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Schedule 2—Reserve service

Schedule 2 Reserve service

Part 1 Scope of protections

Division 1—Scope of Parts 5, 6 and 7 of the Defence Reserve Service (Protection) Act 2001

Defence Reserve Service (Protection) Act 2001

1  Subsections 3(5) and (6)

Omit “(except for certain kinds of voluntary continuous full time service)”.

2  Subsection 3(7)

Omit “continuous full time defence service (except for certain kinds of voluntary continuous full time service)”, substitute “defence service”.

3  Section 11 (table items 2, 3 and 4)

Repeal the items, substitute:

2

Part 5

Employment protection

All kinds of defence service

3

Part 6

Partnership protection

All kinds of defence service

4

Part 7

Education protection

All kinds of defence service

4  Section 12

Repeal the section.

5  Subsection 24(1)

Omit “except for certain kinds of voluntary continuous full time service (see Part 3)”.

6  Subsection 30(1)

Omit “to which this Part applies”.

7  Subsection 30(1) (note)

Repeal the note.

8  Subsection 34(1)

Omit “except for certain kinds of voluntary continuous full time service (see Part 3)”.

9  Subsection 37(1)

Omit “continuous full time defence service except for certain kinds of voluntary continuous full time service (see Part 3)”, substitute “defence service”.

10  Application of amendments

The amendments made by this Division apply in relation to defence service that a member starts to render on or after the commencement of this item.

Division 2—Scope of Parts 8, 9 and 10 of the Defence Reserve Service (Protection) Act 2001

Defence Reserve Service (Protection) Act 2001

11  Subsections 3(8) and (9)

Repeal the subsections, substitute:

             (8)  Part 8 postpones debts that a member (or his or her dependant) is liable to pay and that would otherwise fall due after the member starts rendering:

                     (a)  defence service as a result of a call out; or

                     (b)  operational service.

Interest accrues on the postponed debts. Part 8 also stays proceedings in respect of the postponed debts.

             (9)  Part 9 protects a member or his or her dependant from bankruptcy proceedings. It applies only if the member has rendered:

                     (a)  defence service as a result of a call out; or

                     (b)  operational service.

12  Subsection 3(10)

Omit “after being called out”, substitute “as a result of a call out”.

13  Section 7

Insert:

call out means an order under section 28, 51A, 51AA, 51AB, 51B, 51C or 51CA of the Defence Act 1903 .

14  Section 7 (definition of call out day )

Repeal the definition.

15  Section 7

Insert:

financial arrangement has the meaning given by section 40A.

operational service :

                     (a)  subject to paragraph (d), includes defence service in circumstances involving one or more of the following:

                              (i)  war (within the meaning of the Defence Act 1903 ) or warlike operations;

                             (ii)  a time of defence emergency (within the meaning of the Defence Act 1903 );

                            (iii)  defence preparation;

                            (iv)  peacekeeping or peace enforcement;

                             (v)  assistance to Commonwealth, State, Territory or foreign government authorities and agencies in matters involving Australia’s national security or affecting Australian defence interests;

                            (vi)  support to community activities of national or international significance;

                           (vii)  civil aid, humanitarian assistance, medical or civil emergency or disaster relief; and

                     (b)  subject to paragraph (d), includes defence service prescribed by the regulations for the purposes of this paragraph; and

                     (c)  subject to paragraph (d), includes defence service by a member involving:

                              (i)  preparing to render particular operational service covered by paragraph (a) or (b); or

                             (ii)  decompressing after rendering operational service covered by paragraph (a) or (b); and

                     (d)  does not include defence service prescribed by the regulations for the purposes of this paragraph.

start day of continuous full time service to which Part 8, 9 or 10 applies has the meaning given by subsection 13(3).

16  Subsection 9(1) (definition of dependant )

Omit “as a result of an order under section 28, 51A, 51AA, 51AB, 51B, 51C or 51CA of the Defence Act 1903 ”, substitute “to which Part 8, 9 or 10 applies (see section 13)”.

17  Subsection 9(1) (paragraph (b) of the definition of dependant )

Omit “member’s call out day”, substitute “start day of the service”.

18  Subsection 9(1) (paragraphs (c) and (e) of the definition of dependant )

Omit “such”, substitute “the”.

19  Section 11 (table items 5, 6 and 7)

Repeal the items, substitute:

5

Part 8

Financial liability protection

(a) continuous full time service as a result of a call out; and

(b) continuous full time service that is operational service;

(see section 13)

6

Part 9

Bankruptcy protection

(a) continuous full time service as a result of a call out; and

(b) continuous full time service that is operational service;

(see section 13)

7

Part 10

Loans and guarantees

Continuous full time service as a result of a call out (see section 13)

20  Section 13

Repeal the section, substitute:

13   Call outs and operational service

             (1)  Parts 8, 9 and 10 apply in relation to continuous full time service that a member renders as a result of a call out.

             (2)  Parts 8 and 9 also apply in relation to continuous full time service that is operational service.

             (3)  The start day of defence service to which subsection (1) or (2) applies is:

                     (a)  if subsection (1) applies—the day on which the member becomes liable to render the service; or

                     (b)  otherwise—the day on which the member starts to render the service.

21  Division 1 of Part 8 (heading)

Repeal the heading, substitute:

Division 1 Overview of Part

22  Subsection 40(1)

Repeal the subsection, substitute:

             (1)  This Part applies (see Part 3) to:

                     (a)  continuous full time service as a result of a call out; and

                     (b)  continuous full time service that is operational service.

23  Subsection 40(2)

Omit “member’s call out day”, substitute “start day of the service”.

24  Sections 41 to 44

Repeal the sections, substitute:

40A   Meaning of financial arrangement

                   In this Act:

financial arrangement means any of the following:

                     (a)  a secured or unsecured loan;

                     (b)  a hire purchase agreement;

                     (c)  an agreement to buy something (including land);

                     (d)  an agreement to lease something (including land);

                     (e)  a guarantee.

41   Financial liabilities that arise before start day of service

             (1)  This Part applies to a liability to make a payment under a financial arrangement if:

                     (a)  the liability is a liability of:

                              (i)  a member who renders defence service; or

                             (ii)  a dependant of a member who renders defence service; and

                     (b)  the liability arose before the start day of the service.

             (2)  This section is subject to the exceptions in sections 44, 45 and 46.

42   Options exercised on or after start day of service

             (1)  This Part also applies to a liability to make a payment under a financial arrangement if:

                     (a)  the liability is a liability of:

                              (i)  a member who renders defence service; or

                             (ii)  a dependant of a member who renders defence service; and

                     (b)  the liability arose when the member or dependant exercised, on or after the start day of the service, an option under the financial arrangement to buy or lease something (including land); and

                     (c)  the option was granted before the start day.

             (2)  This section is subject to the exceptions in sections 44, 45 and 46.

43   Rates etc. on land

Liabilities that arise before start day

             (1)  This Part applies to a liability to pay rates, or other taxes imposed in respect of land, if:

                     (a)  the liability is a liability of:

                              (i)  a member who renders defence service; or

                             (ii)  a dependant of a member who renders defence service; and

                     (b)  the liability arose before the start day of the service.

Liabilities that arise on or after start day

             (2)  This Part also applies to a liability to pay rates, or other taxes imposed in respect of land, if:

                     (a)  the liability is a liability of:

                              (i)  a member who renders defence service; or

                             (ii)  a dependant of a member who renders defence service; and

                     (b)  the member or dependant exercised, on or after the start day of the service, an option under a financial arrangement to buy or lease the land to which the rates or other taxes relate; and

                     (c)  the option was granted before the start day; and

                     (d)  the liability to pay the rates or other taxes arose on or after the day the member or dependant exercised the option.

Exceptions

             (3)  This section does not apply to a liability to pay GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 ).

             (4)  This section is subject to section 46.

44   Part does not apply to security holder already exercising remedies

                   This Part does not apply to a liability to make a payment under a financial arrangement if:

                     (a)  the liability is a liability of:

                              (i)  a member who renders defence service; or

                             (ii)  a dependant of a member who renders defence service; and

                     (b)  before the start day of the service, a court orders that a party to the financial arrangement may exercise all or any of the party’s remedies to enforce any security under the arrangement (including enter land if the security is land).

25  Subsections 45(1), 49(1) and 52(1)

Omit “an agreement”, substitute “a financial arrangement”.

26  Section 53 (heading)

Repeal the heading, substitute:

53   Interest payable on postponed payments under a financial arrangement

27  Subsection 53(1)

Omit “an agreement”, substitute “a financial arrangement”.

28  Paragraphs 53(3)(a) and (b)

Omit “agreement”, substitute “financial arrangement”.

29  Paragraph 53(3)(b)

Omit “member’s call out day”, substitute “start day of the member’s defence service”.

30  Paragraph 53(4)(a)

Omit “agreement”, substitute “financial arrangement”.

31  Subsection 54(3)

Omit “member’s call out day”, substitute “start day of the member’s defence service”.

32  Paragraph 56(2)(a)

Repeal the paragraph, substitute:

                     (a)  if the liability arose under a financial arrangement—the terms and conditions of the financial arrangement; and

33  Section 57

Omit “an agreement”, substitute “a financial arrangement”.

34  Paragraphs 57(a) and (b)

Omit “member’s call out day”, substitute “start day of the member’s defence service”.

35  Section 58 (heading)

Repeal the heading, substitute:

58   Instruments made on or after start day not affected

36  Paragraph 58(a)

Omit “an agreement”, substitute “a financial arrangement”.

37  Paragraph 58(a)

Omit “call out day”, substitute “start day of the defence service”.

38  Subsection 59(1)

Omit “an agreement”, substitute “a financial arrangement”.

39  Subsection 62(1)

Repeal the subsection, substitute:

             (1)  This Part applies (see Part 3) to:

                     (a)  continuous full time service as a result of a call out; and

                     (b)  continuous full time service that is operational service.

40  Subsection 62(2)

Omit “following a call out”.

41  Subsection 63(1)

Omit “member’s call out day for”, substitute “start day of”.

42  Subsection 65(2)

Omit “after being called out”.

43  Application of amendments

The amendments made by this Division apply in relation to defence service if the start day of the service occurs on or after the day this item commences.

Division 3—Definition of defence service

Defence Reserve Service (Protection) Act 2001

44  Section 7 (definition of defence service )

Omit “in a part”, substitute “as a member”.

Part 2 Enforcement and remedies

Division 1—Main amendments

Defence Reserve Service (Protection) Act 2001

45  Section 7

Insert:

civil penalty provision has the same meaning as in the Regulatory Powers Act.

46  Subsection 14(3)

Repeal the subsection, substitute:

             (3)  A breach of the Part may be a criminal offence or result in a civil penalty. Breaches can also be redressed by other civil means: see Part 11.

47  Subsection 15(2) (penalty)

Omit “for contravention of this subsection”.

48  At the end of section 15

Add:

             (3)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

49  Subsection 16(3) (penalty)

Omit “for contravention of this subsection”.

50  At the end of section 16

Add:

             (4)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

51  Subsection 17(2) (penalty)

Omit “for contravention of this subsection”.

52  At the end of section 17

Add:

             (3)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

53  Subsection 18(4) (penalty)

Omit “for contravention of this subsection”.

54  At the end of section 18

Add:

             (5)  A person who contravenes subsection (1) or (2) is liable to a civil penalty.

Civil penalty:          100 penalty units.

55  Subsection 19(2) (penalty)

Omit “for contravention of this subsection”.

56  At the end of section 19

Add:

             (3)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

57  Subsection 20(2) (penalty)

Omit “for contravention of this subsection”.

58  At the end of section 20

Add:

             (3)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

59  Subsection 21(3) (penalty)

Omit “for contravention of this subsection”.

60  At the end of section 21

Add:

             (4)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

61  Subsection 22(2) (penalty)

Omit “for contravention of this subsection”.

62  At the end of section 22

Add:

             (3)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

63  Subsection 23(3) (penalty)

Omit “for contravention of this subsection”.

64  At the end of section 23

Add:

             (4)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

65  Before Division 1 of Part 11

Insert:

Division 1A Overview of Part

72A   Overview of Part

             (1)  The regulations may provide for processes for making and investigating complaints about contraventions of this Act, and for mediating disputes under this Act.

             (2)  A person who suffers loss or damage because of a contravention of this Act may recover the amount of the loss or damage from the person who contravened this Act.

             (3)  A court that finds a person guilty of an offence against this Act in relation to another person may order the guilty person to pay compensation to the other person.

             (4)  An interested person may apply to a court for the following in relation to a contravention of this Act:

                     (a)  an injunction under the Regulatory Powers Act;

                     (b)  a declaratory or other order.

             (5)  A person prescribed by the regulations may apply to a court for a civil penalty order under the Regulatory Powers Act for a contravention of Part 4 of this Act (protection against discrimination).

Division 1B Complaints and mediation

72B   Complaints and mediation

             (1)  The regulations may provide in relation to processes for any of the following:

                     (a)  making and investigating complaints about alleged contraventions of this Act;

                     (b)  mediating disputes between persons whose interests are affected by this Act.

             (2)  This Division does not limit the other Divisions of this Part.

66  At the end of subsection 73(1)

Add “or a civil penalty order has not been made against the person (if the provision is a civil penalty provision)”.

67  Subsection 73(3)

Omit “3 years”, substitute “4 years”.

68  Subsection 74(1)

Repeal the subsection, substitute:

             (1)  A court that:

                     (a)  finds a person guilty of an offence against this Act in relation to another person (whether or not the court imposes a penalty); or

                     (b)  makes a civil penalty order (within the meaning of the Regulatory Powers Act) against a person for contravening a civil penalty provision of this Act in relation to another person;

may order the first person to pay the other person such compensation as the court thinks reasonable.

69  At the end of Part 11

Add:

Division 3 Civil penalties

76A   Civil penalty provisions

Enforceable civil penalty provisions

             (1)  Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.

Note:          Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, a person prescribed by the regulations for the purposes of this subsection is an authorised applicant in relation to the civil penalty provisions of this Act.

Relevant court

             (3)  For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:

                     (a)  all State and Territory courts (including courts of summary jurisdiction), so far as their jurisdiction extends to the matter;

                     (b)  the Federal Court of Australia or the Federal Circuit Court of Australia.

Extension to external Territories

             (4)  Part 4 of the Regulatory Powers Act, as it applies in relation to the civil penalty provisions of this Act, extends to every external Territory.

Division 4 Victimisation

76B   Victimisation

             (1)  A person must not subject, or threaten to subject, another person to any detriment for the reason that, or for reasons that include the reason that, the other person:

                     (a)  has made, or proposes to make, a complaint under regulations made for the purposes of paragraph 72B(1)(a); or

                     (b)  has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under regulations made for the purposes of that paragraph; or

                     (c)  has brought, or proposes to bring, proceedings under Division 1 or 2 of this Part against any person.

             (2)  A person who contravenes subsection (1) commits an offence.

Penalty:  30 penalty units.

             (3)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

70  After section 78

Insert:

78A   Physical elements of offences

             (1)  This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision ) commits an offence.

             (2)  For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct provision.

Note:          Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.

78B   Contravening an offence provision or a civil penalty provision

             (1)  This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision ) commits an offence or is liable to a civil penalty.

             (2)  For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.

71  Subsection 81(2)

Repeal the subsection, substitute:

             (2)  Without limiting subsection (1), the regulations may:

                     (a)  prescribe penalties, not exceeding 50 penalty units, for offences against the regulations; or

                     (b)  prescribe civil penalties, not exceeding 60 penalty units, for contraventions of the regulations.

72  Application of amendments

(1)       The amendments made by items 46 to 64 of this Schedule apply to conduct occurring on or after the commencement of this item.

(2)       The amendment made by item 67 of this Schedule applies in relation to an action for a contravention of this Act if the contravention occurred on or after the commencement of this item.

(3)       Division 4 of Part 11 of the Defence Reserve Service (Protection) Act 2001 , as added by this Division, applies in relation to:

                     (a)  subjecting a person to a detriment on or after the commencement of this item; or

                     (b)  threatening, on or after that commencement, to subject a person to a detriment;

whether:

                     (c)  the relevant complaint is made, information is given, documents are produced or proceedings are brought before, on or after that commencement; or

                     (d)  the proposal to do any of those things is made before, on or after that commencement;

whichever is applicable.

(4)       For the purposes of Division 4 of that Part and subitem (3) of this item:

                     (a)  a complaint made under the regulations made under the Defence Reserve Service (Protection) Act 2001 before the commencement of this item is taken, from that commencement, to have been made under regulations made for the purposes of paragraph 72B(1)(a) of that Act, as inserted by this Division; and

                     (b)  a person who, before that commencement, exercised or performed any power or functions under the regulations in relation to such a complaint is taken, from that commencement, to have exercised or performed the power or functions under regulations made for the purposes of that paragraph.

Division 2—Amendments contingent on the Regulatory Powers (Standardisation Reform) Act 2017

Defence Reserve Service (Protection) Act 2001

73  Section 7

Insert:

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014 .

Regulatory Powers (Standardisation Reform) Act 2017

74  Item 1 of Schedule 6

Repeal the item.

Part 3 Discrimination and harassment

Defence Reserve Service (Protection) Act 2001

75  Section 7

Insert:

harass has a meaning affected by subsection 23A(3).

protected co-worker has the meaning given by subsection 23A(5).

protected worker has the meaning given by subsection 23A(4).

76  After subsection 14(2)

Insert:

          (2A)  It is also unlawful for a person to harass a worker, partner or co-worker of the person on that ground.

77  After section 18

Insert:

18A   Dissolving partnership etc.

             (1)  A person who is a partner in a partnership must not, for a prohibited reason relating to another partner in the partnership, or for reasons that include a prohibited reason relating to another partner, do or threaten to do any of the following:

                     (a)  dissolve the partnership;

                     (b)  expel the other partner from the partnership;

                     (c)  require the other partner to forfeit his or her share in the partnership;

                     (d)  subject the other partner to any other detriment concerning the partnership.

             (2)  Conduct mentioned in subsection (1) is for a prohibited reason in relation to another partner if it is engaged in because the other partner:

                     (a)  may volunteer to render defence service; or

                     (b)  is rendering defence service; or

                     (c)  is, or may become, liable to render defence service; or

                     (d)  has previously rendered defence service.

             (3)  A person who contravenes subsection (1) commits an offence.

Penalty:  30 penalty units.

             (4)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

78  At the end of Part 4

Add:

Division 6 Harassment

23A   Harassment

             (1)  A person must not, for a prohibited reason, or for reasons that include a prohibited reason, harass another person if the other person is:

                     (a)  a protected worker of the person; or

                     (b)  a partner in a partnership in which the person is also a partner; or

                     (c)  a protected co-worker of the person.

             (2)  Conduct mentioned in subsection (1) is for a prohibited reason if it is engaged in because the other person:

                     (a)  may volunteer to render defence service; or

                     (b)  is rendering defence service; or

                     (c)  is, or may become, liable to render defence service; or

                     (d)  has previously rendered defence service.

             (3)  Harass includes abuse or bully.

             (4)  Each of the following is a protected worker of a person:

                     (a)  an employee of the person;

                     (b)  a commission agent or contractor of the person;

                     (c)  a person who is seeking to become an employee, partner, commission agent or contractor of the person;

                     (d)  an officer or employee of:

                              (i)  a commission agent or contractor of the person; or

                             (ii)  a person who is seeking to become a commission agent or contractor of the person.

             (5)  A person is a protected co-worker of another person if:

                     (a)  the first person is an employee, commission agent or contractor of a third person; and

                     (b)  the other person is an employee, commission agent or contractor of:

                              (i)  the third person; or

                             (ii)  a different person, if the first person and the other person work together in performing the duties of their respective employments, commission agencies or contracts.

Penalties

             (6)  A person who contravenes subsection (1) commits an offence.

Penalty:  30 penalty units.

             (7)  A person who contravenes subsection (1) is liable to a civil penalty.

Civil penalty:          100 penalty units.

23B   Obligations of employers etc.

             (1)  A person is liable to a civil penalty if:

                     (a)  an employee, commission agent or contractor of the person harasses a third person for a prohibited reason, or for reasons that include a prohibited reason; and

                     (b)  the third person is a protected co-worker of the employee, commission agent or contractor because of that employment, commission agency or contract.

Civil penalty:          100 penalty units.

             (2)  Conduct mentioned in paragraph (1)(a) is for a prohibited reason if it is engaged in because the third person:

                     (a)  may volunteer to render defence service; or

                     (b)  is rendering defence service; or

                     (c)  is, or may become, liable to render defence service; or

                     (d)  has previously rendered defence service.

             (3)  Subsection (1) does not apply if the first person takes all reasonable steps to ensure that his or her employees, commission agents and contractors do not harass protected co-workers for prohibited reasons.

Note:          A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection: see section 96 of the Regulatory Powers Act.

Part 4 Employment protection

Defence Reserve Service (Protection) Act 2001

79  Section 7 (definition of absent on defence service )

Omit “section 8”, substitute “section 24A and subsections 28(3) and (4)”.

80  Section 8

Repeal the section.

81  Subsection 10(1) (definition of contract of employment )

Repeal the definition, substitute:

contract of employment includes:

                     (a)  a contract of apprenticeship; and

                     (b)  an arrangement under which a person is employed.

Note:          For employment , see section 7.

82  Division 1 of Part 5 (heading)

Repeal the heading, substitute:

Division 1 Preliminary

83  At the end of Division 1 of Part 5

Add:

24A   Meaning of absent on defence service

                   A member who is employed before starting to render defence service is absent on defence service during any of the following periods:

                     (a)  any period during which the member is travelling from his or her residence to the place at which he or she is required to report for defence service;

                     (b)  any period while he or she is rendering defence service;

                     (c)  the period (if any) starting immediately after he or she ceases to render that service and ending (subject to subsections 28(3) and (4)) immediately before the earlier of the following times:

                              (i)  when the member resumes work (including under Division 3 of this Part) or is reinstated in employment under that Division;

                             (ii)  if the member does not apply to resume work, or to be reinstated in employment, under section 27—30 days after the member ceases to render that service.

84  Division 2 of Part 5 (heading)

Repeal the heading, substitute:

Division 2 Entitlement to be absent during defence service

85  Subsection 25(1)

Omit “, or other arrangement,”.

86  Division 3 of Part 5 (heading)

Repeal the heading.

87  Section 26

Repeal the section, substitute:

26   Member entitled to be absent during defence service

             (1)  A member who is employed before being absent on defence service is entitled to be absent from that employment while the member is absent on defence service.

             (2)  A period during which the member is absent from that employment while absent on defence service is taken not to be a period of employment under the member’s contract of employment unless this Part provides otherwise.

             (3)  Subsection (2) does not apply to a period throughout which the member is taking any type of paid or unpaid leave under the member’s contract of employment, as mentioned in subsection 25(3).

             (4)  This section does not:

                     (a)  affect the operation of section 25; or

                     (b)  limit the ability of a contract of employment to allow a person any type of paid or unpaid leave; or

                     (c)  prevent the termination of a member’s contract of employment in accordance with law for a reason other than an absence mentioned in subsection (1).

Note:          The protections in subsections (1) and (2) cease to apply 30 days after the member ceases to render defence service if the member does not apply to resume work under the contract of employment under section 27 before then: see paragraph 24A(c).

88  Before section 27

Insert:

Division 3 Resuming work after defence service

89  Section 27 (heading)

Repeal the heading, substitute:

27   Applying to resume work after defence service

90  Subsection 27(1)

Omit “whose contract of employment is suspended under section 26 may apply to the employer to resume work under the contract”, substitute “who is absent from his or her employment while absent on defence service may apply to the employer to resume work under the member’s contract of employment”.

91  Subsection 27(3)

Omit “within”, substitute “no later than”.

92  Section 28 (heading)

Repeal the heading, substitute:

28   Employer must allow member to resume work

93  Paragraph 28(1)(a)

Omit “he or she started to render”, substitute “the start of the member’s absence on”.

94  At the end of section 28

Add:

             (3)  If paragraph (2)(a) applies, the member ceases to be absent on defence service at the time the member was to have made himself or herself available for work under the agreement mentioned in that paragraph.

             (4)  If paragraph (2)(b) applies, the member ceases to be absent on defence service :

                     (a)  when the employer informs the member that it was not within the employer’s power to allow the resumption or reinstatement, as mentioned in subparagraph (2)(b)(i); or

                     (b)  if the member accepts the offer mentioned in subparagraph (2)(b)(ii)—when the offered employment starts; or

                     (c)  if the member does not accept the offer—when the member declines the offer, or 30 days after the employer makes the offer, whichever occurs first.

95  At the end of Division 3 of Part 5

Add:

28A   Other rights to resume work not affected

                   This Division does not limit any right of a member to resume work or to be reinstated in employment under:

                     (a)  a contract of employment; or

                     (b)  any law other than this Division.

96  Subsection 30(2)

Before “service”, insert “absence on defence”.

97  Paragraphs 31(3)(a) and (c)

Omit “suspended contract of employment”, substitute “contract of employment with the old employer”.

98  Subsection 61(5) (definition of preservation period )

After “absence on defence service”, insert “(disregarding paragraph 24A(c))”.

99  Before section 77

Insert:

76C   This Act does not limit other protections for members

                   This Act does not limit any protection that is afforded to a member, or to a former member, under any other law.

100  Application of amendments

The amendments made by this Part (other than item 99) apply in relation to an absence on defence service if the absence starts on or after the commencement of this item.

Part 5 Education protection

Defence Reserve Service (Protection) Act 2001

101  Subsection 3(7)

Omit “allows a member to re-enrol in, and resume, a course that the member had to interrupt in order to undertake”, substitute “requires an education institution to make reasonable adjustments for a member who undertakes”.

102  Section 7

Insert:

reasonable adjustment has the meaning given by subsection 38(4).

103  Subsection 37(2)

Repeal the subsection, substitute:

             (2)  Essentially, the Part:

                     (a)  requires a body administering an educational institution to make reasonable adjustments required because a member enrolled in a course at the institution is rendering defence service; and

                     (b)  allows a member to re-enrol in, and resume, a course that was interrupted because the member rendered defence service.

104  Section 38

Repeal the section, substitute:

38   Obligations of body administering education institution

             (1)  This section applies in relation to a member who is enrolled in a course at an Australian education institution before starting to render defence service.

             (2)  The body administering the education institution must make reasonable adjustments to accommodate the member’s defence service.

             (3)  Without limiting subsection (2), the adjustments required by that subsection could involve any of the following:

                     (a)  not failing the member;

                     (b)  recognising assessment or practical work undertaken by the member before starting to render defence service;

                     (c)  allowing the member to defer undertaking or completing assessment or practical work;

                     (d)  refunding or crediting fees paid by or for the member.

             (4)  An adjustment is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the body administering the education institution.

             (5)  In determining whether a hardship that would be imposed on the body administering the education institution would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

                     (a)  the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

                     (b)  the financial circumstances of, and the estimated amount of expenditure required to be made by, the body;

                     (c)  the availability of financial and other assistance to the body.

             (6)  The burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

105  Section 39 (heading)

Repeal the heading, substitute:

39   Education institution must re-enrol member etc.

106  Before subsection 39(1)

Insert:

          (1A)  This section applies in relation to a member who:

                     (a)  is enrolled in a course at an Australian education institution during all or part of the period he or she is rendering defence service; and

                     (b)  does not complete the course before ceasing to render the service; and

                     (c)  applies to re-enrol (if necessary) and to resume the course within 30 days after ceasing to render the service.

107  At the end of section 39

Add:

             (4)  This section does not limit section 38.

Part 6 Jurisdiction of courts

Defence Reserve Service (Protection) Act 2001

108  At the end of paragraph 77(1)(b)

Add “or the Federal Circuit Court of Australia”.

109  At the end of subsection 77(2)

Add “or the Federal Circuit Court of Australia”.

Part 7 Other provisions

110  Acquisition of property

The amendments made by this Schedule do not apply to the extent (if any) to which their operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).