This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 22 August 1996.
Defence Legislation Amendment Bill (No. 1)
Date Introduced: 26 June 1996
House: House of Representatives
Portfolio: Defence Industry, Science and
Commencement: Upon Royal Assent with the exception
of Items 1 to 3 of Schedule 1, which are taken to have commenced on
28 May 1992.
The Defence Legislation Amendment Bill (No. 1) 1996
(the Bill) corrects a reference in the Defence Force Discipline
Act 1982 to offences against the NSW criminal law, to bring
the legislation into line with the 1992 change in status of the ACT
The Bill will amend the Defence Force (Home Loans
Assistance) Act 1990 so as to extend eligibility to members
previously unable to apply for a subsidised loan. Eligibility is
extended by reducing the qualifying period from 6 years to 5 years
and including statutory training as effective service.
The Defence Force Discipline Act 1982
The Defence Force Discipline Act 1982 (the 'DFDA')
establishes a disciplinary regime for the three arms of the Defence
Forces: the Royal Australian Navy; the Australian Army; and the
Royal Australian Air Force.
The DFDA prescribes offences that apply to members of the
Defence Force and to certain civilians (called 'defence civilians')
who accompany the Defence Forces. Part III of the DFDA lists the
offences, which include peculiarly 'military' activities such
- aiding the enemy,
- communicating with the enemy,
- malingering; and
- absent without leave.
There are also general offences, such as:
- negligent performance of duty,
- stealing and receiving,
- resisting arrest and
- giving false evidence.
The existing section 61 of the DFDA makes it an offence for a
defence member or defence civilian to do any activity that would
constitute an offence against the criminal law of the Jervis Bay
Territory, whether the activity occurred within that territory or
somewhere else. This section operates to include a range of
offences not spelled out in the DFDA, including the more serious
offences of murder and rape (although there are certain safeguards
in relation to charging a person with offences, such as treason,
murder, manslaughter and bigamy in that it is necessary to obtain
the permission of the Director of Public Prosecutions to
With respect to section 61 there is currently an anomaly in the
DFDA relating to references to the Crimes Act
1900 of NSW. In fact the relevant law since 28 May 1992
has been the Crimes Act 1900 of the Australian
Capital Territory. This issue is covered in more depth below and
also in the Explanatory Memorandum at pp3-4. The Bill seeks to
retrospectively correct this anomaly to 28 May 1992. The 28 May
1992 was the commencement date of the Crimes Legislation
(Status and Citation) Act 1992 of the Australian
The Judge Advocate General's annual report on the DFDA indicates
that for the period 1 January 1993 to 31 December 1994, no charges
were proceeded with under section 61 of the DFDA. The total trials
conducted in the period 1 January 1994 to 31 December 1994
Air Force 243(1)
No statistics for section 61 charges are available for the
period before that as the earlier Judge Advocate General's reports
do not break down the statistics by the type of charges. However,
there has been at least one use of section 61 since the relevant
date (28 May 1992). This was the Navy Court Martial convened on 13
November 1992 and commencing on 9 December 1992 concerning
allegations of sexual assault on HMAS SWAN(2). However, there was
no conviction recorded in that case and so the retrospective action
of the proposed provision will not affect the case.
In addition to prescribing offences, the DFDA creates tribunals
for the trial, conviction and punishment of such offences.
Depending upon the seriousness of the charge, it may be heard by a
Disciplinary Officer, a Summary Authority, a Commanding Officer, a
Defence Force Magistrate or a Court Martial. The more serious
charges attract penalties including imprisonment, dismissal from
the Defence Force, reduction in rank, detention, loss of seniority
and fines. There are some discrepancies in the sentencing options
for a similar offence, as between the three services. The
Defence Force Discipline Appeals Act 1955 provides
machinery for appeals against, and reviews of, convictions and
punishments. This legislation also deals with ancillary matters
such as the investigation of service offences, trial procedures,
and the serving of sentences.
The Defence Force (Home Loans Assistance) Act 1990
The Defence Annual Report (1994-95) states at p201 that the
total number of personnel employed in Defence, uniformed and
civilian, full-time and part-time as at 20 June 1995, exceeded
106,000 and this cost $3.8 billion (39%) of the $9.7 billion outlay
in 1994-95(3). At p8 of the same report, it is stated that the
Permanent Defence Force strength as at 30 June 1995 was
The Annual Report stated (p8) that in relation to Defence Force
Outlays for Defence Housing in 1994-95 were $217.9m which was
$0.6m less than the Revised Estimate of $218.5m. This variation was
due to lower than expected rental charges partly offset by a
shortfall in Miscellaneous Receipts(5).
The relevant legislation applicable to the Defence Home Owner
Scheme is the Defence Force (Home Loans Assistance) Act
1990. The Defence Housing Authority (DHA), established under
the Defence Housing Authority Act 1987, administers the
scheme for the Department of Defence. Defence Members who have
completed six years of service are eligible to apply for a
subsidised loan of between $10,000 and $40,000. The National
Australia Bank (NAB) and the Commonwealth have an agreement whereby
the Commonwealth provides monthly interest subsidies on the loans
made by the NAB to eligible defence members.
As at 30 June 1995 there were a total of 1,524 subsidy
recipients. The Defence Home Owner Scheme aims to:
- attract and retain Defence Force personnel;
- encourage home ownership during service as a cost effective
alternative to rental assistance; and
- assist in the re-integration of Defence Force personnel into
the community on return to civilian employment(6);
In 1994-95 the Commonwealth paid $1,330,758 in subsidy payments.
In addition, the operational costs of the scheme comprised a
$412,564 annual management fee (paid to DHA by the Department of
Defence) and $53,764 for fees paid by DHA in respect of
applications for 'Entitlement Certificates'. The practice of a
Defence Member applying for an Entitlement Certificate (prior to
applying for a loan) is encouraged by the DHA.
The Defence Housing Authority Act 1987 and the
Defence Force (Home Loans Assistance) Act 1990 are both
currently listed in the Commonwealth Legislation Review Schedule
announced by the Treasurer the Hon. Peter Costello MP on 28 June
1996. The reviews are not due to commence until 1997-98 and 1998-99
The Explanatory Memorandum (p2) estimates that the financial
impact of the proposed chances will:
cost $5.9 million in the financial year 1996/97, rising to $12
million and $16 million in the financial years 1997/98 and 1998/99,
respectively. These costs are to be absorbed within Defence global
Defence Force Discipline Act 1982
Items 1-3 of Schedule 1 of the Bill amend the
definition of a territory offence to reflect the Crimes Act
1900 of the Australian Capital Territory as it applies to the
Jervis Bay Territory rather than the Crimes Act 1900 of
New South Wales.
Item 4 of Schedule 1 ensures that convictions,
orders, punishments or documents made under the DFDA after 28 May
1992 are still valid notwithstanding references in the DFDA to the
Crimes Act 1900 of New South Wales.
One of the objectives of having a catch all provision like the
existing section 61 (described above in the background) is that
defence members can be prosecuted under the DFDA for offences
committed overseas whilst on deployment or exercises. However,
section 61 linked offences in the Jervis Bay Territory to the DFDA,
which defines such offences by referring to the NSW Crimes Act
1900. Since the ACT Crimes Legislation (Status and
Citation) Act 1992 commenced, the relevant law should have
been cited as the Crimes Act 1900 of the Australian
Capital Territory in its application to the Jervis Bay Territory.
This is because the Jervis Bay Territory Acceptance Act
1915 makes the laws in force in the Australian Capital
Territory apply to the Jervis Bay Territory. Prior to 1992, the NSW
Crimes Act 1900 was in force in the ACT (and thus in the
Jervis Bay Territory). However, since 1992 the ACT Crimes Act
1900 has applied there. The DFDA was not amended in 1992 to
reflect the change of status of the ACT criminal law.
As a result there may be doubts about the lawfulness of any
convictions obtained under section 61 (which is not ascertainable
from the punishment statistics available to date from the annual
Judge Advocate General's reports). The Bill seeks to
retrospectively validate such prosecutions (if indeed any) by
providing that the amendments should be taken to have commenced on
28 May 1992 (the date that the ACT Crimes Legislation (Status
and Citation) Act 1992 commenced).
Defence Force (Home Loans Assistance) Act 1990
Items 5-13 inclusive of Schedule 1 of the Bill
amend the provisions of the Defence Force (Home Loans
Assistance) Act 1990 (the DF(HLA) Act) to reduce the period of
service required to become eligible for the home loan from the
current 6 years down to 5 years of either full-time or composite
Item 14 of Schedule 1 extends the definition of
eligible persons to include members of the Reserve Forces or
Emergency Forces, who complete the requisite training period and
are not otherwise covered by the Defence Service Homes Act
Item 18 of Schedule 1 defines composite
service. This applies to people who undertake some form of
statutory training with one of the services before becoming a
full-time member. For example, trainees would accrue 0.625 of a
year towards their 5 years qualifying service, for each year that
they spent undergoing statutory training.
Items 24-28 of Schedule 1 will increase the
amount of the available loan from $40,000 to $80,000.
Items 29-40 of Schedule 1 amend the provisions
regarding the payment of subsidy on a loan so as to extend the
class of eligible people. The requirement for 'effective full-time
service' has been replaced with the term 'subsidy service' which
includes statutory training obligations as well as full-time
The subsidy amount is 'calculated on the average monthly
interest to be paid over the life of a 25 year loan - the monthly
subsidy is 40% of this.'(8)
Item 44 of Schedule 1 shields existing
arrangements for 'subsidised borrowers' from the new
Items 42-43 of Schedule 1 increase the maximum
amount of a loan available to a couple with a joint entitlement
from $80,000 to $160,000.
- Judge Advocate General Report for the period 1 January to 31
December 1994 on the Defence Force Discipline Act 1982.
- Report of the Senate Standing Committee on Foreign Affairs,
Defence and Trade Sexual Harassment in the Australian Defence
Force , August 1994, pp102-104.
- Defence Annual Report 1994-95 p201.
- Ibid p8.
- Ibid p257-258.
- Explanatory Memorandum at p2.
- Defence Annual Report 1994-95 p257.
Susan Downing Ph. 06 277 2784
16 August 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
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Last updated: 16 August 1996
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