ADF Cover) Act 2015, which will occur on 1 July 2016. As well as coordinating with the commencement of the new superannuation scheme for ADF members, this also allows sufficient time to prepare the considerable number of documents to implement the One Defence construct.   

26.         A note to the reader stipulates that the table only relates to the provisions originally enacted and will not be amended to reflect later amendments to the sections of the Act.

Clause 3: Schedules

27.         Clause 3 provides that amendments to, or repeal of, legislation contained in the Act are set out in the Schedules to the Act and any other item in a Schedule to the Act has effect according to its terms.

Clause 4: Regulations

28.         Clause 4 enables the Governor-General to make regulations prescribing transitional matters, including saving or application provisions, in relation to the amendments or repeals made by the Act.  This has been included as a “safety net” measure to provide the ability to address issues that may arise at a later time as a result of the amendments.    



MAIN AMENDMENTS

Schedule 1 - Amendments of the Defence Act 1903

Part 1 - Amendments

29.         The amendments to the Act set out in this Schedule reflect recommendation 1.8 of the First Principles Review - Creating One Defence report and are made to formally recognise the authority of the CDF and the VCDF and to remove the statutory authority of the Service Chiefs.  The amendments lock in the command authority of the CDF and explicitly recognise the VCDF as a true Deputy of the CDF and provide the VCDF with command and administrative responsibilities subject to the direction of the CDF.   

30.         Items 1 and 4 insert new definitions of terms and phrases into the Act.  The repeal of the Naval Defence Act 1910 and the Air Force Act 1923 (as set out in Schedule 3) and the inclusion of relevant provisions of those Acts into the Defence Act 1903 to create the One Defence construct has generated a need to incorporate definitions such as, Australian Defence Force or ADF or Defence Force , Australian Defence Force Cadets or ADF Cadets , Air Force or Royal Australian Air Force or RAAF and Navy or Royal Australian Navy or RAN .

31.         The new definitions and phrases generally refer readers to the substantive sections/subsections where those terms and phrases are set out in more detail.

32.         Item 2 removes a definition of non-commissioned officer as that term is not used elsewhere in the Act.

33.         Item 3 removes the current definition of officer and substitutes a new definition.  The new definition refers to persons appointed to a rank at items 1 to 12 set out in columns 1, 2 and 3 of the table being inserted by item 61. Chaplains are also officers even though they may not hold rank. Officers in the Cadets are not included in the definition because they are not members of the ADF. 

34.         Item 5 repeals subsection 4(2), the words of which are considered not necessary given that the Acts Interpretation Act 1901 provides that when interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.  Further, the amalgamation of relevant provisions of the Naval Defence Act 1910 and the Air Force Act 1923 into the Act and the repeal of those Acts and the One Defence construct being established by this Bill renders some of the references obsolete.

35.         Item 6 removes specific references to arms of the ADF in section 5 of the Act and replaces those references with a reference to the Defence Force in line with the One Defence construct being established by this Bill.

36.         Item 7 repeals Part II (sections 8 to 28) and Part III (sections 30 to 50E) of the Act and replaces those Parts with new Part II, under the heading Control and Administration (sections 8 to 16) and Part III, under the heading The Australian Defence Force (sections 17 to 29).

Part II - Control and Administration

Section 8 - The Minister

37.         New subsection 8(1) gives the Minister general control and administration of the ADF which is the same power that exists under the current section 8 of the Act.  A note to the subsection points to section 68 of the Constitution that vests the command in chief of the Defence Force in the Governor-General.

38.           New subsection 8(2) stipulates that the CDF and the Secretary must comply with any directions of the Minister when exercising their functions and powers under Part II.  As the changes to the command structure being put in place by this Bill does not vest any specific power in the Service Chiefs to command their arm of the ADF, the new subsection does not refer to the Service Chiefs (to reflect the One Defence construct) which are referred to in the current section 8 of the Act.

Section 9 - Command of the Defence Force

39.         New section 9 provides for the command of the ADF and replaces the current section 9 of the Act.  The new section confers the command of the ADF solely in the CDF (subsection 9(1)), who is responsible for advising the Minister in relation to the command of the ADF (subsection 9(2)). 

40.         Subsection 9(3) effectively establishes the VCDF as the Deputy of the CDF and requires VCDF to assist the CDF in his/her command role.  The VCDF must comply with any directions of the CDF as the Deputy to the CDF (subsection 9(4)).

Section 10 - Administration of the Defence Force

41.         New section 10 continues the diarchy by providing for the joint administration of the ADF by the CDF and the Secretary (subsection 10(1)).  Administration of the ADF specifically excludes any matter falling within the sole command authority of the CDF (paragraph 10(2)(a)) or any matter specified by the Minister (paragraph 10(2)(b)).  As with the Deputy role of assisting with command of the ADF, the VCDF is also required to assist the CDF in the administration of the ADF and in doing so, is subject to any directions of the CDF (subsection 10(3)).

42.         Subsection 10(4) provides that an instrument by the Minister under paragraph 10(2)(b) is not a legislative instrument.  This is because a matter specified by the Minister for the purposes of paragraph 10(2)(b) would be administrative in nature and would not be of a legislative nature (that is, it would not determine or alter the content of the law).

 

 

Section 11 - Defence Instructions

43.         New section 11 again supports the diarchy by providing for the issue of Defence Instructions (in lieu of Defence Instructions (General)) jointly by the CDF and Secretary for the good governance and administration of the ADF (subsection 11(1)).  Subsection 11(2) provides that a document purporting to be a Defence Instruction or a copy of a Defence Instruction is taken to be a Defence Instruction.  These instructions are intended to set out mandatory policy directives in relation to matters affecting the administration of the ADF. For example, they may prescribe or proscribe particular conduct; impose obligations, functions or duties; or confer powers, authority or rights. However, the intention is that they will not duplicate requirements that already exist in legislation.

44.         These instructions are binding on members of the ADF and, depending on the wording of the particular instruction, can lead to disciplinary action if they are not followed.   These Instructions may also apply to APS employees if relevant to their roles and responsibilities, and may lead to action under the Code of Conduct.

45.         Subsection 11(3) is included to assist in the administration of the ADF by providing flexibility for the CDF and Secretary to apply, adopt or incorporate into Defence Instructions provisions of other instructions, policies and the like with or without modification. 

46.         This provision is similar to current subsection 9A(6) and allows instruments that are not Acts or disallowable legislative instruments within the meaning of the Legislative Instruments Act 2003 to be incorporated into Defence Instructions as in force from time to time.  It provides the contrary intention for the purposes of section 46AA of the Acts Interpretation Act 1901 which would otherwise limit the prescribing of matters by reference to other instruments or other writings to those in force at a particular time.

47.         Defence Instructions are not legislative instrument (see section 7 of the Legislative Instruments Act 2003 ).

Section 12 - Appointments      

48.         New section 12 provides for the statutory appointment of the CDF by the Governor-General (usually on the recommendation of the Minister/Prime Minister).  The CDF is to be appointed from the officer ranks of an arm of the ADF (subsection 12(1)).  Subsection 12(2) provides for the statutory appointment of the VCDF from the officer ranks of an arm of the ADF.

49.         Both the CDF and VCDF hold those offices for the periods set out in the instrument of appointment (subsection 12(3)) and they can only hold those offices while they are officers of the ADF (subsection 12(4)).

 

 

Section 13 - Acting appointments

50.         New section 13 requires the VCDF to act as the CDF when there is a vacancy in that office or for any period in which the CDF is absent from duty or Australia or unable to perform the duties of the office for any reason (for example, medical or physical incapacity) (subsection 13(1)).

51.         Subsection 13(2) enables the Governor-General to appoint another officer of an arm of the ADF as the VCDF when there is a vacancy in that office or for any period in which the VCDF is absent from duty or Australia or unable to perform the duties of the office for any reason (for example, when the VCDF is acting as the CDF or is medically or physically incapacitated).

Section 14 - Resignation

52.         New section 14 provides for the CDF and the VCDF to be able to resign his or her appointment by giving written notice to the Governor-General (subsection 14(1)).  The resignation will take effect when the Governor-General accepts the resignation (subsection 14(2)).

Section 15 - Termination of Appointment

53.         New section 15 provides for the Governor-General to terminate the appointment of the CDF and VCDF by written notice.  However, the Governor-General can only terminate the appointment on the recommendation of the Prime Minister (subsection 15(1)).  The Prime Minister cannot make a recommendation terminating the appointment of either the CDF or the VCDF unless he/she has received a report about the proposed termination from the Minister for Defence (subsection 15(2)).

Section 16 - Remuneration and allowances

54.         The Remuneration Tribunal is to determine the remuneration of the CDF and the VCDF, but if no determination is in place, the CDF and the VCDF are to be paid the remuneration set by regulations (subsection 16(1)).  In addition to the remuneration determined by the Remuneration Tribunal, subsection 16(2) provides for the CDF and the VCDF to be paid allowances determined under Part IIIA (that is, allowances determined by the Minister under section 58B or by the Defence Force Remuneration Tribunal under section 58H - the Defence Force Remuneration Tribunal does not set the salary for the CDF or the VCDF).  Subclause 16(3) provides for this clause to have effect subject to the Remuneration Tribunal Act 1973 .

55.         A note to the section advises readers that the remuneration of the Service Chiefs is also set by the Remuneration Tribunal (because they are appointed under a law of the Commonwealth to a public office as defined in subsection 3(4) of the Remuneration Tribunal Act 1973 , read with subsection 7(3) of that Act).  The note also refers readers to the regulations for the appointment etc of Service Chiefs. 

 

Part III - The Australian Defence Force

Division 1 - Constitution of the Australian Defence Force

56.         Division 1 reflects the One Defence construct under the First Principles Review by establishing that the ADF is made up of the three arms that have previously been established separately under the Naval Defence Act 1910 , the Act and the Air Force Act 1923 .

Section 17 - The Australian Defence Force

57.         New section 17 provides that the ADF is made up of the Royal Australian Navy (RAN), the Australian Army and the Royal Australian Air Force (RAAF).  This new section reflects the One Defence construct by incorporating relevant provisions of the Naval Defence Act 1910 and the Air Force Act 1923 and the repeal of those Acts.

Section 18 - Royal Australian Navy

58.         New section 18 stipulates that the RAN consists of the Chief of Navy, the Permanent Navy and the Naval Reserve (subsection 18(1)).  Subsection 18(2) sets out the make up of the Permanent Navy (officers appointed to and sailors enlisted in the Permanent Navy and members of the ADF transferred to the Permanent Navy).  Subsection 18(3) sets out the make up of the Naval Reserve (officers appointed to and sailors enlisted in the Naval Reserve and members of the ADF transferred to the Naval Reserve).

Section 19 - Australian Army

59.          New section 19 stipulates that the Australian Army consists of the Chief of Army, the Regular Army and the Army Reserve (subsection 19(1)).  Subsection 19(2) sets out the make up of the Regular Army (officers appointed to and soldiers enlisted in the Regular Army and members of the ADF transferred to the Regular Army).  Subsection 19(3) sets out the make up of the Army Reserve (officers appointed to and sailors enlisted in the Army Reserve and members of the ADF transferred to the Army Reserve).

Section 20 - Royal Australian Air Force

60.         New section 20 stipulates that the RAAF consists of the Chief of Air Force, the Permanent Air Force and the Air Force Reserve (subsection 20(1)).  Subsection 20(2) sets out the make up of the Permanent Air Force (officers appointed to and airmen enlisted in the Permanent Air Force and members of the ADF transferred to the Permanent Air Force).  Subsection 20(3) sets out the make up of the Air Force Reserve (officers appointed to and sailors enlisted in the Air Force Reserve and members of the ADF transferred to the Air Force Reserve).

Section 21 - Ranks and corresponding ranks

61.         Section 21 provides that the ranks and corresponding ranks in the Navy, Army and Air Force (other than chaplains) are set out in new Schedule 1 of the Act (see item 61).  This gives further effect to the concept of a single organisation with an integrated command structure, albeit with different rank nomenclature.

Division 2 - Service in the Defence Force    

62.         In line with the One Defence construct, the incorporation of relevant sections of the Naval Defence Act 1910 and the Air Force Act 1923 into the Act and the repeal of those Acts, Division 2 provides for service in the ADF. 

63.         Section 33 of the Naval Defence Act 1910 , section 50C of the Act and section 4F of the Air Force Act 1923 , all of which deal with service of each arm of the ADF within or beyond the territorial limits of Australia, have not been incorporated into Part III.  This is because members of the ADF serve as directed in line with Government objectives.   

Section 22 - Voluntary entry

64.         New section 22 reflects section 24 of the Naval Defence Act 1910 , section 34 of the Act and section 4E of the Air Force Act 1923 .  Subsection 22(1) provides for the Services to be manned by volunteers who are accepted for service.  However, subsection 22(2) provides that subsection 22(1) is subject to the provisions of Part IV of the Act and to any other Act that may provide for a liability for persons to serve in the ADF in time of war.

Section 23 - Service in the Permanent Forces   

65.         New section 23 reflects section 31 of the Naval Defence Act 1910 , section 50 of the Act and section 4G of the Air Force Act 1923 .  Subsection 23(1) imposes an obligation on members of the Permanent Forces to render continuous full time service (subsection 23(1)).  A note to the subsection explains to readers that the term Permanent Forces refers to the Permanent Navy, the Regular Army and the Permanent Air Force each of which are defined in subsection 4(1).

66.         Subsection 23(2) provides for the flexible service arrangements that were recently introduced into the Naval Defence Act 1910 , the Act and the Air Force Act 1923 by Schedule 2 of the Defence Legislation Amendment (Superannuation and ADF Cover) Act 2015 .  Even though members of the Permanent Force are bound to render continuous full tome service, subsection 23(2) enables the CDF to determine in a flexible service determination , the hours or periods of duty for those members (or classes of members by virtue of subsections 33(3A) and (3AB) of the Acts Interpretation Act 1901 ). 

67.         When determining the hours or periods of duty for members of the Permanent Forces, the CDF will take into account operational and/or capability requirements.  It could well be that those operational and/or capability requirements may mean that the CDF will not make a determination for particular members or groups or classes of members of the Permanent Force.   

68.         A flexible service determination will provide greater flexibility for members of the Permanent Forces in line with contemporary community standards of employment and provide the ADF with more versatile patterns of service to support operational and/or capability requirements.  A determination may provide for a pattern of service which may enable members to attend for particular hours in a day, days in a week or for differing periods of time (for example, three months on and three months off) or a combination of these arrangements.

69.         The CDF cannot make a flexible service determination in relation to members of the Reserve Forces (that is, the Naval, Army or Air Force Reserve - each of which are defined in subsection 4(1)) as members of the Reserve are only bound to render continuous full time service when they voluntarily undertake to render that form of service and the undertaking is accepted (see section 26).

70.         It is not necessary to provide for flexible service arrangements for members of the Reserves (either for those who volunteer to serve on a continuous full time service basis or those who volunteer to serve other than on a continuous full time service basis). 

71.         The reason for this is that members of the Reserves can choose what type of service they may volunteer to render (for example, a member of the Reserves who wants to work flexibly can opt to work other than on a continuous full time service basis).  In addition, under the new Defence Total Workforce Model, members of the Reserves can access other flexible arrangements.       

72.         A flexible service determination must be in writing and may be revoked or varied by the CDF at any time (for example, because of operational and/or capability requirements).  A determination will have effect subject to any terms and conditions set out in the determination (subsection 23(3)). 

73.         In particular, a flexible service determination may include terms and conditions that relate to remuneration and allowances (for example, by explaining that the hours of duty are to be treated under the pro-rating arrangements set out in determinations of the Minister under section 58B or by the Defence Force Remuneration Tribunal under section 58H. This ensures payments reflect hours of duty actually undertaken under the terms of the flexible service arrangement) and provide for other relevant matters, including the potential for a member to be called for duty outside the hours or periods set out in the determination (subsection 23(4)).

74.         Subsection 23(5) provides that a flexible service determination is not a legislative instrument within the meaning of the Legislative Instruments Act 2003 .  This is because a flexible service determination is an instrument relating to the terms and conditions of the engagement of members of the Permanent Forces. 

 

 

Section 24 - Service in the Reserves

75.         New section 24 reflects section 32A of the Naval Defence Act 1910 , section 50 of the Act and section 4J of the Air Force Act 1923 .  Section 24 provides that a member of the Naval, Army or Air Force Reserves is not bound to render continuous full time service unless the member:

a)       is undertaking a period of training that requires continuous full time service; or

b)       has volunteered to render continuous full time service under new section 26 and that undertaking has been accepted; or

c)       is called out for continuous full time service by a call out order of the Governor-General under Division 3 of this Part or has a liability to serve in time of war (Division 1 of Part IV).

Section 25 - Training for Reserves

76.         New section 25 reflects the provisions of subsection 32A(2) of the Naval Defence Act 1910 , subsection 50(2) of the Act and section 4J(2) of the Air Force Act 1923 and requires members of the Reserves to render service during training periods in accordance with the regulations. 

Section 26 - Volunteer service by Reserves

77.         New section 26 reflects subsections 32(3) and 32(4) of the Naval Defence Act 1910 , subsections 50(3) and 50(4) of the Act and subsections 4J(3) and 4J(4) of the Air Force Act 1923 and provides for members of the Reserves to be able to volunteer for specified periods of continuous full time service (paragraph 26(1)(a) or service other than continuous full time service (paragraph 26(1)(b)).  The CDF can accept some or all of the service specified (subsection 26(2)) and if he/she does so, the Reservist is bound to render the service accepted by the CDF (subsection 26(3)).

Section 27 - Service is not a civil contract

78.         New section 27 is incorporated into the Act (previously, this was set out in regulation 117 of the Defence (Personnel) Regulations 2002 ) to reflect the longstanding common law position that neither the Crown nor the Commonwealth is contractually bound to persons it accepts into service.  In this regard, members of the ADF are not employees.

79.         Once a person is accepted for service in the ADF, he/she holds his/her position at the pleasure of the Crown and is subject to the obligations and conditions of service (for example, appointment, enlistment, promotion, transfer, posting and hours of duty of personnel) imposed by legislation, regulations, determinations and most importantly, command direction.

 

 

Division 3 - Calling out the Reserves

80.         New Division 3 reflects the existing Division 4 in the Act dealing with the calling out of the Reserves.

Section 28 - Governor-General may call out Reserves  

81.         New subsection 28(1) modernises the language of current subsection 50D(1) and provides the Governor-General may call out some or all of the Reserves for continuous full time service.  Subsection 28(2) is added to provide that a call out order under subsection 28(1) is not a legislative instrument.  This subsection is included to assist readers as the call out order is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 , because it is not of a legislative character.

82.         Other than some minor changes to headings, new subsections 28(3), 28(4), 28(5), 28(6), 28(7) and 28(8) are in the same terms as current subsections 50D(2), 50D(3), 50D(4), 50D(5), 50D(6) and 50D(7) respectively.

Section 29 - Period of service during call out

83.         New section 29 deals with the period of service for members of the Reserves who are called out under a call out order.  The section reflects the arrangements under current section 50E, but is changed because of the new control and administration arrangements being established under Part II of the Act and the repeal of the Naval Defence Act 1910 and the Air Force Act 1923 .  There are also some minor changes to the headings.

84.         New subsection 29(1) provides that members of the Reserves who are called out are bound to render continuous full time service for the period specified in writing by the CDF.  Subsection 29(2) is in similar terms to current subsection 50E(3) and provides that the period of service specified by the CDF under subsection 29(1) must start on the day on which the Governor-General’s call out order takes effect (paragraph 29(1)(a)) and may be for an indefinite or limited period (paragraph 29(1)(b)).

85.         Subsection 29(3) provides for the ultimate ending of the period of continuous full time service under a call out order.  Effectively, the period of continuous full time service ends on the day on which the call out ends irrespective of any specification by the CDF under subsection 29(1), although it may end earlier.

86.         Subsection 29(4) mirrors current subsection 50E(5) and provides that the CDF can specify further periods of continuous full time service while a call out order is in effect.

87.         Subsection 29(5) reflects current subsection 50E(6) and ensures that section 29 does not operate to limit the obligation of a member of the Reserves to render continuous full time service under another section of the Act (for example, section 26).

88.         Item 8 removes an obsolete reference to the “Emergency Forces” in subsections 51A(2), 51B(2) and 51C(2).

89.         Items 9, 13 and 20 remove references to the Naval Defence Act 1910 and the Air Force Act 1923 from paragraph 52(2)(a), subsection 58B(1) and subsection 58H(14) respectively, as these Acts are being repealed as part of the One Defence construct (see Schedule 3).

90.         Item 10 omits a reference to the Governance of Australian Government Superannuation Schemes Act 2011 when referring to CSC (the Commonwealth Superannuation Scheme) in section 53 because a definition of CSC is now included at subsection 4(1).

Part IIIA—Remuneration, allowances and other benefits

91.         Currently, Part IIIA of the Act deals with the determination of remuneration, allowances and other benefits for ADF members, cadets and the families of members and cadets.  In addition to the amendments being effected by the First Principles recommendation, changes are being made to the administration arrangements for ADF Cadets, who are not members of the ADF (see item 22) and these require some additional changes to remove references to cadets and their families in Part IIIA.     

92.         Items 11, 12, 14, 15 and 16 have the effect of removing cadets and the families of cadets from the operation of Part IIIA.

93.         Item 17 repeals subsection 58B(3) which precludes the Minister from making a determination dealing with the forfeiture or assignment of the remuneration, allowances or other pecuniary benefits provided for under Part IIIA.   This subsection, combined with regulations 59 to 72 of the Defence Force Regulations 1952 , is extremely prescriptive when dealing with the remuneration of ADF members who may be held in custody pending trial. 

94.         Effectively, the requirements are that pay and allowances are forfeited while the person is in custody awaiting trial and it is difficult to reinstate the forfeited pay and allowances should the trial not proceed or the person is found not guilty of the offence for which charges have been laid. Repealing the subsection and regulations will provide the Minister with the flexibility to make a determination in relation to these matters either generally, if that is appropriate, or more specifically, on a case by case basis.

95.         Item 18 repeals section 58E that provides for regulations to enable the Minister to delegate his/her powers to make determinations under subsection 58B(1) in relation to the remuneration, allowances and other pecuniary benefits for ADF members.  Subregulation 72A(1) of the Regulations identifies each of the matters in subsection 58B(1) except paragraph 58B(1)(ga) which deals with compensation, incentives or other benefits surrounding the availability of Reservists for defence service.  Subregulation 72A(2) nominates the persons to whom the Minister can delegate the power.

96.         It is proposed to repeal regulation 72A and as a consequence, item 24 substitutes new section 58E which specifically sets out the Minister’s delegation powers.

97.         Subsection 58E(1) nominates each of the persons to whom the Minister can delegate his/her powers to make determinations under subsection 58B(1).  The list is the same as the list that currently exists in subregulation 72A(2).

98.         Subsection 58E(2) continues to preclude the Minister from delegating his/her powers to make determinations dealing with compensation, incentives or other benefits surrounding the availability of Reservists for defence service.

99.         Items 19 and 21 repeal the notes to subsections 58G(2) and 58L(2) respectively.  Those notes refer to the make up of the Permanent Forces and refer to the Reserves established under the Naval Defence Act 1910 and the Air Force Act 1923 .  The notes are redundant as new Part III deals with these matters.

Australian Defence Force Cadets

100.     Item 22 repeals Part V that currently deals with Cadets.  The item substitutes new arrangements for the direction and administration of the Australian Defence Force Cadets (ADF Cadets), which reflect the One Defence construct. The changes will not have any effect on day to day management of cadet units.

101.     ADF Cadets conduct Defence youth development programs for young people with a minimum age requirement of 12 if the cadet would turn 13 in the calendar year in which the cadet would be accepted and a maximum age requirement being one day before the cadet turns 20. Cadet units, as provided for under section 62 of the Defence Act 1903 , section 38 of the Naval Defence Act 1910 and section 8 of the Air Force Act 1923 , are established by Defence in partnership with the community as voluntary community based youth development groups.  (Note: there is no ADF command role under the legislation for the ADF Cadets.)

102.     Officers of cadets and instructors of cadets are appointed by delegates of the Service Chiefs under the Cadet Forces Regulations 2013 and cadets are accepted in accordance with those regulations.  Officers of cadets, instructors of cadets and cadets are not members of the ADF and are not officials for the purposes of the Public Governance, Performance and Accountability Act 2013 (see item 2 in the table in subrule 9(2) of the Public Governance, Performance and Accountability Rule 2014 ) .

103.     The Cadet Forces Regulations 2013 will be amended to reflect the concept of ADF Cadets as Defence established voluntary community based youth development programs conducted in partnership with the community.

104.     New section 62 provides that the ADF Cadets consists of the Navy, Army and Air Force Cadets (consistent with the current arrangements under the Naval Defence Act 1910 , the Act and the Air Force Act 1923 ). These organisations are made up of cadets, officers and instructors of cadets, who have volunteered and been accepted by the CDF.

105.     New section 62A deals with the direction and administration of ADF Cadets. Subsection 62A(1) provides for the CDF to direct and administer the ADF Cadets.  In doing so, the CDF must comply with any directions of the Minister (subsection 62A(2)).  To facilitate that direction and administration, the CDF can direct the VCDF, a Service Chief or any other member of the ADF to provide him/her with assistance (subsection 62A(3)).

106.     The CDF can use ADF members and the resources of the Department (for example, money, property, training, equipment, facilities, APS personnel) for the purposes of the administration, management, supervision and training of officers of cadets, instructors of cadet and cadets (subsection 62A(4)).  This is consistent with current arrangements for ADF Cadets and reinforces subsection 62A(3).  CDF’s use of departmental resources is subject to the Public Governance Performance and Accountability Act 2013.

107.     New section 62B takes the place of Ministerial determinations under section 58B of the Act (see items 11, 12, 14, 15 and 16).  The CDF, as the administrator of ADF Cadets, can make determinations by legislative instrument that provide for the payment of allowances or other pecuniary benefits to or for officers of cadets, instructors of cadets and cadets (paragraph 62B(1)(a)), to or in respect of members of the families of officers of cadets, instructors of cadet and cadets (paragraph 62B(1)(b)) and for the provision of other benefits to or for officers of cadets, instructors of cadet and cadets or the members of the families of officers of cadets, instructors of cadet and cadets (paragraph 62B(1)(c)).

108.     It is not intended that determinations under section 62B are used to pay remuneration to cadets, instructors and officers of cadets, as they are not employees. Determinations may provide for financial assistance to officers of cadets, instructors of cadets and cadets and/or families of officers of cadets, instructors of cadets and cadets by way of grants, honoraria, reimbursement of expenses or other means.  As is currently the case, a determination by the CDF can also provide for the recovery of any part or all of the financial assistance provided under the determination if an event set out in the determination occurs (subsection 62B(2)).

109.     Cadets are not members of the ADF (subsection 62C(1)) and officers of cadets and instructors of cadet do not become members of the ADF because of those roles (subsection 62C(2)).  In line with subsections 62A(3) and (4), it is expected that the CDF will rely on ADF members (either members of the Permanent Force or members of the Reserves) and APS employees in the Department for administration and to provide assistance to cadets units.

110.     New section 62D provides that no civil contract of any kind is created with the Crown or the Commonwealth with respect to the acceptance of a person as an officer, instructor or cadet in the ADF Cadets. This provision makes it clear that officers, instructors and cadets do not have an employment relationship with Defence.

111.     New section 62E requires the CDF to prepare an annual report on his administration of the ADF Cadets (subsection 62E(1)), which is to be included in the Defence Annual Report prepared under section 46 of the Public Governance, Performance and Accountability Act 2013 .  This supports the transparency objectives under the Public Governance, Performance and Accountability Act 2013

112.     Item 23 repeals the definition of Defence Instructions in section 93 (which is in that Part of the Act dealing with the testing for prohibited substances).  The definition, which refers to single Service Instructions, is not required as new section 11 only provides for the Secretary and the CDF to jointly issue Defence Instructions (see section 11 in item 7).

113.     Items 24, 26, 29, 30 and 56 substitute a reference to “the Chief of the Defence Force” in lieu of a reference to “relevant/appropriate service chief”  or to “the Chief of Navy, Chief of Army or the Chief of Air Force” in paragraphs  (b) and (c) of the definition of relevant authority in section 93, in subsections 103(2) and 103(3), in paragraph 110O(1)(a), in subsection 116B(1) and paragraphs 123F(a) and (b) respectively.  This is to reflect the new control and administration arrangements set out in Part II.

114.     Items 25, 33, 35, 37 and 54 omits references to a Service Chief in section 93A, subsections 116C(3), 116E(1) and 116M(1), subsection 116M(2), subsections 116M(5) and (6), section 123A respectively to reflect the new control and administration arrangements in Part II.

115.     Item 27 substitutes section 11 for section 9A in subsection 109(1).  Section 11 is the new section dealing with Defence Instructions.

116.     Item 28 repeals paragraph 110DA(2)(b).  Subsection 110DA(2) provides that the Inspector-General ADF can conduct an investigation at his/her own initiative (paragraph 110DA(2)(a)), at the request of a Service Chief (paragraph 110DA(2)(b)) or at the request of an individual (paragraph 110DA(2)(c)).  Paragraph 110DA(2)(b) is superfluous as a Service Chief is also an individual.

117.     Item 31 complements the change at item 30 by removing from paragraphs 116B(1)(a) and (b) the words “under his or her command”.  The paragraphs currently provide that the Chiefs of Service may attach a member or a class of members to an arm of the ADF “under his or her command”.  Under the new control and administration arrangements in Part II, the whole of the ADF is under the command of the CDF.

118.     Item 32 substitute the words “Defence Force” in subsection 116B(3) in lieu of a reference to the Australian Navy, the Australian Army or the Australian Air Force” to reflect the One Defence construct.

119.     Items 34, 36 and 39 omit the words “other than this power of delegation” in subsection 116M(1) (dealing with the CDF’s delegation powers), repeal subsections 116M(3) and (4) and subsections 116R(2) and (3) respectively, because the words/subsections are not necessary as they are covered by section 34AB of the Acts Interpretation Act 1901 .

120.     Item 38 redrafts subsection 116R(1) to remove references to matters covered by the Acts Interpretation Act 1901 .  This is to ensure consistency when relying on the Acts Interpretation Act 1901 for delegation provisions.

121.     Items 40, 41, 42, 43, 44 and 45 amends definitions in subsection 117(1) and references in subsections 117(2) and (3), paragraph 117A(2)(a) and subsection 117A(3) respectively to change references to Navy and the Chief of Navy to references to Defence Force and the Chief of the Defence Force.

122.     Items 46 and 47 create subsections 119(1) and (2).  Subsection 119(1) stays the same as it is currently written (that is, regulations can be made in relation to the forfeiture and suspension of the pay and allowances of ADF members).  New subsection 119(2) makes it clear that notwithstanding the regulation making power, the Minister may also make a determination under section 58B dealing with the same matters (see item 17 above).

123.     This ensures that, consistent with the One Defence approach, the section 58B power may be exercised holistically, to deal with the totality of situations that trigger either the start or end of a period of payment.   

124.     Item 48 changes a reference to subsection 9A(1) and (2) and to “Defence Instructions(General)” in subsections 120A(3A) and (3B), which deal with the Secretary’s and the CDF’s ability to delegate their joint powers to make Defence Instructions (General), to a reference to new section 11 and to “Defence Instructions” respectively.

125.     Items 49, 50, 51 and 52 make changes to the delegation powers in the Act to reflect the new arrangements for the control and administration of the ADF under Part II.  There is no need to provide for Service Chiefs to delegate their powers because they will come under the command of the CDF.       

126.     Item 49 substitutes new subsection 120A(3D) for current subsection 120A(3D) to enable the CDF to delegate his/her administrative powers under subsections 23(2) and (3), 26(2), 29(1) and sections 93A, 100, 101, 103, 104 and 123A.  As a consequence, items 50, 51 and 52 repeal subsections 120A(3DA) to (4D), (5), (6) and (7).

127.     Item 53 inserts a reference to the Defence Force and removes a reference to the Australian Navy, the Australian Army and the Australian Air Force in section 122 which will now provide that an appointment of an officer, or the enlistment of a member, of the Defence Fiore, or the extension of an appointment or enlistment is not invalid because of a defect or irregularity in the appointment, enlistment or extension.   

128.     Item 55 repeals section 123AA that deals with the supply of liquor to cadets (on the basis that there are sufficient State/Territory laws dealing with the supply of liquor to minors).

129.     Item 57 inserts a new paragraph into section 124 to enable regulations to be made for the appointment, resignations and termination of Service Chiefs.  This is necessary because of the removal of Service Chiefs’ statutory appointment and authority under the new control and administration arrangements in Part II.

130.     Item 58 removes references to “cadets” from the regulation making powers in paragraphs 124(1)(b), (c), (e) and (i) in light of the changes at items 11, 12, 14, 15, 16 and 22 above and the following items 58 and 60.

131.     Item 59 inserts a regulation making power (paragraph 124(1)(ia)) for the administration, management, supervision and training of cadets (see also items 11, 12, 14, 15, 16, 22 and 57 above and the following item 60.

132.     Item 60 repeals paragraph 124(1)(qd) which has the effect of removing the power to make regulations in relation to the command, control and administration when members of different arms of the ADF or one or more than one arm of the ADF is acting together. 

133.     This is in line with the new command arrangements and the One Defence construct and the CDF, as sole commander of the ADF, will be able to make standing or general orders or give directions to put in place the appropriate arrangements for command, control and administration where members of the different arms of the ADF are working or acting together .

134.     Item 61 removes a reference to cadet in subsection 124(1B) in line with the changes at items 11, 12, 14, 15, 16, 22, 57 and 58 above.

135.     Item 62 inserts a new Schedule 1 at the end of the Act that sets out ranks and corresponding ranks in the ADF (subclause 1(1)).  Subclause 1(2) stipulates that a rank specified in an item in the columns in the table is a corresponding rank in relation to any other rank specified at the same item in the table.  Subclause 1(3) provides that historical terms for ranks (such as trooper, bombardier, gunner etc) are taken to be reflected in the table at the relevant items for those ranks.  This also provides for the use of gender-specific rank descriptors in their application to individuals in accordance with Service customs and traditions (such as Aircraftman and Aircraftwoman in the Air Force).

Part 2 - Transitional provisions

136.     Item 63 is inserted to ensure the continuity of the appointments of the current Service Chiefs who have been appointed under current Part II of the Act.  This means that the appointments by the Governor-General under section 9 remain valid until those terms expire on the date set out in the original term of appointment.

137.     Item 64 is inserted to maintain the “status quo” for those members of the ADF who are serving on continuous full time service under the arrangements that currently exist prior to any changes effected by this Bill.

138.     Item 65(1) preserves Defence Instructions (General) in force immediately before the commencement of Schedule 1 by deeming them to have been issued jointly by the Secretary and the CDF under new subsection 11(1).

139.     Item 65(2) preserves single Service Defence Instructions in force immediately before the commencement of Schedule 1 by deeming them to have been issued jointly by the Secretary and the CDF under new subsection 11(1).  However, these single Service instructions will cease to have effect on or after 31 December 2017 (item 64(3)). That is, if the content of these single Service directions is required, the content will need to be incorporated into a Defence Instruction or into policy documents or manuals. 

140.     Item 66 provides that the Navy (Canteens) Regulations 1954 (which were made under the Naval Defence Act 1910 ) will continue to have effect as if they had been made under the Defence Act 1903 .

141.     Item 67 provides that a person who is an officer, instructor or cadet immediately before the commencement of schedule 1 is taken to have been accepted as such an officer, instructor or cadet under the new section 62 of the Defence Act 1903 .   

142.     Item 68(1) preserves the effect of the Cadet Force Regulations 2013 by providing that they are taken to have been made under new paragraph 124(1)(ia) (see item 58) after the commencement of Schedule 1.

143.     Item 68(2) deems a reference in the Cadet Force Regulations 2013 to a provision repealed by the Schedule or Schedule 3 is taken to be a reference to paragraph 124(1)(ia).

Schedule 2 - Amendments of other Acts

144.     The amendments to the other Acts listed below reflect the One Defence construct being established by the amendments in Schedule 1.  They are principally to remove references to the Acts that are being repealed by items 1 and 2 of Schedule 3 (the Naval Defence Act 1910 , to the Air Force Act 1923 ) and to replace those references, where appropriate, with references to the Defence Act 1903

145.     In addition, references to:

i)         single arms of the ADF are being replaced with references to the ADF; and

ii)       the VCDF and the Service Chiefs (either to all or singly) are being replaced with references to the CDF;

iii)     Defence Instructions (General) are being replaced with references to Defence Instructions; and

iv)     single Service Defence Instructions are being omitted.

Part 1 - Amendments

Age Discrimination Act 2004

146.     Items 1 to 4 omit references to the Naval Defence Act 1910 , to the Air Force Act 1923 , to Defence Instructions (General) and to single Service Defence Instructions in the relevant parts of the Act.

Archives Act 1983

147.     Item 5 substitutes references to the Navy, Army and Air Force Cadets with a reference to Australian Defence Force Cadets.

Australian Citizenship Act 2007

148.     Item 6 substitutes references in a note to the Naval Defence Act 1910 , the Defence Act 1903 and to the Air Force Act 1923 with a reference to the Defence Act 1903 .

Australian Defence Force Cover Act 2015

149.       Item 7 changes a reference to subsection 32A(3) of the Naval Defence Act 1910 , subsection 50(3) of the Defence Act 1903 and subsection 4J(3) of the Air Force Act 1923 to subsection 26(2) in new Part III (see item 7 in Schedule 1).

150.     Items 8 and 9 substitute a new definition of Permanent Forces and Reserves respectively to reflect changes being effected by Schedule 1.

Australian Defence Force Superannuation Act 2015  

151.     Item 10 changes a reference to subsection 32A(3) of the Naval Defence Act 1910 , subsection 50(3) of the Defence Act 1903 and subsection 4J(3) of the Air Force Act 1923 to subsection 26(2) in new Part III (see item 7 in Schedule 1).

152.     Items 11 and 12 substitute a new definition of Permanent Forces and Reserves respectively to reflect changes being effected by Schedule 1.

Australian National Maritime Museum Act 1990

153.     Items 13 to 16 substitutes a reference to the Chief of Navy with a reference to the Chief of the Defence Force.

Defence Force Discipline Act 1982

154.     Items 17 to 20 omit references to the Naval Defence Act 1910 , to the Air Force Act 1923 , to Defence Instructions (General) and to single Service Defence Instructions in the Act.

Defence Force Retirement and Death Benefits Act 1973

155.     Item 21 removes references to the Naval Defence Act 1910 and the Air Force Act 1923 in subsection 19(3) and ensures that for the purposes of calculating the member’s superannuation contribution rate, the rate of pay applicable to a member of the Defence Force Retirement and Death Benefits scheme whose hours of duty are determined under a flexible service arrangement is the highest increment for rank held (that is, there is no pro-rating of pay for the purposes of calculating the member’s contributions under the scheme - the member is still required to contribute 5.5% of the annual rate of pay at the highest increment for rank held).

156.     Items 22 to 24 substitute the Chief of the Defence Force for references to the Chiefs of Service in the Act.

Defence Forces Retirement Benefits Act 1948

157.     Item 25 substitutes the Chief of the Defence Force for references to the Chiefs of Service in subsection 51(6) of the Act.

Defence Housing Australia Act 1987

158.     Item 26 repeals a definition of “service chief” and item 27 removes the ability of the Chiefs of Service to each appoint one member to Defence Housing Australia Advisory Committee and gives the CDF the power to appoint three persons to that Committee.

159.     Item 28 substitutes the CDF for a reference to “a service chief” in paragraph 57(1)(b) and item 29 provides the CDF with a power of delegation in lieu of the current individual delegation powers of the Chiefs of Service.

Defence (Parliamentary Candidates) Act 1969

160.     Items 30 to 34 replace references to Service Chiefs with references to the CDF throughout the Act.  Item 35 provides the CDF with a power of delegation in lieu of the current individual delegation powers of the Chiefs of Service.

Defence Reserve Service (Protection) Act 2001

161.     Items 36, 38 and 42 change a reference to section 50D (Calling out the Reserves) in the Defence Act 1903 to section 28 in new Part III (see item 7 in Schedule 1).

162.     Items 37, 40 and 41 remove references to “service chief” and where appropriate, substitute a reference to the CDF.

163.     Item 39 changes references to continuous full time service that a member of the Reserves volunteers to undertake under specific sections of the Naval Defence Act 1910 , the Defence Act 1903 and the Air Force Act 1923 to a reference to subsection 26(1) in new Part III (see item 7 in Schedule 1).    

164.     Items 43 and 44 provide the CDF with a power of delegation in lieu of the current individual delegation powers of the Chiefs of Service.

Defence (Visiting Forces) Act 1963

165.     Items 45 to 47 and 49 to 53 remove references to service chiefs and their part of the ADF and substitute the CDF.  Item 48 omits the words “other than this power of delegation” in subsection 28(3) because the words are not necessary as they are covered by section 34AB of the Acts Interpretation Act 1901 .

 

Disability Discrimination Act 1992

166.     Item 54 omits a reference to the Naval Defence Act 1910 .

Freedom of Information Act 1982

167.     Item 55 substitutes a reference to the Navy, Army and Air Force Cadets with a reference to the Australian Defence Force Cadets.

Income Tax Assessment Act 1936

168.     Item 56 removes references to a service chief.

Long Service Leave (Commonwealth Employees) Act 1976

169.     Item 57 removes references to the Naval Defence Act 1910 and to the Air Force Act 1923 .  Item 80 in Part 2 of this Schedule inserts a savings provision in relation to paragraph 12(10)(b) of this Act.   

Maritime Powers Act 2013

170.     Item 58 substitutes Defence Act 1903 for a reference to the Naval Defence Act 1910 while item 59 omits a reference to the Chiefs of Service. 

Military Rehabilitation and Compensation Act 2004

171.     Items 60, 61 and 62 substitute a new definition of Australian Defence Force Cadets , Permanent Forces and Reserves respectively to reflect changes being effected by Schedule 1.

172.     Items 63 and 64 has the effect of removing references to service chiefs in subparagraphs 362(1)(e)(v) and (vi).

173.     Item 65 provides the CDF with a power of delegation in lieu of the current individual delegation powers of the Chiefs of Service.

Navigation Act 2012

174.     Item 66 repeals the definition of Australian Navy because it is no longer required and item 67 substitutes a reference to Australian Navy with a reference to the Department of Defence.  This is to addresses recommendation 3.10 of the First Principles Review - Creating One Defence report which was that geospatial information functions be consolidated into the Australian Geospatial-Intelligence Organisation following improved resourcing and connectivity .

Office of National Assessments Act 1977

175.     Item 68 removes a reference to service chiefs in the definition of prescribed Commonwealth officer in section 3.

 

 

Privacy Act 1988

176.     Item 69 removes a reference to Navy, Army and Air Force Cadets and substitutes a reference to ADF Cadets in the definition of Defence Force in subsection 6(1).

Public Interest Disclosure Act 2013

177.     Item 70 removes a reference to Navy, Army and Air Force Cadets and substitutes a reference to ADF Cadets in the definition of Defence Department in section 8.

Safety, Rehabilitation and Compensation Act 1988

178.     Item 71 removes references to Navy, Army and Air Force Cadets and substitutes a reference to Australian Defence Force Cadets in paragraph 6A(1).

179.     Item 72 substitutes a reference to the Defence Act 1903 in lieu of a reference to the Naval Defence Act 1910 , the Defence Act 1903 and the Air Force Act 1923 .  Item 80 in Part 2 of this Schedule inserts a savings provision in relation to paragraph 33(2)(b) of this Act.

180.     Item 73 repeals a definition of service chief and items 74 and 75 remove references to service chiefs in subsection 151(1).

181.     Item 76 provides the CDF with a power of delegation in lieu of the current individual delegation powers of the Chiefs of Service.

Sex Discrimination Act 1984

182.     Item 77 omits a reference to the Naval Defence Act 1910 .

Sydney Harbour Federation Trust Act 2001

183.     Item 78 omits a reference to the Naval Defence Act 1910 and substitutes a reference to the Defence Act 1903 .

Work Health and Safety Act 2011

184.     Item 79 omits a reference to the Naval Defence Act 1910 and the Air Force Act 1923 .  Item 80 in Part 2 of this Schedule inserts a savings provision in relation to subsection 233(3) of this Act.

Part 1 - Transitional provisions

185.     Item 80(1) preserves paragraph 12(10)(b) of the Long Service Leave (Commonwealth Employees) Act 1976 , which deals with absence on specified defence service, in relation to defence service that was being rendered at the time of the amendment by item 57 of Part 1 of Schedule 2.

186.     Item 80(2) preserves paragraph 33(2)(b) of the Safety, Rehabilitation and Compensation Act 1988 in respect of leave granted before the time of the amendment effected by item 72 of Part 1 of Schedule 2.  Section 33 provides for a reduction in compensation by an amount paid by the Commonwealth to an employee and paragraph 33(2)(b), excludes amounts paid for absences under regulations made for the purposes of the repealed legislation (see Schedule 3).    

187.     Item 80(3) ensures that official inquiries conducted by a court, board or commission of inquiry under regulations made under the Defence Act 1903 , the Naval Defence Act 1910 or the Air Force Act 1923 that commenced before the amendment by item 79 of Part 1 of Schedule 2 continue in effect in relation to a proceeding or inquiry commenced before that time.

Schedule 3 - Repeals

188.     Schedule 3 repeals both the Naval Defence Act 1910 and to the Air Force Act 1923 to give effect to the One Defence construct. 

  



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

As set out in the Outline of this Explanatory Memorandum, the major amendments effected by the Bill are to the Defence Act 1903 to ensure that Defence evolves into a single integrated system by becoming one end-to-end organisation - One Defence - effectively, incorporating the separate arms of the Services established under separate legislation into one organisation, the Australian Defence Force (ADF). 

Relevant parts of the Naval Defence Act 1910 and the Air Force Act 1923 are being incorporated into the Defence Act 1903 and these Acts are being repealed as they will no longer be necessary.  There is also a need to make consequential amendments to a number of other Acts to reflect the changed arrangements.    

The purpose of the Bill is to implement recommendations in the First Principles Review - Creating One Defence report that require legislative change and to improve the overall operation of the Defence and the ADF.

Human rights implications

The Bill promotes the following rights:

  • Article 7, International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to just and favourable conditions of work;
  • Article 2(2), ICESCR, the right to equality and non-discrimination; and
  • Article 26, International Covenant on Civil and Political Rights (ICCPR), the right to equality and non-discrimination.

 

The Bill amends the provisions for flexible service introduced into the Naval Defence Act 1910 , the Act and the Air Force Act 1923 by Schedule 2 of the Defence Legislation Amendment (Superannuation and ADF Cover) Act 2015 .  The amending provisions do not change the ability for members, or classes of members, of the Permanent Forces to participate in flexible working arrangements in line with contemporary community standards of employment. 

A flexible service determination by the Chief of the Defence Force may provide for a pattern of service which may enable members to attend for particular hours in a day, days in a week or for differing periods of time (for example, three months on and three months off) or a combination of these arrangements.

The flexible service arrangements will allow ADF members to better balance their military careers and their personal lives. Members on flexible service arrangements will have consistent comparative benefits to other ADF members, including access to death and invalidity and superannuation benefits. This promotes the right to equality and non-discrimination. The introduction of flexible service arrangements in legislation is consistent with the Review into the Treatment of Women in the Australian Defence Force conducted by Elizabeth Broderick, in her role as the Sex Discrimination Commissioner. This measure promotes the right to equality and non-discrimination.

 

Conclusions

This Bill is compatible with human rights because it advances the protection of human rights.