Bills Digest no. 89 2005–06
Defence Legislation Amendment
Bill (No. 1) 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
Endnotes
Contact Officer & Copyright Details
Passage History
Defence Legislation
Amendment Bill (No. 1)
2005
Date Introduced: 17 August 2005
House: Senate
Portfolio: Defence
Commencement: Schedules 1 4 commenced on the
day the Bill received Royal Assent (6 October 2005); Schedule 5
commenced retrospectively on 1 January 2005.
To update the criminal law applying to the defence forces,
abolish the Retention Benefit available to eligible defence
personnel, and make a number of other minor amendments to defence
legislation.
N.B. This digest was prepared after the passing of
the Bill into law.
The Defence Legislation Amendment Bill (No. 1) 2005 ( the Bill )
was introduced into the Senate on 17 August 2005 and passed on 6
September 2005. It was introduced into the House of Representatives
on the same day, was debated in the Main Committee, and was passed
without amendment on 15 September 2005. The Bill received Royal
Assent on 6 October 2005, becoming Act No. 121 of 2005.
The Bill attracted little media comment, and debate in the
Parliament tended to focus on issues of military justice,
recruitment and retention, rather than on the specific provisions
of the Bill.(1)
Schedule 1 amended the Defence Force Discipline Act
1982 to update references to the criminal law of the
Australian Capital Territory. These changes were necessitated by
the repeal of the Police Offences Act 1930
(ACT),(2) the renumbering of the Crimes Act
1900 (ACT),(3) and the passing of the Criminal
Code 2002 (ACT). The need for these changes was outlined as
follows when the Bill was introduced:
The DFDA imports civil criminal offences into that
Act as service offences, in order to extend the ambit of the Act to
circumstances that might otherwise not be prosecuted, and to give
greater efficacy to disciplinary law. The mechanism currently used
to achieve this is the incorporation of the laws of the
Commonwealth, the ACT Crimes Act 1900 and the ACT Police Offences
Act 1930 as they apply in the Jervis Bay Territory.
Since the introduction of the Territory offence
provisions, changes have occurred to the incorporated legislation
such that some updating of the DFDA is essential. Most concerning
is that the ACT in 2001 and 2002 enacted Criminal Code legislation
based on the Commonwealth Model Criminal Code, and since 2002 it
has repealed numerous offences from its Crimes Act in favour of the
Criminal Code. The net effect of this is that offences such as
computer theft, arson and blackmail can no longer be prosecuted by
the ADF under the DFDA. Furthermore, it is anticipated that
offences such as murder, manslaughter and assault will also move to
the Criminal Code by the end of 2005. Also of concern is the fact
that the Police Offences Act was repealed in 1996, and references
to it are therefore ineffective. The proposed Bill will remove
redundant legislation references and refer instead to the criminal
law in force in the Jervis Bay Territory from time to
time.(4)
Item 4 replaced references to the Crimes Act
and the Police Offences Act with a reference to any other law in
force in the Jervis Bay Territory . (Under the Defence Force
Discipline Act, offences by service personnel against civilian
criminal law as in force in the Jervis Bay Territory may be tried
by defence tribunals. The criminal law in force in the Jervis Bay
Territory is for the most part the same as that in force in the
Australian Capital Territory.)
In the Senate debate on the Bill, the Labor Party s position on
Schedule 1 was stated as follows:
The first amendment, for all intents and purposes,
is simply intended to keep the Defence Force Discipline Act up to
date. Because that act imports provisions from the Australian
Capital Territory Criminal Code for disciplinary purposes, it
necessarily needs to be constantly reviewed. At present, it has
clearly fallen behind, meaning that it is inadequate in many areas
and arguably ineffective. To the extent that this amendment brings
the Defence Force Discipline Act into line and makes it consistent,
we support the amendment.(5)
Schedule 2 replaced the term investigating officers in the
Defence Act 1903 with the term inquiry officers , to make
it clear that the administrative inquiries conducted under the
Defence Act are different from the criminal investigations
conducted by investigating officers under the Defence Force
Discipline Act.
Schedule 3 amended the Naval Defence Act 1910 to align
the position of Navy Cadets with that of their Army and Air Force
counterparts .(6) Previously, Navy Cadet recruits had to
be aged 12 17, and a person ceased to be a Navy Cadet on reaching
the age of 19. Now, the upper age limit for joining the
Army, Air Force or Navy Cadets is uniformly set at 20, and a person
ceases to be a cadet at age 21.
Senator Bishop, in commenting on this Schedule for the Labor
Party, stated:
The second amendment consistency of age provisions
for cadets across Army, Navy and Air Force is sensible. In our
view, this is simple housekeeping.(7)
Schedule 4 repealed Part 8 of the Military Superannuation
and Benefits Act 1991, by which eligible members of the
Australian Defence Force who had served for 15 years received a
bonus ( Retention Benefit ), equivalent to one year s salary, if
they re-enlisted for another five years. Existing members of the
Military Superannuation and Benefits Scheme, however, will continue
to be eligible for the Retention Benefit.
The
Review of Australian Defence Force Remuneration
2001 (the Nunn Review ) found that the Retention
Benefit had
the potential to interfere with the operation of
other targeted measures, send conflicting messages to ADF members,
cause friction within the remuneration system and complicate
effective delivery of measures to address
retention.(8)
In introducing the Bill, Senator Ellison stated in relation to
this Schedule:
The Military Superannuation and Benefits Act 1991
(the Benefits Act) is to be amended to repeal Part 8 so as to
remove the retention benefit currently available for certain
Australian Defence Force (ADF) members of the benefits scheme.
Part 8 of the Benefits Act currently provides a
bonus of one year s salary to eligible members of the Military
Superannuation and Benefits scheme who, on reaching 15 years of
continuous effective service, agree to complete a further 5 years
service. The Review of Australian Defence Force Remuneration 2001
(the Nunn review) considered that issues of attraction to and
retention in the Services would be better suited for determination
by the Navy, Army and Air Force Service Chiefs based on priority
needs and linked to capability. An automatic retention bonus
rigidly tied up to a number of years of service, at a fixed rate,
is no longer regarded as appropriate.
Despite the repeal of Part 8 of the Benefits Act,
it is proposed that access to the retention benefit would continue
for current members for as long as they remain eligible but would
not be available to new members joining the ADF after the date of
the commencement of the proposed amendments.
These amendments are required to ensure that ADF
pay arrangements provide an effective, efficient and flexible
remuneration framework consistent with reforms in the wider public
and private sectors.(9)
Senator Bishop gave the Opposition view of these superannuation
changes as follows:
The particular provision, though historical, has
proven problematic for the reasons identified in Mr Nunn s report
some years ago. That is not to say that, in the future, retention
bonuses might not be a relevant tool in retaining skill, going back
to the original root cause of dissatisfaction. This, however,
should never again be a general policy and it should be highly
targeted at areas of need. Perhaps it should also be determined in
advance that such bonuses might have, if necessary, ad hoc
application. Perhaps they should be more related to the labour
market circumstances of the time and not categorised and treated as
an ongoing condition of service. More flexibility in this respect
is clearly needed. This was openly discussed and conceded by
officials at the last round of estimates in May.
As mentioned in the minister s speech, these
circumstances will vary considerably between the services.
Accordingly, we support the amendment, but at the same time we
encourage continued attention to employment and retention
incentives where there are serious shortfalls which affect the
effectiveness of the ADF. I add that this is not a new problem, as
some increasingly seek to argue. Recruitment and retention in the
ADF has long been a problem. As a proper examination of the
statistics shows, in the last nine years there has been little
change achieved in recruitment targets. The excuse of a tight
labour market, whilst convenient, particularly in the last two or
three years, does not fit a proper trend analysis of the statistics
in this area.
In a nutshell, we believe it is appropriate for
the government to make careers in the ADF more attractive.
(10)
Schedule 5 updated ten Acts administered by the Minister for
Defence to reflect the passage of the Legislative Instruments
Act 2003. The Acts were: Defence Act 1903, Defence Force
Discipline Act 1982, Defence Force (Home Loans Assistance) Act
1990, Defence Force Retirement and Death Benefits Act 1973, Defence
Forces Retirement Benefits Act 1948, Defence (Special Undertakings)
Act 1952, Explosives Act 1961, Military Rehabilitation and
Compensation Act 2004, Military Superannuation and Benefits Act
1991, Naval Defence Act 1910.
The Legislative Instruments Act established a comprehensive
regime for the registration, tabling, scrutiny and sunsetting of
Commonwealth legislative instruments ,(11) such as
regulations, determinations, order and rules. Schedule 5 of the
Bill amended these Acts to change references to instrument in
writing to legislative instrument and to delete redundant
references to the Acts Interpretation Act 1901 and the
Statutory Rules Publication Act 1903, thus bringing the
amended Acts within the ambit of the Legislative Instruments
Act.
The commencement of Schedule 5 was backdated to 1 January 2005,
the date on which the Legislative Instruments Act came into
force.
- Senate,
Debates, 6 September 2005; House of Representatives,
Debates, 15 September 2005.
- Repealed by the Law Reform (Abolitions and Repeals) Act
1996 (ACT).
- Renumbered by the Crimes Legislation Amendment Act
2001 (ACT).
- Sen. C. Ellison,
Second reading debate: Defence Legislation Amendment Bill (No. 1)
2005 , Senate, Debates, 17 August 2005, p. 1.
- Sen. M. Bishop,
Second reading debate: Defence Legislation Amendment Bill (No. 1)
2005 , Senate, Debates, 6 September 2005, p. 2.
- Defence Legislation Amendment Bill (No. 1) 2005,
Explanatory Memorandum, p. 5.
- Sen. Mark Bishop,
ibid., p. 3.
- Dept. of Defence,
Review of Australian Defence Force Remuneration 2001, p.
106.
- Sen. C. Ellison,
ibid., p. 2.
- Sen. Mark Bishop,
ibid., p. 4 5.
-
Explanatory Memorandum, p. 6.
Patrick O'Neill
1 February 2006
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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