Bills Digest No. 119,
2016–17
PDF version [718KB]
Nicole Brangwin and David Watt
Foreign Affairs, Defence and Trade Section
Paula Pyburne
Law and Bills Digest Section
27
June 2017
Contents
Purpose of the Bill
Structure of the Bill
Committee consideration
Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Financial implications
Schedule 1—testing for prohibited
substances
Commencement
Background
Key issues and provisions
Nature of prohibited substances
Testing requirements
Consequences of a positive test
Disregarding test results
Schedule 2—reserve service
Commencement
Background
Protection review
Role of the Reserves
Expanding the protections
Basic protections
Additional protections
Protection against discrimination
Expanding the protection
Penalties
Existing penalties
Imposing civil penalties
Human Rights Committee
Employment protection
Absent on defence service
Applying to resume work
Education Protection
Obligations of education institution
Requirement to re-enrol member
Financial liability protection
When the protection starts
Bankruptcy protection
Loans and guarantees to returning
members
Enforcement and remedies
Overview
Complaints and mediation
Scrutiny of Bills Committee
Civil penalty provisions
Victimisation
Schedule 3—Australian Geospatial
Intelligence Organisation
Commencement
Background
Key issues and provisions
Expanding AGO’s functions
Providing products and assistance to
other bodies
Charging a fee
Schedule 4—Australian Defence
Force Cover Act 2015
Commencement
Key issues and provisions
Medical discharge
Definition of eligible child
Split payments of pension
Death benefit
Concluding comment
Date introduced: 29
March 2017
House: House of
Representatives
Portfolio: Defence
Commencement: Various
dates as set out in the body of this Bills Digest
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2017.
Purpose of
the Bill
The purpose of the Defence Legislation Amendment (2017
Measures No. 1) Bill 2017 (the Bill) is to enact four separate measures being:
- to
expand the conditions under which a prohibited substance positive result must
be disregarded
- to
put in place greater protections for Reserve members in relation to their
employment and education
- to
transfer the hydrographic, meteorological and oceanographic functions of the
Royal Australian Navy to the Australian Geospatial-Intelligence Organisation
and
- to
align provisions in the Australian Defence
Force Cover Act 2015 (ADFC Act) with those in other military superannuation
schemes and to clarify the definition of an eligible child of a member or
invalid.
Structure
of the Bill
The Bill contains four Schedules which reflect each of
those measures:
- Schedule
1 amends the Defence
Act 1903 in relation to a prohibited substance positive result—in
particular when it arises from appropriate usage of over the counter medication
or substances administered or dispensed by authorised persons
- Schedule
2 amends the Defence
Reserve Service (Protection) Act 2001 (DRS Protection Act) to
ensure that all Reservists are eligible for the full range of protections
available under that Act in respect of their employment and education. It also
makes a minor contingent amendment to the Regulatory Powers (Standardisation
Reform) Act 2017[1]
(if enacted)
- Schedule
3 amends the Intelligence
Services Act 2001, the Navigation Act 2012
and the Telecommunications
Act 1997 to allow for the transfer of specified functions to the
Australian Geospatial-Intelligence Organisation and
- Schedule
4 makes minor amendments to the ADFC Act.
As the matters covered by each of the Schedules are
independent of each other, the relevant background, stakeholder comments and
analysis of the provisions are set out under each Schedule number.
Committee
consideration
Selection
of Bills Committee
At its meeting of 10 May 2017 the Senate Selection of Bills
Committee determined that the Bill not be referred to Committee for inquiry and
report.[2]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
commented on aspects of the amendments to the DRS Protection Act set out
in Schedule 2 to the Bill.[3]
A discussion about those comments is under the heading for Schedule 2 below.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[4]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (Human
Rights Committee) has made comments about the amendments in Schedule 2 to the
Bill that impose civil penalties in certain circumstances.[5]
Those comments are canvassed under the heading for Schedule 2 below.
Financial
implications
According to the Explanatory Memorandum, ‘the amendments
in the Bill will have no additional impact on Commonwealth expenditure or
revenue’.[6]
Schedule
1—testing for prohibited substances
Commencement
The provisions of Schedule 1 to the Bill commences on Proclamation
or six months after Royal Assent, whichever occurs first.
Background
According to the Explanatory Memorandum to the Bill:
The amendment [in Schedule 1] is needed because Defence
members and Defence civilians who test positive for a prohibited substance
solely because they took a prescribed or dispensed or over-the-counter
medication are currently required by the Act to show cause why they should
remain in the Service or why the arrangement in which they were engaged as a
Defence civilian should not be terminated. If the same medication was
administered, supplied or prescribed by a qualified medical practitioner, the
Act allows the member’s result to be appropriately treated as if it was
negative.[7]
Key issues
and provisions
Nature of
prohibited substances
Currently, Part VIIIA of the Defence Act sets out
the legislative framework within which Defence tests defence members and
defence civilians for the use of prohibited substances.
Section 93 of the Defence Act defines a prohibited
substance as either a narcotic substance (within the meaning
given by the Customs
Act 1901) or any substance that is a prohibited substance
because of a determination. The relevant determination is the Defence (Prohibited
Substances) Determination 2015. The Determination provides that the
following are prohibited substances for the purposes of Part VIIIA of the Defence
Act:
Item 1 in Part 1 of Schedule 1 of the Bill repeals
the definition of narcotic substance. Item 2 updates the
definition of prohibited substance so that it refers only to a
substance which is covered by a determination. This means that the relevant
determination is the Defence
(Prohibited Substances) Determination 2015. If additional substances are
identified as requiring prohibition, the current Determination can be repealed
and replaced with an updated list of prohibited substances.
Testing
requirements
The existing law provides that the Chief of the Defence
Force may, by written instrument, determine that a person is an authorised
person for the purposes of Part VIIIA of the Defence Act.[8]
The authorised person supervising the test must give a written notice to the
person who is to provide a sample before the sample is provided, about how the
sample will be dealt with.[9]
Consequences
of a positive test
Where a prohibited substance test in respect of a person
returns a positive test result the ‘relevant authority’ (which is the Chief of
the Defence Force for all defence civilians and defence members below the rank
of Major‑General and the Governor-General for members above this rank[10])
must give the person written notice of the positive test result and invite the
person to give a written statement of reasons as to:
- if
the person is an officer—why the officer’s appointment should not be terminated
- if
the person is a defence member other than an officer—why the defence member
should not be discharged or
- if
the person is a defence civilian—why the arrangement under which the person is
a defence civilian should not be terminated.[11]
Item 6 of Part 2 of Schedule 1 to the Bill repeals
the definition of relevant authority in section 93, as under the Bill any functions
currently undertaken by the relevant authority will be performed by the Chief
of the Defence Force (such as inviting the person who tested positive to
provide a statement of reasons and receiving and considering that statement).
Item 7 of Part 2 of Schedule 1 to the Bill inserts
the definition of terminate[12]
into the Defence Act to put beyond doubt that a reference to terminating
the service of a person means to terminate the service of a defence member or
to terminate the arrangement under which a person is a defence civilian.
In keeping with the clarification of the command structure
of the ADF by the Defence Legislation
Amendment (First Principles) Act 2015 the Chief of Defence Force
(CDF) is specified as the person responsible for a decision to dismiss a member
who has been the subject of a positive test. This power can be delegated.
Item 13 of Part 2 of Schedule 1 to the Bill repeals
sections 101–104 of the Defence Act and inserts proposed section 101
which simplifies the process leading to the termination of a member of the ADF.
This aligns the provisions of the Defence Act with those contained in
the Defence
Regulations 2016.
Disregarding test results
Schedule 1 of the Bill amends Part VIIIA of the Defence
Act so that Defence can use Defence Instructions to broaden and enlarge the
circumstances under which a positive test result for a prohibited substance can
be set aside.[13]
The Statement of Compatibility with Human Rights notes the
positive human rights implications of the Bill. It cites article 12 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR)[14]
which relates to the right to health and notes that access to properly obtained
medication is important in relation to this right. In addition, the Statement
of Compatibility notes article 6, which is the right to work and the right not
to be deprived of work unfairly and states that the new provisions mean that
Defence members are less likely to be deprived of work unfairly.
The Statement of Compatibility with Human Rights also
states that the right to privacy contained in the International Covenant on
Civil and Political Rights (ICCPR)[15]
will be promoted by allowing the Defence Instructions to create a framework in
which members will not have to show cause why their employment should not be
terminated if they have been subject to a positive test result resulting from
prescription or over the counter medications.
Currently, a positive test result is to be disregarded if
an authorised person is satisfied that the presence of any prohibited substance
revealed by the testing was wholly attributable to something done in accordance
with the directions or recommendations of a legally qualified medical
practitioner.[16]
Item 9 of Schedule 1 to the Bill repeals and replaces
subsection 98(2) of the Defence Act to require a positive test result to
be set aside in circumstances which will be specified in a Defence Instruction.
The effect of the amendment will address the current inconsistency which was
identified in the Explanatory Memorandum as set out under the heading ‘Background’
above.
Schedule
2—reserve service
Commencement
All the provisions in Schedule 2 to the Bill—with the
exception of items 73 and 74—commence on the 28th day after Royal Assent. The
amendments in items 73 and 74 are contingent on the enactment of the Regulatory
Powers (Standardisation Reform) Act 2017.[17]
The Regulatory Powers (Standardisation Reform) Bill 2016 was introduced into
the Senate on 12 October 2016 and into the House of Representatives on 9
February 2017.
Background
Protection
review
In April 2007, the Protection Review (chaired by Major
General Neil Wilson) was initiated and, at that time, aimed to assess the
‘appropriate levels of protection in [Reserve members’] civilian occupations
without burdening employers with unnecessary compliance’.[18]
It is likely that the review outcomes were not publicly announced as it
commenced in an election year, which resulted in a change of government. While
the three subsequent Defence white papers (2009, 2013 and 2016) noted the importance
of Reservists to the Australian Defence Force’s (ADF’s) overall capability, there
was no explicit mention of changes to Reserve policy based on findings from the
Protection Review.[19]
Ten years later, the outcomes of this review now provide the basis for the
amendments proposed in the Bill.
According to the Explanatory Memorandum to the Bill, the
Protection Review:
... concluded that, overall, the Act was working well
and achieving its objectives. However, the Protection Review recommended a
number of enhancements to the Act.[20]
The amendments in Schedule 2 to the Bill are said to
implement many of these recommendations.[21]
Unfortunately, the Protection Review does not appear to be in the public domain
and the Explanatory Memorandum to the Bill is silent as to the number of recommendations
in total and whether the measures in Schedule 2 are a complete or partial
response to those recommendations.
Role of the
Reserves
In 2001, the number of ADF Reservists was 19,835, which
was 22.4 per cent below the budgeted estimate.[22]
By 2007, the number had increased to 23,810.[23]
The Defence Annual Report 2015–16 reported Reserve force figures in a
bit more detail, showing that 19,338 Reserve members received pay for days
served.[24]
The report showed that while the number of service days increased from the
previous year, the number of Reservists undertaking paid service had decreased.[25]
Additionally, 926 Reserve members were on continuous full-time service (Navy
375, Army 440 and Air Force 111).[26]
Of these, the number deployed on operational service was not included.
The 2016 Defence White Paper noted that since 1999,
approximately 14,000 Reserve members have deployed on operations in Australia
and overseas: around 18 per cent of all deployed ADF personnel.[27]
The ADF’s increased operational tempo has seen a greater use of Reserves to support
large scale national security events such as the Olympics and the Commonwealth
Games; humanitarian assistance and disaster relief operations such as the 2009
Victorian bushfires and 2011 Brisbane floods; and regional deployments
including Timor Leste and Solomon Islands.[28]
Recent changes to the overall ADF workforce structure and
policies, as part of Project Suakin, involve the implementation of a Total
Workforce Model, which includes changes to the Service Categories to allow
greater flexibility for Permanent and Reserve members.[29]
These structural adjustments have been positively acknowledged by Reserve
advocates such as Paul Irving (National President, Defence Reserves Association—DRA)
who stated it ‘has raised awareness of the Reserve capability’.[30]
However, the DRA remains sceptical about the degree of difference it will make
to the overall use of Reserve members.[31]
The DRA has been critical of the low priority given to Reserves. As Irving
pointed out in April 2016:
Despite political advice emanating from the 2015 National DRA
[Defence Reserves Association] Conference that the proposed amendments to the Defence
Reserve Service (Protection) Act 2001 were moving through the “system” and
should be considered by Parliament in the ‘autumn’ session (early 2015), this
did not happen. Further, there is still no indication when the amendments will
be considered by Parliament. Whilst it took Defence 12 months to endorse the
findings of the July 2008 Garde review into the Protection Act, it is an
indictment on both major political parties that more than seven years later
these relatively non-controversial amendments, which should receive bi-partisan
support, have still not been considered by Parliament. This is another
indication of the lack of priority given by Government and Opposition to
Reserve issues.[32]
In 2011, the Labor Government spoke of proceeding with
amendments to the DRS Protection Act, which would ‘ensure that all
Reservists performing Defence service receive employment and education
protection’.[33]
The amendments would also protect Reserve members from workplace harassment or
detriment resulting from Reserve service.[34]
While the Bill is expected to be broadly welcomed by the
Reserve community, it has taken a long time to get to this point.
Expanding
the protections
The DRS Protection Act was established to support a
greater need to use the Reserves by providing ‘for the protection of the
reserves in their (primary) employment and education. It facilitates their
return to civilian life’.[35]
Basic
protections
Currently the DRS Protection Act sets out the
entitlements and prohibitions that apply in relation to people who are
rendering or have rendered, defence service as members of the
Reserves.[36]
In particular:
- Part
5 provides that the member’s employment status and entitlements, such as accrued
leave, are protected[37]
- Part
6 protects members from having their partnership dissolved while they are
absent on defence service[38]
and
- Part
7 allows a member to re-enrol in, and resume a course of education that was
interrupted because they undertook defence service.[39]
Those protections are not currently available to persons
undertaking certain kinds of voluntary continuous full time service.[40]
Items 1, 2, 8 and 9 of Part 1 of Schedule 2 to the
Bill omit references to a member undertaking ‘certain kinds of voluntary
continuous full time service’ so that the protections in Parts 5, 6 and 7 will
be available to members undertaking all kinds of defence service. Item 44
of Part 2 of Schedule 2 to the Bill amends the definition of defence
service to encompass service (including training) as a member of the
Reserves.
Additional
protections
Currently the DRS Protection Act provides additional
protections for members who are subject of a call out.[41]
In particular:
- Part
8 postpones the debts that a member is liable to pay or would otherwise fall
due after a member starts to render service as a result of a call out[42]
- Part
9 protects members from bankruptcy proceedings while the member is rendering
service following a call out[43]
and
- Part
10 allows a member who has rendered defence service after a call out to get
access to loans and guarantees to enable him or her to resume civilian life
after returning from that service.[44]
Items 11 and 19 of Part 1 of Schedule 2 to the Bill
extend the existing additional protections in Parts 8 and 9 of the DRS
Protection Act to a member who is rendering operational service. Item 15
inserts the definition of operational service as:
- defence
service in circumstances involving one or more of the following:
- war,
warlike operations or a time of defence emergency (within the meaning of the Defence
Act)
- defence
preparation
- peacekeeping
or peace enforcement
- assistance
to Commonwealth, State, Territory or foreign government authorities and
agencies in matters involving Australia’s national security or affecting
Australian defence interests
- support
to community activities of national or international significance
- civil
aid, humanitarian assistance, medical or civil emergency or disaster relief and
- includes
defence service prescribed by the regulations and
- defence
service by a member involving preparing to render particular operational
service or decompressing after rendering operational service as set out above.[45]
Protection against discrimination
Part 4 of the DRS Protection Act (existing sections
14–23) makes it unlawful to refuse to give work to a person on the grounds that
the person is rendering, has rendered, or might in the future render, defence
service.[46]
Part 4 currently provides protection against the conduct listed below where it
is carried out for a prohibited reason:
- dismissing
an employee[47]
- hindering
an employee from serving in the Reserves[48]
- refusing
to offer a person a partnership[49]
- hindering
a fellow partner from serving in the Reserves[50]
- refusing
to engage a commission agent[51]
- terminating
the contract of, or discriminating against, a commission agent for a prohibited
reason[52]
- refusing
to engage a contractor[53]
- terminating
the contract for services, or discriminating against, a contractor in relation
to the terms and conditions of a contract for services.[54]
A prohibited reason is one which relates to a person’s
past, present or future rendering of defence service.[55]
The Bill expands the prohibition against discrimination to also include
harassment.
Expanding
the protection
Item 76 of Part 3 in Schedule 2 to the Bill inserts
proposed subsection 14(2A) which provides that it is also unlawful for a
person to harass a worker, partner or co-worker of the person on that ground
that the person is rendering, has rendered or might render defence service. In
support of this new provision, item 78 in Part 3 of Schedule 2 to the
Bill inserts proposed sections 23A and 23B into the DRS Protection
Act.
Proposed subsection 23A(1) of the DRS Protection
Act prohibits a person from harassing another person for a prohibited
reason (or for reasons that include a prohibited reason) if the other
person is any of the following:
- a protected worker of the person
- a
partner in a partnership in which the person is also a partner
- a protected co-worker of the person.
For the purposes of the prohibition, harass
includes abuse or bully.[56]
Conduct is a for a prohibited reason if it is engaged in because
the other person may volunteer to render defence service, is rendering, or may
become liable to render defence service or has previously rendered defence
service.[57]
A protected worker of a person is:
- an
employee of the person
- a
commission agent or contractor of the person
- a
person who is seeking to become an employee, partner, commission agent or
contractor of the person
- an
officer or employee of a commission agent or contractor of the person or an
officer or employee of a person who is seeking to become a commission agent or
contractor.[58]
A person is a protected co‑worker of
another person if the first person is an employee, commission agent or
contractor of a third person and the other person is an employee, commission
agent or contractor of the third person or 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.[59]
The Explanatory Memorandum states that this definition ‘incorporates
relationships where people are working together, even if they are not strictly
employed by the same person’.[60]
Proposed subsection 23B(1) of the DRS Protection
Act makes a person vicariously liable for the actions of their employee,
commission agent or contract, if they harass a protected co-worker for a
prohibited reason.
Penalties
Existing
penalties
Currently a breach of the prohibitions against
discrimination may be a criminal offence, punishable by a maximum
penalty of 30 penalty units.[61]
The new prohibition against harassment contains a penalty in equivalent terms.[62]
At the time of writing this Bills Digest, section 4AA of
the Crimes Act
1914 provides that a penalty unit is equivalent to $180. However, upon
the commencement of the Crimes Amendment (Penalty Unit) Act 2017 the
value of a penalty unit will increase to $210 with effect from 1 July 2017.[63]
This means that the penalty will increase from a maximum of $5,400 to a maximum
of $6,300.
Item 70 of Schedule 2 to the
Bill inserts proposed section 78A into the DRS Protection Act to make clear
that a person who contravenes a conduct provision commits an
offence. The physical elements of an offence for the purposes of applying
Chapter 2 of the Criminal Code
(which sets out general principles of criminal responsibility) are set out in
the relevant conduct provision.
Imposing
civil penalties
The Bill does two things in relation to civil penalties:
- it
inserts civil penalty provisions in respect of each of the prohibitions against
discrimination (including the new prohibition against harassment[64])
discussed above—that penalty being 100 penalty units[65]
- it
provides that the civil penalty provisions set out in the DRS Protection Act
are enforceable under Part 4 of the Regulatory Powers Act. A discussion
of this matter is set out below under the heading ‘Enforcement and remedies’.
Human
Rights Committee
The Human Rights Committee commented on the liability provisions.[66]
The effect of the Bill is that certain prohibited conduct that is a criminal
offence under the DRS Protection Act is also made into a civil penalty
provision. The Human Rights Committee considered the factors which
international jurisprudence has identified should be taken into
account in deciding whether the civil penalty provisions introduced by the Bill
may be considered to be criminal in nature for the purposes of international
human rights law. As this was not clear from the explanatory material,
including the Statement of Compatibility with Human Rights, the Human Rights
Committee sought advice from the Minister for Defence to clarify the position.
The Minister responded to the Human Rights
Committee as follows:
The civil penalties introduced in the Bill will only apply in
employment and similar contexts, and not to the public at large. For the most
part, the proposed civil penalties deal with the conduct of employers. The
purpose of the civil penalties is to promote the right to safe and healthy
working conditions, and to discourage behaviour in civilian employment-like environments
that could dissuade a person from providing Australian Defence Force (ADF)
Reserve service. The civil penalties are not intended to be punitive or
deterrent in nature but, rather, they are intended to bring employers to the
discussion table with the employees and Defence, so that an agreement can be
reached through mediation.[67]
The Minister also responded to the Human Rights
Committee’s concerns about the severity of the penalty:
The maximum civil penalty levels proposed are consistent with
the range and type of person who are likely to engage in the relevant conduct.
The proposed civil penalty provisions are, for the most part, concerned with
the conduct of employers and similar, which can range in size from small
businesses through to large enterprises, with a corresponding range in turnover
and profit. The maximum level of the civil penalty, 100 penalty units, needs to
allow for this variation, providing sufficient discouragement even for the
largest employers. It is important from a defence capability perspective to
discourage conduct by employers and others that could work to dissuade people
from joining the ADF Reserves or from providing ADF Reserve service. A person
is far less likely to provide ADF Reserve service if they are afraid of adverse
consequences in their civilian employment.[68]
The Human Rights Committee concluded that given the
particular regulatory context and the purpose and severity of the penalties,
‘the criminal process rights contained in articles 14 and 15 of the ICCPR
are unlikely to apply’.[69]
Employment
protection
Part 5 of the DRS Protection Act (sections 24–33)
protects the status and entitlements, such as accrued leave, for members who
render defence service while subject to employment obligations.[70]
Absent on
defence service
Item 83 of Part 4 in Schedule 2 to the Bill inserts proposed
section 24A into the DRS Protection Act which sets out the periods
during which a member who is employed before starting to render defence service
is absent on defence service.[71]
These are:
- 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
- any
period while he, or she, is rendering defence service
- the
period (if any) starting immediately after he, or she, ceases to render that
service and ending immediately before the earlier of the time that the member
resumes work and if the member does not apply to resume work—30 days after the
member ceases to render that service.
The current drafting of the DRS Protection Act does
not specifically state that Reserve members are entitled to be absent from
their employment on defence service—although it does provide that an employer
must not require the member to take leave concurrently with all or part of his
or her absence on defence service.[72]
To better reflect this entitlement item 87 of Part 4 in Schedule 2 to
the Bill repeals and replaces section 26 of the DRS Protection Act to
state in positive terms that a member is entitled to be absent on defence
service and that the period of absence is not to be counted as a period of
employment under the member's contract of employment unless Part
5 of the DRS Protection Act states otherwise.[73]
Applying to
resume work
Consistent with this position, items 89–91 amend
the heading and the text of existing section 27 of the DRS Protection
Act so that a member who is absent from his, or her, employment while on
defence service may apply to the employer to resume work under the member’s
contract of employment. That application must be made by the member no later
than 30 days after ceasing to render that defence service.[74]
Existing section 28 of the DRS Protection Act
provides that as soon as reasonably practicable after receiving an application
to resume work, the employer must allow the member to resume work in the same
capacity in which he, or she, was employed immediately before their absence and
ensure that the member’s terms and conditions of employment are at least as
favourable as those that would have applied but for the defence service.
Existing subsection 28(2) contains two exceptions to that
general rule. Item 94 of Schedule 2 to the Bill inserts proposed
subsections 28(3) and (4) to qualify those exceptions.
The amendments operate first, so that if the employer
agreed to the resumption or reinstatement, but the member did not make
himself, or herself, available for work as agreed between them and did not have
a reasonable excuse for not doing so—then the member ceases to be absent
on defence service at the time the member was to have been available
for work under the agreement.[75]
The amendments operate second, in circumstances where
because of changed circumstances since the member was employed, it was not
within the employer’s power to allow the resumption or reinstatement, or the
employer offered to employ the member in a capacity, and under terms and
conditions, that were the most favourable that it was reasonable or practicable
to offer him or her. In that case the member ceases to be absent on
defence service:
- when
the employer informs the member that it was not within the employer’s power to
allow the resumption or reinstatement or
- if
the member accepts the offer of alternative employment—when the offered
employment starts or
- if
the member does not accept the offer—on the earlier of the time the member
declines the offer or 30 days after the offer is made.[76]
Education
Protection
Part 7 of the DRS Protection Act (sections 37–39)
currently allows a member to re-enrol in and resume, a course that the member
had to interrupt in order to undertake defence service. The amendments in the
Bill add the additional requirement that a body administering an education
institution must make reasonable adjustments for a member who is
enrolled in a course at the institution and is rendering defence service.[77]
Obligations
of education institution
Item 104 of Schedule 2 to the Bill repeals and
replaces section 38 of the DRS Protection Act to set out the obligations
of a body administering an Australian education institution to a member who is
enrolled at that institution before starting to render defence service. The
Bill lists adjustments such as not failing the member, recognising assessment or
practical work undertaken before the member started to render defence service,
allowing the member to defer undertaking or completing assessment or practical
work and refunding, or crediting, fees already paid.[78]
For the purposes of Part 7 of the DRS Protection Act, an adjustment is a
reasonable adjustment unless making it would impose unjustifiable
hardship on the body administering the education institution.[79]
Requirement
to re-enrol member
Currently section 39 of the DRS Protection Act requires
that a body administering an Australian education institution must not exclude
the member from a course on the grounds that the member did not complete a
requirement of the course (including any assessment) while rendering defence
service or because of having rendered defence service. Item 106 of
Schedule 2 to the Bill inserts proposed subsection 39(1A) to put beyond
doubt that the protections in section 39 apply to a member who is enrolled at
an Australian education institution at a time that he, or she, is also rendering
defence service, who does not complete the course before ceasing to render the
service and who applies to re-enrol and resume the course within 30 days after
ceasing to render the service.
Financial
liability protection
Part 8 of the DRS Protection Act (sections 40–61) currently
operates to postpone debts that a member is liable to pay and that would
otherwise fall due after the member starts rendering defence service as a
result of a callout. Importantly, under the changes made by the Bill, this Part
also applies to members rendering full time operational service.
Item 24 of Part 1 in Schedule 2 to the Bill repeals
and replaces sections 41–44 of the DRS Protection Act and replaces them
with proposed sections 40A to 44. Proposed subsection 40A defines the
term financial arrangement as being any one of the following:
- a
secured or unsecured loan
- a
hire purchase agreement
- an
agreement to buy something (including land)
- an
agreement to lease something (including land)
- a
guarantee.
Items 25, 27–28, 30, 33, 36 and 38 make
consequential amendments to Part 8 of the DRS Protection Act to amend
existing references to an agreement to references to a financial
arrangement.
When the
protection starts
Part 8 applies to:
- a
liability of a member (or their dependent) who renders defence service to make
a payment under a financial arrangement if the liability arose before the start
day of the defence service[80]
- a
liability of a member (or their dependent) who renders defence service where
the liability arose when the member or their dependent exercised an option
under the financial arrangement to buy or lease something where the option was
granted before the start day[81]
- a
liability of a member (or their dependent) to pay rates or other taxes in
respect of land which arose before the start day of the service.[82]
However, there are some exceptions, including that the
protection does not apply where there is a pre-existing court order enabling a
party to a financial arrangement to enforce any security under the arrangement.[83]
Bankruptcy
protection
Part 9 of the DRS Protection Act (sections 62–64) currently
operates to protect members from bankruptcy proceedings while the member is rendering
defence service following a callout. The effect of the amendments to Part 9 of
the DRS Protection Act is to protect members from bankruptcy proceedings
while the member is rendering defence service with effect from the start day of
rendering full time operational service. This means that the protection is no
longer subject to the member having been called out.
Loans and
guarantees to returning members
Part 10 of the DRS Protection Act (sections 65–72) currently
allows for a member who has rendered defence service after callout to get
access to loans and guarantees to enable him, or her, to resume civilian life
after returning from that service.
Item 42 of the Bill amends existing subsection 65(2)
of the DRS Protection Act to remove a reference to ‘being called out’.
The amendment creates an internal inconsistency in that it appears at first
blush to expand the protection in Part 10 to any member who has rendered
defence service.
However:
- no
corresponding amendment is made to existing subsection 65(1)
- proposed
table item 7 in section 11 of the DRS Protection Act (as amended by item
19) provides that the loans and guarantees protections contained in Part 10
apply to continuous full time services as a result of a call out and
- proposed
subsection 13(1) (as amended by item 20) provides that Part 10 is to
apply in relation to continuous full time service that a member renders as a
result of a call out.
That being the case, item 42 is likely to require
amendment before the Bill is passed.
Enforcement
and remedies
Part 11 of the DRS Protection Act (sections 73–76) provides
for civil enforcement and other remedies.
Item 65 of Part 2 in Schedule 2 to the Bill inserts
proposed Divisions 1A—Overview of Part—and 1B—Complaints and
mediation—into Part 11.
Overview
Proposed section 72A in new Division 1A is
self-explanatory in that it provides a clear overview of the intended operation
of an amended Part 11.
Complaints
and mediation
Currently the Office of Reserve Service Protection,
established by the Defence
Reserve Service (Protection) Regulations 2001 (the DRS Protection
Regulations) is responsible for receiving, mediating and investigating
complaints about an alleged contravention of the DRS Protection Act. However,
there is no provision within the DRS Protection Act to make, or to investigate,
complaints about an alleged contravention. Proposed section 72B is
inserted into new Division 1B to explicitly allow for regulations to be made to
provide for such processes.
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee expressed some concern
that proposed section 72B provides for regulations to be made about the processes
for making and investigating complaints and for mediating disputes. Of concern
to the Committee was:
It appears that the intent of proposed section 72B is to
ensure that there is clear legislative authority to make the DRS (Protection)
Regulations. This is demonstrated by the application provisions in subitem
72(4) which are designed to ensure that “complaints made or actions taken under
the regulations prior to commencement ... are taken to be complaints made or
actions taken under the regulations made for the purposes of new subparagraph
72B(1)(a)”.[84]
In addition, the Committee noted that item 71:
... seeks to amend subsection 81(2) of the DRS Protection Act
to allow the regulations to prescribe penalties of up to 50 penalty units and
civil penalties of up to 60 penalty units for offences against and contraventions
of the regulations. Currently, the maximum penalty is 10 penalty units.[85]
The view of the Scrutiny of Bills Committee is that significant
matters, such as complaints and mediation processes (compliance with which can
be enforced through offence and civil penalty provisions), should be included
in primary legislation unless a sound justification for the use of delegated
legislation is provided. The Scrutiny of Bills Committee requested advice from the
Minister in relation to those matters.[86]
The Minister responded to the Scrutiny of Bills Committee
stating:
The complaints and mediation scheme relating to defence
reserve service is currently specified in the Defence Reserve Service
(Protection) Regulations 2001 (the Regulations), which are made under the Defence
Reserve Service (Protection) Act 2001
(the Act). This has been the case since 2001.
The intent of the proposed measures in the Bill, which would
amend the Act if passed, is to implement
outstanding recommendations from a 2007 review of the Act, as well as some
minor consequential matters.
The review gave no consideration to moving the complaints and
mediation scheme into the principal legislation, so this was not considered
when the Bill was drafted. Further, there has been no consultation with affected
stakeholders, including potentially employer groups, for this type of change.
The complaints and mediation scheme has, for the most part, been operating effectively since
its inception in 2001.
The review made quite limited recommendations about the
complaint and mediation scheme, which is why the proposed amendments relating
to that scheme are limited ...
Defence will review the complaints and mediation scheme being
moved from the regulations into the principal legislation following
implementation of the Bill and prior to the Regulations sunset date of 1
October 2019.[87]
Civil
penalty provisions
As stated above, the DRS Protection Act provides
that certain conduct is prohibited and currently provides that such conduct may
constitute an offence. Under the Bill, such conduct may also render a person
liable to a civil penalty.
Item 69 of the Bill inserts proposed section 76A
to provide that a civil penalty provision is enforceable under the Regulatory Powers (Standard
Provisions) Act 2014 (Regulatory Powers Act).
The Regulatory Powers Act contains a standard suite
of provisions containing investigative, compliance monitoring and enforcement
powers which can be applied to individual pieces of Commonwealth regulatory
legislation. The standard provisions in the Regulatory Powers Act are
based on powers which are commonly available to many Commonwealth regulatory
agencies in their various pieces of governing legislation.[88]
The Regulatory Powers Act does not have a direct
legal effect, in the sense of conferring powers on regulatory agencies, or
imposing duties or liabilities on regulated entities. Rather, its provisions
have effect, as in this case, where an existing Act is amended, to apply the standard
provisions of the Regulatory Powers Act to a particular regulatory
scheme.
Legislation applying the provisions of the Regulatory
Powers Act to an individual regulatory scheme is commonly referred to as triggering
legislation. Proposed section 76A is a triggering provision—its purpose
is to incorporate the standard terms of the Regulatory Powers Act into
the DRS Protection Act without having to reproduce them in full.
Victimisation
Proposed section 76B provides that
a person must not subject, or threaten to subject, another person to any
detriment for reasons that include that the person has made a complaint, has
given information or documents or brought proceedings under the DRS
Protection Act. Contravention amounts to an offence the maximum penalty for
which is 30 penalty units. In the alternative a civil penalty up to a maximum
of 100 penalty units will apply.
Schedule
3—Australian Geospatial Intelligence Organisation
Commencement
The provisions in Schedule 3 to the Bill commence on the day
after the Defence Legislation Amendment (2017 Measures No. 1) Act 2017 receives
Royal Assent.
Background
In the lead up to the 2013 Federal election, the Coalition
committed to appointing ‘a high-profile team to undertake a first-principles
review of the Department of Defence’s structure and major processes’.[89]
The focus of that review was to be on minimising bureaucracy and maximising
front line resources.[90]
Consistent with that promise, in August 2014, the Minister
for Defence appointed the team to undertake the First Principles Review of
Defence.[91]
The provisions of Schedule 3 to the Bill implement a
recommendation of the First Principles Review (the Review) that Defence
consolidate its various geospatial intelligence functions.[92]
The Review found:
Geospatial information management is currently
under-resourced, with poorly coordinated investment, limited leadership,
obscure accountability, low management prioritisation and disaggregated
thinking about strategy and direction. Current, planned and future Australian
Defence Force platforms and operations are all critically reliant on integrated
geospatial data and services. The remediation of this key enabler is urgent.[93]
The Review suggested that greater coordination between the
various defence geospatial functions would deliver better services through the
‘integration of the associated production and distribution systems and stronger
professional linkages between the maritime, land, and aerospace geospatial
intelligence domains’.[94]
Key issues
and provisions
Expanding
AGO’s functions
Existing section 6B of the Intelligence Services Act
sets out the functions of the Defence department known as the Australian
Geospatial-Intelligence Organisation (AGO).[95]
Those functions are currently limited to activities relating to geospatial and
imagery intelligence.
The provisions of Schedule 3 to the Bill expand the
functions of the AGO in a number of ways. First, items 4 and 5 of Schedule
3 amend paragraphs 6B(a)–(c) and (e) of the Intelligence Services Act to
include hydrographic, meteorological and oceanographic activities within the
functions of the AGO.
Next, item 5 of Schedule 3 to the Bill inserts proposed
paragraph 6B(1)(ea) into the Intelligence Services Act so that it is
a function of the AGO to provide to any persons or bodies (including
Commonwealth authorities and State authorities)[96]
assistance in relation to the performance by the persons or bodies of emergency
response functions, safety functions, scientific research functions, economic
development functions, cultural functions and environmental protection
functions, provided:
- the
provision of the assistance is incidental to the performance by AGO of its
other functions
- the
assistance is capable of being conveniently provided by the use of resources
that are not immediately required in performing AGO’s other functions and
- the
assistance is capable of being conveniently provided in the course of
performing AGO’s other functions.
Finally, item 6 of Schedule 3 to the Bill inserts proposed
paragraph 6B(1)(h) to add the functions currently carried out by the
Australian Hydrographic Service under the Navigation Act 2012
to the AGO. Those functions are:
- to
be responsible for the provision of hydrographic services required by the
Safety Convention[97]
- to
collect, compile and collate hydrographic data
- to
maintain and disseminate hydrographic and other nautical information and
nautical publications and
- to
maintain and disseminate nautical charts, including authorising charts for use
in Australian waters.[98]
Items 12–15 of Schedule 3 to the Bill make minor
amendments to the Navigation Act to rename the Australian Hydrographic
Service as the Australian Hydrographic Office. The functions of the Australian
Hydrographic Office are unchanged.[99]
Providing products
and assistance to other bodies
Currently, it is a function of the AGO under paragraph 6B(e)
of the Intelligence Services Act to provide certain products and assistance
to Commonwealth authorities, State authorities and bodies approved in writing
by the Minister.
Item 5 of Schedule 3 to the Bill repeals and
replaces paragraph 6B(e) to remove the need for the AGO to seek Ministerial
approval each time it wishes to provide information or assistance to other
bodies. In addition, item 8 of Schedule 3 to the Bill inserts proposed
subsection 6B(2) into the Intelligence Services Act to specify the
bodies to whom imagery and other geospatial, hydrographic, meteorological and
oceanographic products and assistance in relation to the production of those
products may be provided under proposed paragraph 6(1)(e).
The range of bodies to whom these services can be provided
is expanded to include a foreign person or entity and any other person or body provided
that it is consistent with the Commonwealth’s power under the trade and
commerce power in 51(i) of the Constitution
or the postal, telegraphic, telephonic and other like services power in section
51(v) of the Constitution.
Charging a
fee
Historically, the AGO has not charged fees for the
provision of non-intelligence services. However, proposed subsection 6B(4)
(inserted by item 8) will permit the AGO to charge a fee in relation to
non-intelligence products provided under proposed paragraphs 6B(1)(e), (ea) and
(h) of the Intelligence Services Act. This section does not apply to
intelligence products.
Item 16 makes a minor amendment to the Telecommunications
Act to ensure that the terminology used is consistent with the Intelligence
Services Act.
Schedule 4—Australian
Defence Force Cover Act 2015
Commencement
The provisions in Schedule 4 to the Bill commence on the
day after the Defence Legislation Amendment (2017 Measures No. 1) Act 2017
receives Royal Assent.
However, the application provisions at the end of Parts 1
and 2 of Schedule 4 to the Bill provide that the amendments in those Parts
apply or are taken to have applied on and after 1 July 2016.[100]
The application provision at the end of Part 3 of Schedule 4 to the Bill
provides that the amendment in that Part applies in relation to a decision of
the Commonwealth Superannuation Corporation (CSC) made after the commencement
of the Defence Legislation Amendment (2017 Measures No. 1) Act 2017.[101]
Key issues
and provisions
The provisions in Schedule 4 to the Bill amend the ADFC
Act. Speaking in respect of the originating Bill to the ADFC Act, Member
for Gilmore, Ann Sudmalis stated that it:
... establishes a statutory death and invalidity benefits
scheme that applies to ADF Super members and to people who would have been ADF
Super members but for choosing another scheme to which Defence is going to
contribute ... The government recognises that, as a result of the unique nature
of military service, it is difficult for ADF members to obtain death and
invalidity cover at a reasonable cost. ADF cover addresses this issue by
ensuring all ADF personnel who are members of ADF Super have full death and
invalidity cover. The cover provides the same level of death and invalidity
cover as is provided to members of the current [Military Superannuation and
Benefits Scheme].[102]
The amendments in Schedule 4 provide for:
- a
member who resigned from the ADF and later found that he, or she, could have
been medically discharged to apply to the CSC to have their mode of discharge
reassessed and
- an
updated definition of eligible child.
Medical discharge
Item 16 of Part 1 in Schedule 4 to the Bill inserts
proposed section 31A into the ADFC Act so that members who resign
from the ADF are deemed to have been medically discharged because of physical
or mental impairment if the CSC is later satisfied that such grounds existed at
the time that the person resigned.
Currently section 18 of the ADFC Act sets out the
rules to be followed by the CSC in making a determination of the percentage of
a person’s incapacity for civil employment. Section 19 of the ADFC Act
provides that the CSC must classify the person as Class A (at least 60 percent
incapacity), Class B (at least 30 percent, but less than 60 percent) or Class C
(less than 30 percent) according to the person’s incapacity.
Item 3 of Schedule 4 to the Bill inserts proposed
subsections 18(2A) and 18(2B) into the ADFC Act so that where a
member is deemed to have been medically discharged, the CSC must, as soon as
reasonably practicable, determine the percentage of the person’s incapacity for
civil employment at the time of the deemed medical discharge.[103]
If the CSC classifies the person as Class A or Class B, then the CSC may at
that time, also determine the percentage of the person’s incapacity for
civil employment at any time, or times, after the person’s deemed discharge.[104]
Importantly, the matters to which the CSC must have regard in determining the
percentage of a person’s incapacity for civil employment remain unchanged.
Those matters are:
- the
person’s vocational, trade and professional skills, qualifications and
experience
- the
kinds of civil employment that a person with those skills, qualifications and
experience might reasonably undertake
- the
degree to which the physical or mental impairment that is the basis of the
person’s medical discharge has diminished his, or her, capacity to undertake
those kinds of civil employment and
- if
the determination is the second or later determination of that percentage—the
person’s experience and civil employment history since the last determination
of that percentage.[105]
Definition of eligible child
Where a member of the ADF is medically discharged because
the CSC has classified him, or her, as having a significant degree of
incapacity for civil employment, an invalidity pension is payable. If the
invalid dies while receiving a pension, leaving either a surviving spouse or
eligible children, a pension is payable to the surviving spouse or, if there is
no spouse, to those children.[106]
Item 21 in Schedule 4 to the Bill amends the
definition of eligible child by removing the requirement that the
person was wholly or substantially dependent on the invalid or member when he,
or she, died.[107]
Instead, being wholly or substantially dependent upon the invalid or member at
the time of their death will be only one of the factors which may be taken into
account in determining whether a person is a child of the invalid
or member.[108]
Items 22, 25 and 30 amend the ADFC Act to
remove references to an eligible child being ’wholly or substantially dependent
on the spouse of an invalid’.[109]
This ensures consistency with the updated definition of eligible child.
Split
payments of pension
Section 41 of the ADFC Act recognises that a
covered ADF member may have more than one surviving spouse or may have eligible
children who are being cared for by someone other than a surviving spouse. In
that case, it is for the CSC to determine whether any increase in the pension
due to the spouse pension child supplement percentage[110]
is to be paid to someone other than the surviving spouse. Item 33 of
Schedule 4 to the Bill inserts proposed subsections 41(2A) and (2B) into
the ADFC Act to specify that the person to be paid may be one of the
eligible children or another surviving spouse of the member. Item 35 inserts
proposed subsection 41(4) into the ADFC Act, which operates where
one of the surviving spouses dies—‘to ensure that the pension increase goes to
the right beneficiary’.[111]
Death benefit
Currently, under Part 3 of the ADFC Act a benefit
is payable for the death of a covered ADF member.[112]
Generally, the benefit is paid as a lump sum equivalent to 25 percent of the
amount the member would have earned if he, or she, had continued to serve in
the ADF at the salary payable at the time of his, or her death, until turning
60[113]—although
this rate is increased when there are one or more eligible children.[114]
Where there is no surviving spouse when a covered ADF member dies, a single
lump sum payment of death benefit is made to or for the eligible children.[115]
Where there is neither a surviving spouse nor eligible
children immediately after a covered ADF member dies, a single payment of death
benefit may be paid to the beneficiaries or estate of the member.[116]
In that case, section 39 of the ADFC Act requires the CSC to determine
which one or more of those persons is to have an amount of benefit paid to, or
for, them.[117]
Item 31 of Schedule 4 to the Bill amends section 39 to put beyond doubt
that the amount to be paid to more than one person is equal to the maximum that
would have been payable to a single surviving spouse. Item 32 inserts proposed
subsection 39(5) into the ADFC Act so that where a determination has
been made in relation to two or more persons that determination does not change
in the event that one of them dies.
Part 3 of Schedule 4 to the Bill repeals and replaces
paragraph 58(2)(a) of the ADFC Act to clarify the circumstances in which
a person may request reconsideration of a decision by the CSC. The request must
be made in writing and submitted within 30 days after the CSC gives notice of
the decision or within such further period as the CSC, in special
circumstances, allows.
Concluding
comment
Each of the Schedules of the Bill amend statutes to put in
place four separate and unconnected regulatory measures.
Of note is the internal inconsistency arising from the
amendment in item 42 of Schedule 2 to the Bill. It is likely that the
amendment will need to be redrafted for the greater clarity during the relevant
debate in the Parliament.
[1]. Parliament
of Australia, ‘Regulatory
Powers (Standardisation Reform) Bill 2016 homepage’, Australian Parliament
website.
[2]. Senate
Selection of Bills Committee, Report,
5, 2017, The Senate, 11 May 2017.
[3]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, The Senate, 10 May 2017, pp. 21–22.
[4]. The
Statement of Compatibility with Human Rights can be found at pages 4–15 of the Explanatory
Memorandum to the Bill.
[5]. Parliamentary
Joint Committee on Human Rights, Report,
4, 2017, 9 May 2017, pp. 7–11.
[6]. Explanatory
Memorandum, Defence Legislation Amendment (2017 Measures No. 1) Bill 2017,
p. 3.
[7]. Ibid.,
pp. 4–5.
[8]. Section
93A of the Defence
Act 1903.
[9]. Defence
Act, section 96.
[10]. See
definition of ‘relevant authority’ in section 93 of the Defence Act.
[11]. Defence
Act, section 100.
[12]. Defence
Act, section 93.
[13]. Section
11 of the Defence Act provides that for the purposes of the
administration of the Defence Force, the Secretary and the Chief of the Defence
Force together may issue instructions known as Defence Instructions.
[14]. International
Covenant on Economic, Social and Cultural Rights, done in New York on
16 December 1966, [1976] ATS 5 (entered into force for Australia on
10 March 1976).
[15]. International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994).
[16]. Defence
Act, section 98.
[17]. Parliament
of Australia, Regulatory
Powers (Standardisation Reform) Bill 2016 homepage, Australian Parliament
website. For information on that Bill, see C Raymond, Regulatory
Powers (Standardisation Reform) Bill 2016, Bills digest, 42, 2016–17,
Parliamentary Library, Canberra, 22 November 2016.
[18]. P
Lindsay, Major
review of defence reserves legislation announced, media release, 17
April 2007; and P Charlton, ‘Judgment
reserved’, Courier Mail, 21 April 2007, p. 65.
[19]. Australian
Government, Defence white paper
2016, White paper, February 2016, pp. 148–149; Australian Government, Defence white
paper 2013, White paper, May 2013, p. 40; and Australian Government, Defence Australia
in the Asia Pacific century: force 2030, White Paper, May 2009, pp.
90–91.
[20]. Explanatory
Memorandum, Defence Legislation Amendment (2017 Measures No. 1) Bill 2017, p.
21.
[21]. Ibid.
[22]. Department
of Defence (DoD), Defence
annual report: 2000–01, DoD, Canberra, 2001, p. 307.
[23]. DoD,
Defence
annual report: 2006–07, DoD, Canberra, 2007, p. 212.
[24]. DoD,
Defence
annual report: 2015–16, DoD, Canberra, 2016, pp. 92–93.
[25]. Ibid.
[26]. Ibid.,
p. 89.
[27]. Australian
Government, 2016 defence white paper, op. cit., p. 148.
[28]. DoD,
‘Global operations: home’,
DoD website; and Defence Reserves Support, Defence
reserves support handbook, DRS website, April 2017, p. 7.
[29]. DoD,
‘The
service spectrum: ADF total workforce model’, DoD website.
[30]. P
Irving (Defence Reserves Association), Submission
to Joint Standing Committee on Foreign Affairs, Defence and Trade, Review of
the Defence annual report 2015–16, n.d., p. 2.
[31]. Ibid.,
pp. 2 and 8–9.
[32]. Defence
Reserves Association (DRA), The
Australian reservist: the official journal of the Defence Reserves Association,
issue 26, DRA, Melbourne, April 2016, p. 4.
[33]. D
Feeney (Parliamentary Secretary for Defence), ADF
reserves capability: where to now?: address to the Defence Reserves Association
national conference, Keswick Barracks, speech, 20 August 2011.
[34]. Ibid.
[35]. MA
Neilsen and S O’Neill, Defence
Reserve (Protection) Bill 2000, Bills digest, 71, 2000–01, Department
of the Parliamentary Library, Canberra, 27 November 2000, p. 1.
[36]. For
the purposes of the DRS Protection Act, member means a
person who is, or has been, a member of a part of the Reserves, but does not
include a person called upon to serve in the Defence Force under section 60 of
the Defence Act
1903. Section 60 of the Defence Act relates to persons who have
been listed in a proclamation made by the Governor-General in a time of war as
being called to serve in the Defence Force for the duration of the time of war.
[37]. DRS
Protection Act, subsection 24(2).
[38]. Ibid.,
subsection 34(2).
[39]. Ibid.,
subsection 37(2).
[40]. Ibid.,
section 11, table items 2–4.
[41]. For
the purposes of the DRS Protection Act, call out refers to
the calling out and directing the utilisation of the Defence Force under Part
IIIAAA of the Defence
Act 1903.
[42]. DRS
Protection Act, subsection 40(2).
[43]. Ibid.,
subsection 62(2).
[44]. Ibid.,
section 65.
[45]. Ibid.,
section 7.
[46]. Ibid.,
sections 14 and 15.
[47]. Ibid.,
section 16.
[48]. Ibid.,
section 17.
[49]. Ibid.,
section 18.
[50]. Ibid.,
section 19.
[51]. Ibid.,
section 20.
[52]. Ibid.,
section 21.
[53]. Ibid.,
section 22.
[54]. Ibid.,
section 23.
[55]. Ibid.,
section 15.
[56]. Ibid.,
proposed subsection 23A(3).
[57]. Ibid.,
proposed subsection 23A(2).
[58]. Ibid.,
proposed subsection 23A(4).
[59]. Ibid.,
proposed subsection 23A(5).
[60]. Explanatory
Memorandum, Defence Legislation Amendment (2017 Measures No. 1) Bill 2017, p.
33.
[61]. DRS
Protection Act, subsections 15(2), 16(3), 17(2), 18(4), 19(2), 20(2),
21(3), 22(2) and 23(3).
[62]. Ibid.,
proposed subsection 23A(6).
[63]. Crimes Amendment
(Penalty Unit) Act 2017.
[64]. DRS
Protection Act, proposed subsections 23A(7) and 23B(1).
[65]. Ibid.,
proposed subsections 15(3) (inserted by item 48), 16(4) (inserted
by item 50), 17(3) (inserted by item 52), 18(5) (inserted
by item 54), 19(3) (inserted by item 56), 20(3) (inserted
by item 58), 21(4) (inserted by item 60), 22(3) (inserted
by item 62) and 23(4) (inserted by item 64).
[66]. Parliamentary
Joint Committee on Human Rights, Report,
4, 2017, 9 May 2017, pp. 7–11.
[67]. Parliamentary
Joint Committee on Human Rights, Report,
5, 2017, 14 June 2017, pp. 62–66 at pp. 65–66.
[68]. Ibid.
[69]. Ibid.
[70]. DRS
Protection Act, subsection 24(2).
[71]. Item
80 of Part 4 in Schedule 2 to the Bill repeals the existing definition of
the term absent on defence service in section 8 of the DRS Protection
Act.
[72]. DRS
Protection Act, subsection 25(2).
[73]. Item
81 repeals and replaces the definition of contract of employment
in subsection 10(1) of the DRS Protection Act so that the term includes
a contract of apprenticeship and an arrangement under which a person is employed.
[74]. DRS
Protection Act, item 91 of Schedule 2 to the Bill, proposed
amendment to subsection 27(3).
[75]. Ibid.,
paragraph 28(2)(a) and proposed subsection 28(3).
[76]. Ibid.,
paragraph 28(2)(b) and proposed subsection 28(4).
[77]. Item
101 of Schedule 2 to the Bill amends the overview of Part 7 of the DRS
Protection Act in subsection 3(7). DRS Protection Act, proposed subsection
37(2).
[78]. DRS
Protection Act, proposed subsection 38(3).
[79]. Ibid.,
proposed subsections 38(4) and (5).
[80]. Ibid.,
proposed subsection 41(1). DRS Protection Act, proposed
section 13, at item 20 of Schedule 2 to the Bill, provides that the start
day for continuous full time service that a member renders as a result
of a callout is the day on which the member becomes liable to render the
service, whilst the start day for continuous full time service that is
operational service is the day on which the member starts to render the
service.
[81]. Ibid.,
proposed section 42.
[82]. Ibid.,
proposed section 43.
[83]. Ibid.,
proposed section 44.
[84]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, op. cit.
[85]. Ibid.
[86]. Ibid.
[87]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, The Senate, 14 June 2017, pp. 100–103, at p.
102.
[88]. C
Raymond, Regulatory
Powers (Standardisation Reform) Bill 2016, Bills digest 42, 2016–17,
Parliamentary Library, Canberra, 22 November 2016, p. 3.
[89]. Liberal
Party of Australia and the Nationals, The
Coalition’s policy for stronger defence, Coalition policy document, Election
2013, p. 2.
[90]. Ibid.
[91]. D
Johnston (Minister for Defence), Defence
minister announces first principles review panel, media release, 5
August 2014.
[92]. First
Principles Review of Defence, First
principles review: creating one defence, DoD, Canberra, April 2015, p.
9, recommendation 3.10.
[93]. Ibid.,
p. 49.
[94]. Ibid.
[95]. DoD,
‘About AGO’, DoD website.
[96]. Section
3 of the Intelligence Services Act, defines a State authority
as including (a) a Department of State of a State or Territory or a Department
of the Public Service of a State or Territory, (b) a body (whether incorporated
or not) established, or continued in existence, for a public purpose by or
under a law of a State or Territory and (c) a body corporate in which a State,
Territory or a body referred to in paragraph (b) has a controlling interest.
[97]. International
Convention for the Safety of Life at Sea, done in London, 1
November 1974, [1983] ATS 22 (entered into force for Australia 17 November
1983) (see the definition of ‘Safety Convention’ at subsection 14(1) of the Navigation
Act).
[98]. Navigation
Act, subsection 223(2).
[99]. Items
14 and 15 of Schedule 3 to the Bill.
[100]. Items
19 and 37 of Schedule 4 to the Bill.
[101]. Item
39 of Schedule 4 to the Bill.
[102]. A
Sudmalis, ‘Second
reading speech: Australian Defence Force Cover Bill 2015 and Australian Defence
Force Superannuation Bill 2015’, House of Representatives, Debates,
18 August 2015, p. 8783.
[103]. ADFC
Act, proposed subsection 18(2A).
[104]. Ibid.,
proposed subsection 18(2B).
[105]. Ibid.,
subsection 18(5).
[106]. Ibid.,
section 3.
[107]. Ibid.,
proposed repeal of paragraph 5(1) (b)(iii).
[108]. Ibid.,
subsection 5(2).
[109]. Ibid.,
subsection 10(1), subsection 26(5) and subsection 34(4) respectively.
[110]. Ibid.,
section 10 defines the factor determining the increase in a pension payable to
a surviving spouse on account of the eligible children of the invalid or
member.
[111]. Explanatory
Memorandum, Defence Legislation Amendment (2017 Measures No. 1) Bill 2017,
p. 52.
[112]. ADFC
Act, section 33.
[113]. Ibid.,
subsection 34(2). Subsection 34(1) provides that if the lump sum would be paid
to a surviving spouse of the member, the spouse can choose to convert it to a
pension.
[114]. Ibid.,
subsection 34(4).
[115]. Ibid.,
section 35.
[116]. Ibid.,
section 37.
[117]. Ibid.,
subsection 39(2).
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