Bills Digest no. 88 2005–06
Defence (Road Transport Legislation Exemption) Bill
2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Defence (Road Transport Legislation
Exemption) Bill 2005
Date introduced: 30 November 2005
House: Senate
Portfolio: Defence
Commencement: Royal Assent
To provide a legislative basis for the Defence Road Transport
Exemption Framework which details exemptions from the operation of
state and territory road transport laws that will be applied
uniformly across Australia in certain circumstances.
Background
Section 123 of the Defence Act 1903 (the Defence Act)
provides immunity from certain state and territory laws for members
of the Australian Defence Force (ADF). Subsection 123(1) states
that:
(1) a member of the Defence Force is not bound by any law of a
State or Territory:
(a) that would require the member to have permission (whether in
the form of a licence or otherwise) to use or to have in his or her
possession, or would require the member to register, a vehicle,
vessel, animal, firearm or other thing belonging to the
Commonwealth; or
(b) that would require the member to have permission (whether in
the form of a licence or otherwise) to do anything in the course of
his or her duties as a member of the Defence Force.
The present Bill limits that immunity by establishing a Defence
Road Transport Exemption Framework that details the exemptions and
processes that will be applied uniformly across the states and
territories to support the conduct of ADF road transport
operations.
The Exemption Framework was negotiated between the ADF and state
and territory road transport authorities, with the assistance of
the National Transport Commission. According to the Minister s
second reading speech on this Bill, [t]he Exemption Framework
establishes the specific categories of exemptions that will apply
for principal ADF routes used in exercises, operations and
day-to-day activities .(1) In addition, the Exemption
Framework is intended to ensure the integrity of civilian
infrastructure and facilities used by the ADF.(2) To
this end, the Exemption Framework matches load limits on vehicles
with the current capacity of roads and bridges. It imposes mass
limits for ADF vehicles and combinations, including their loads, as
well as mass limits for individual tyres, wheels, axles and axle
groups. The Exemption Framework also imposes rules about the size
of a load, how far it may project from the vehicle, warning signals
for certain projections, and securing loads.
The Exemption Framework details the specific licensing and road
rules exemptions for ADF personnel when they are engaged in defence
related activities (defined subclause 5(3) below). The ADF has a
system of accredited training for its professional drivers. The
basic drivers course includes training in the carriage of dangerous
goods and explosives, and drivers are required to requalify every
three years. Where state and territory legislation imposes a
requirement for a special licence, and the ADF trains to a similar
standard, then compliance with state and territory requirements is
deemed to occur.(3) The Exemption Framework provides
that Defence Members are not required to produce a State or
Territory licence when driving an authorised Defence vehicle on
Defence business .(4) However, ADF members are required
to carry and produce on demand, their current Defence licence,
their Driver Qualification Log, and the vehicle authorisation and
task form. These three documents will provide evidence that the
Defence member is trained on the equipment being operated, is on an
authorised task, and details of the member s movements and routes
travelled.(5) The Exemption Framework further provides
(at 3.2.2) that when a civilian member of Defence is subject to the
Defence Force Discipline Act 1982, then they should have
the same road transport licensing status and obligations as a
Defence member.(6)
Defence licences are cancelled if the holder s civilian licence
is cancelled in any state of territory, or if the holder s
employment with the Department of Defence is terminated. Similarly,
a Defence licence will be suspended if the holder s civilian
licence is suspended in any state or territory, or if the holder
fails to maintain currency of their Defence licence where
particular currency requirements exist (at 3.2.3).(7)
Defence licences are also reviewed when the holder is transferred
or moves to another position within Defence.
These exemptions will also apply to personnel from visiting
foreign defence forces acting in accordance with an arrangement
approved by the ADF.(8)
Some provisions have still to be agreed. These are detailed on
pages 107 and 108 of the current version of the Exemption
Framework. One matter has to do with the road rules applying to
Defence Service Police vehicles which may be recognised for escort
duties or traffic duty. A note in the framework records that the
most significant difference between Defence Service Police vehicles
and civilian Police vehicles is that Defence vehicles are not, and
will not be authorised to conduct pursuit operations on public
roads. Where there exists a need for such pursuit, civilian police
vehicles will be requested to assist.(9)
The Exemption Framework is to be maintained by the National
Transport Commission and the text is to be made available for
public viewing on the National Transport commission s website at
http://www.ntc.gov.au/ .
In 1998 the Government introduced road transport exemptions for
the ADF to limit the immunity contained in the Defence Act and
replace it with a more specific exemption regime. At that time, an
amendment was made to the National Road Transport Commission
Act 1991 (NRTC Act), providing the ADF with a broad exemption
from Commonwealth, state and territory road transport laws in
special defence related circumstances. This was to be done through
the Federal Minister for Transport conferring powers on the Chief
of the Defence Force to make exemptions in specific circumstances
and for particular vehicle categories. These exemptions were never
implemented because the regime prescribed was dependent on the
adoption by the states and territories of model road transport
legislation, which did not occur. In 2002, during a review of the
NRTC Act,(10) the Department of Transport and Regional
Services stated that the Defence exemptions did not fit into the
policy framework underpinning the replacement legislation.
Subsequently, the NRTC Act was repealed on 14 January 2004 and
replaced by the National Transport Commission Act 2003
(NTC Act). The pre-existing Defence exemption provisions were not
carried forward to the new legislation.
In his second reading speech on the present Bill, the Minister
was at pains to point out that this Bill does not impose any
requirements on state and territory governments; rather, it
reflects the ADF s willingness to work with the states and
territories on these matters.(11) However, it should be
noted that the exemptions do not commence in individual states and
territories until they are notified in the respective jurisdiction
s Government Gazette or similarly published.(12)
Central to how the exemption regime will operate are various
terms or concepts contained in the Bill. A number of terms are
define d in clause 3, and are derived from
definitions of similar terms in the Exemption
Framework.(13) These include
defence contractor in the framework
means any civilian who is, or whose services are, contracted,
sub-contracted, leased, rented or hired by the Department of
Defence to perform, or provide an authorised Defence task or
service, who is not a Defence Member or Australian Public Servant
.(14)
defence employee means a civilian
employee of the Department of Defence .(15)
defence vehicle means any vehicle that
is owned by, or leased or hired by, the Department of Defence. It
can be plated with Defence, Commonwealth, or civilian number plates
. (16)(A later definition of
vehicle says that it includes the vehicle
s equipment and any substances that the vehicle is carrying that
are essential for its operation .(17))
A definition of specific engineering
exemption is not included in Chapter 9
(Interpretations) of the Exemption Framework. It is defined by the
Bill, in relation to a defence vehicle, to mean an exemption of
that kind that the vehicle has under the Exemption Framework .
The aim of the Bill is, of course, to exempt the ADF from state
and territory road transport laws in particular situations. Under
clause 4, a road transport law is
defined as either:
- a law relating to the use of vehicles in a place to which the
Exemption Framework applies, or
- a law declared to be road transport law by relevant
regulations.
Regulations may however also declare that a state or territory
law falling within the clause 4 definition is
not a road transport law for the purposes of this
Bill.
Sub-clause 5(1) provides that the ADF, members
of the ADF, and civilians serving with the ADF, will be exempt from
state and territory road transport laws for anything done, or
omitted to be done for a defence-related purpose,
provided that the thing is done or omitted in accordance with the
Exemption Framework. A more limited exemption is provided by
sub-clause 5(2) for defence contractors and
defence employees who are operating a defence vehicle that has a
specific engineering exemption. For the exemption to apply, the
vehicle must be being used for a defence-related purpose and the
exemption only applies to the extent of the matters to which the
specific engineering exemption relates. According to the
Explanatory Memorandum, [d]efence contractors and defence employees
will still be required to comply with all the other State and
Territory road transport laws that apply to them, such as the
requirement to hold a valid licence and comply with the road rules
.(18)
Sub-clause 5(3) provides a broad definition of
defence-related purposes or the purposes
for which the exemptions may apply. They include ADF operations and
preparations in connection with the defence and security of
Australia, the provision of civil aid and humanitarian assistance,
emergency and disaster relief, and support to community activities
of national or international significance . This last purpose could
include the forthcoming Commonwealth Games in Melbourne.
Paragraph 5(3)(l) provides for the operation of
the ADF in connection with the protection of the interests of the
Commonwealth or of a state or territory from domestic violence, if
the state or territory has applied for that protection. Domestic
violence is a term used in section 119 of the Constitution
which provides that the Commonwealth shall protect every State
against invasion and, on the application of the Executive
Government of the State, against domestic violence . This provision
is reflected in Part IIIAAA of the Defence Act 1903 which
allows the Governor-General to call out the Permanent Forces, and
such Emergency and Reserve Forces as may be necessary, for the
protection of a State against domestic violence. The power to order
the call out is subject to a proviso that the Emergency and Reserve
Forces shall not be called out or utilized in connexion with an
industrial dispute .(19)
Clause 6 provides that the exemptions will also
apply to the armed forces of other countries and members of those
forces, provided that their operations are carried out under an
arrangement approved by the ADF, and are in accordance with the
Exemption Framework.
Clause 7 provides that the regime created the
Exemption Framework (and implemented by this Bill) overrides any
existing immunity under section 123 of the Defence Act. However it
also provides that any ADF operations not specifically covered by
the Exemption Framework will retain their existing immunity under
section 123 or any part of the Defence Act and other Defence
powers.
Concluding comments
According to the introduction to the Exemption Framework, its
success will depend on the implementation, maintenance and the
development of the framework in the coming years.(20)
The exemptions will be implemented by the states and territories in
accordance with their particular policies and processes. The
exemptions will commence in each state and territory on the day on
which they are notified in the respective jurisdictions
Gazettes, or equivalent. For the ADF, the exemptions will
be implemented through Defence Road Transport Instructions.
The Exemption Framework will be maintained by the National
Transport Commission in conjunction with the ADF. This is to ensure
that the framework remains relevant and meets the requirements of
the ADF and the states and territories. The ongoing maintenance of
the framework will allow for those exemptions yet to be agreed to
be further negotiated, and for the refining of exemptions to meet
the future needs of the ADF and the states and territories. The
effect of the Bill is that any changes to, or expansions of the
Exemption Framework will become the law without any further
involvement of the Commonwealth Parliament or any legislative
requirement from the Minister to report on any changes or
expansions.
- Sen the Hon Robert Hill, Second Reading Speech , Defence (Road
Transport Legislation Exemption) Bill 2005, Senate,
Hansard, 30 November 2005, p. 2.
- Defence Road Transport Exemption Framework Version 1a,
Dated 23/10/05, p. 3. I would like to acknowledge the help of the
Department of Defence Legal Branch in providing me with a copy of
the latest version of the Exemption Framework ahead of its
publication on the NTC website.
- ibid., Chapter 3, p. 37-38.
- ibid., 3.2.1 (1), at page 37.
- ibid., p. 38.
- The Exemption Framework, at p. 115, defines a Defence civilian
who is subject to the Defence Force Discipline Act 1982 as
a person (other than a Defence member) whom
(a) with the authority of an authorised officer,
accompanies a part of the Defence Force that is:
(1) outside
Australia; or
(2) on operations against an enemy; and
(b) has consented, in writing, to subject himself
or herself to Defence Force discipline while so accompanying that
part of the Defence Force.
- ibid., p. 38.
- ibid., p.10. Clause 6 of this Bill provides the legal basis for
this provision.
- ibid., p. 107.
- Details of the Terms of Reference for the review and
the composition of the review panel were provided to Parliament in
a written answer to a Question on Notice from Senator Kerry O Brien
on 25 February 2002 (Question No. 139) which was answered on 14 May
2002. Senate, Hansard, 14 May 2002, p. 1471.
- Sen the Hon Robert Hill, Second Reading Speech , Defence (Road
Transport Legislation Exemption) Bill 2005, Senate,
Hansard, 30 November 2005, p. 2.
- Defence Road Transport Exemption Framework Version 1a,
Dated 23/10/05, p. 9.
- The terms vary slightly between the Bill and the current
version of the Exemption Framework. For example, defence contractor
in the Bill is defence civilian contractor in the framework.
- ibid., p. 115.
- ibid., p. 115.
- ibid., p. 116.
- ibid., p. 120.
- Explanatory Memorandum, Defence (Road Transport Legislation
Exemption) Bill 2005, p. [3].
- Elizabeth Ward, Call out the troops: an examination of the
legal basis for Australian Defence Force involvement in non-defence
matters , [Parliamentary Library] Research paper no. 8
1997-98, pp. 5-6.
- Defence Road Transport Exemption Framework Version 1a,
Dated 23/10/05, p. 6.
Rosemary Bell
3 February 2006
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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Published by the Parliamentary Library, 2005.
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