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 and Copyright Details
Defence Legislation Amendment Bill (No.
1) 1999
Date Introduced: 30 March 1999
House: House of Representatives
Portfolio: Defence
Commencement: Royal Assent, subject to a
number of qualifications. Subclauses 2(2) and 2(3) provide for the
commencement of the items in Schedules 1 and 2 on a day or days to
be fixed by Proclamation, or on the first day six months after
Royal Assent.
Subclause 2(4) states that Schedule 5 commences
on 1 January 2001.
Subclause 2(5) states that Item 2 in Schedule 6
is taken to have commenced on 19 February 1997, immediately after
the commencement of Schedule 2 to the Defence Legislation
Amendment Act (No. 1) 1997.
The Bill proposes to amend the Defence Act
1903 to implement a process for urine testing of members of
the Defence Force who undertake combat and combat-related duties,
and associated disciplinary measures.
The Bill proposes to amend the Defence Act
1903 and the Naval Defence Act 1910 to:
-
- provide a mechanism for the Chief of the Defence Force, the
Chief of Army, the Chief of Navy and other officers on limited
tenure promotion to transfer from the Army to the Australian Army
Reserve and from the Navy to the Australian Naval Reserve, and
-
- allow the Chief of Army and the Chief of Navy to delegate
theirs power to retire officers, and to terminate the appointment
of officers.
The Bill also proposes:
-
- to repeal the Supply and Development Act 1939 and make
consequential amendments to other Commonwealth legislation,
and
-
- minor amendments to the Defence Force (Home Loans
Assistance) Act 1990 and the Defence Legislation Amendment
Act (No.1) 1997.
As there is no central theme to this Bill, the
background to each major amendment will be explained where relevant
in the Main Provisions section below.
The 'No Drugs' Policy of the Australian
Defence Force and random drug testing of its members
The Australian Defence Force (ADF) has long had
a 'No Drugs' policy. The policy requires the relevant service
authority to initiate disciplinary or administrative action against
any member of the ADF found selling, possessing, dealing in, or
administering an illegal drug (either to himself or herself or to
someone else).(1) The administrative sanctions include termination
of appointment (where the offender is an officer), discharge from
the service (for non-officers), or reduction in rank.
The use, possession and dealing of illegal drugs
are also offences under section 59 of the Defence Force
Discipline Act 1982. Depending on the nature of the offence,
sentences range from fines (for own use possession of cannabis) to
imprisonment (for possession of, or dealing, of narcotics other
than cannabis).
In 1997, there were 3,958 summary trials under
the Defence Force Discipline Act. Of these, 133 (or 3.36 per cent)
related to offences under section 59.(2)
Before enlistment or appointment to the Army,
Navy or Air Force, ADF applicants are required to be made aware of
the policy and given a verbal warning of the consequences of its
breach. Prospective ADF members are required to provide written
acknowledgment that they have been made aware of the policy.(3)
The issue of random urine testing of members of
the Australian Defence Force for narcotic substances has a long
history.
In September 1993, the then Chief of the Defence
Force, Admiral Beaumont, directed that a Urinalysis Testing Program
(UTP) be implemented across the Australian Defence Force (ADF),
with effect from 1 July 1995. The proposal would entail the testing
of urine samples of randomly selected ADF members for narcotic
substances. In terms of testing, emphasis was going to be placed on
operational units and basic training establishments(4).
The initiative was supported by the then
Minister for Defence (Senator Ray) and the Minister for Defence
Science and Personnel (Senator Faulkner). At the time the program
was announced, Senator Faulkner spoke about the need to balance
occupational health and safety concerns, and the civil liberties of
ADF members, and stated that care would be taken in protecting the
dignity and privacy of individuals tested.(5)
On 28 November 1994, a Defence Instruction was
issued, restating the ADF's 'No Drugs' policy, and setting out
procedures for the conduct of the UTP.(6)
In the meantime, the proposed UTP had attracted
the attention(7) of the then Privacy Commissioner, Kevin O'Connor,
who outlined his concerns to the then Government. The concerns, set
out in the Commissioner's Seventh Annual Report on the
Operation of the Privacy Act, were as follows:
'The Commissioner was concerned that the testing
may not be necessary for or directly related to a lawful purpose of
the Defence Force (one of the qualifications set out in the
IPPs(8)) and may be unnecessarily intrusive. The scheme would
involve collecting samples where there is no reasonable suspicion
of drug use, where drug use is not particularly relevant to the
member's functions, and where the samples would not be analysed for
legal drugs that may also affect discipline, safety or efficiency.
The Commissioner considers the following matters relevant:
-
- What evidence is there to indicate the prevalence of drug use
within the ADF?
-
- What demonstrable impact are existing levels of the use of the
drugs in question having on the discipline, safety and efficiency
of the ADF (or on public welfare more generally)?
-
- How does the likely effectiveness of drug testing compare with
the effectiveness of other means of supervision?'(9)
The Privacy Commissioner then recommended that
'...if the Government considered that the public interest in random
drug testing of ADF members outweighed the privacy concerns', then
it should consider enacting legislation. Any such legislation
should provide mechanisms for fair and lawful collection, secure
storage, and limitations on the disclosure, use or retention of
test results.(10)
The Attorney-General's Department also raised
concerns with the UTP, suggesting that legislation might be
required.(11)
As a consequence, the Government deferred the
introduction of the UTP pending resolution of the issues raised. At
the time, Senator Ray (the then Minister for Defence) stated that
if it were necessary to legislate to implement the UTP, the
Government would do so.(12) The Government failed to introduce a
Bill before it lost office in March 1996.
On 1 April 1997, Cabinet approved the proposal
to enact legislation to facilitate urinalysis testing in the
ADF.(13)
Schedule 1 - urinalysis testing of
members of the Defence Force who undertake combat and
combat-related duties
Item 1 of Schedule 1 inserts
new Part VIIIA into the Defence Act. New
Part VIIIA will set out a mechanism for conducting random
urine testing of members of the Defence Force to determine whether
they have used narcotic substances. The new Part will apply to
those members of the ADF undertaking combat or combat-related
duties.
'Narcotic substance' has the same meaning as in
the Customs Act 1901 (new section 93),
and includes substances used to manufacture illegal recreational
drugs such as heroin, amphetamines and cannabis. Section 37 of the
Defence Force Discipline Act 1982 makes drunkenness on
duty an offence - the maximum punishment is 6 months
imprisonment.
A member of the Defence Force may be asked to
provide a urine sample in circumstances to be set out in the
regulations, by a person authorised under the regulations
(new section 94). Although there are no draft
regulations publicly available, the Minister Assisting the Minister
for Defence stated that testing will be conducted on a random
basis.(14)
Before the person provides a sample, the person
who is to supervise its collection must give to the member a
written notice explaining how the sample is going to be dealt with
once it is collected (new section 96).
The person giving the sample is entitled to do
so in private [new subsection 95(1)]. The
collection process must be supervised by a qualified medical
practitioner, or, where this is not possible, a person whose duties
include providing medical assistance [new subsection
95(2)].
New section 97 provides for the
making of regulations. The regulations may prescribe procedures for
dealing with samples [new subsection 97(1)]. The
regulations may also provide that substantial compliance with the
prescribed procedures is sufficient [new subsection
97(3)].
In any event, the regulations must prescribe a
process for informing the member of the result of his or her urine
test [new subsection 97(2)].
New section 98 allows the
authorised person to disregard a positive result if the presence of
the narcotic substance was wholly attributable to something done in
accordance with the directions or recommendations of a medical
practitioner.
If a positive test is returned, the authorised
person has to arrange for a doctor to conduct an assessment to
determine whether the member concerned is fit or suitable for
further service in the Defence Force (new section
99).
Termination or discharge
If a member is assessed to be unfit or
unsuitable, the relevant service chief (or the Minister, in respect
of officers of Brigadier rank or above) must (under new
section 100) give the member a written notice outlining
the result of the assessment, and giving the member at least 28
days to provide a written statement of reasons as to why he or she
should not be discharged (where the member is not an officer), or
have his or her appointment terminated (where the member is an
officer).
New subsection 100(2) provides
that any period during which a complaint by the member to the
Defence Force Ombudsman, or under the Regulations, is not to be
counted for the purposes of determining the end of the period for
giving a statement of written reasons.
New section 101 states that
where a person fails to provide written reasons, the relevant
service chief must discharge the member from the service, or, where
the member is an officer, terminate his or her appointment.
Where the service chief has considered a written
statement provided by the member, and is of the opinion that the
member must be discharged from the service, or have his or her
appointment terminated, then the relevant service chief must
discharge the member or terminate the member's appointment.
In the case where the member of the Defence
Force is of the rank of Major-General or above, the
Governor-General is the only person with the authority to terminate
the member's appointment.
New section 102 states that a
notice of discharge or termination must be in writing, and must
specify the date on which the discharge or termination is to take
effect.
Other sanctions - reduction in rank,
warnings
New subsection 103(2) empowers
the relevant service chief to reduce the member to the next lower
rank. This section applies where a member has returned a positive
result, but has not been discharged or terminated (irrespective of
the result of an assessment under section 99).
Certain procedural requirements apply. The
service chief must give the member written notification of the
proposal and give him or her a reasonable opportunity to show cause
why his or her rank should not be reduced [new subsection
103(3)]. A reduction in rank must be in writing, it must
specify the day on which the reduction is to take effect, and a
copy must be given to the member [new subsections 103(4),
(5) and(6)].
New section 104 gives the
relevant service chief the power to give a notice to a member who
returns a positive result to the effect that any future positive
results will lead to termination or discharge (as appropriate) or
reduction in rank.
New section 105 states that
nothing in Part VIII precludes the taking of other lawful
administrative action against a member.
Related provisions
Failure or refusal to provide a sample when
required to do so under section 94 is an offence (new
section 106), as is tampering with a urine sample
(new section 107). The maximum penalty for both
offences is 6 months imprisonment.
New section 108 provides that a
finding of a urine test provided under this Part is not admissible
in evidence against the member in any proceeding for an offence
under the Defence Force Discipline Act 1982, or certain
related offences under the Crimes Act 1914.
Items 2-4 of Schedule 1 make
consequential amendments to section 120A of the
Defence Act. This section deals with delegation of powers.
Item 2 amends
subsection 120A(4AA) to allow the Chief of Army to
delegate powers exercisable under (new sections 100, 101 and 103)
to an officer of the Army holding a rank not below that of
Brigadier.
Item 3 amends
subsection 120A(4AB) to allow the Chief of Navy to
delegate powers exercisable under new sections 100, 101 and 103 to
an officer of the Navy holding a rank not below that of
Commodore.
Item 4 amends
subsection 120A(4AC) to allow the Chief of Air
Force to delegate powers exercisable under new sections 100, 101
and 103 to an officer of the Air Force holding a rank not below
that of Air Commodore.
Schedule 2 - Transfer of officers to the
Army Reserve and Navy Reserve
The Bill proposes to amend the Defence Act
1903 and the Naval Defence Act 1910 to allow certain
officers of the ADF to transfer to the Australian Army Reserve or
Australian Naval Reserve when their term of appointment ends. The
Air Force Regulations 1927 are to be amended to allow officers of
the Australian Air Force to transfer to the Australian Air Reserve
on retirement.
At present, an officer who wishes to move to the
Reserves has to retire (or be retired) from the relevant Service,
and then seek to be appointed to the Reserves. Given that the
Reserves are part of the Services, this would appear to be a
administratively cumbersome approach. The amendments proposed by
Schedule 2 would allow the officers to whom the provisions will
apply to transfer to the Reserves without first having to retire
from the Service.
The Second Reading Speech to the Bill sets out
the rationale for the amendments:
'These amendments will maintain access to these
officers' expertise, and avoid the more cumbersome present
requirement of an officer being first retired from the Defence
Force and then appointed to the Reserves under separate processes.
The retention of these officers in the Reserves will also enhance
the Defence Force's capacity for rapid expansion should an
emergency situation develop at some stage in the future.'(15)
The amendments may also go some way to
addressing a common problem associated with the Reserve forces (in
particular, the Army Reserve)- the lack of senior officers with
prior military service.(16)
To whom will the amendments apply?
The amendments proposed by the Bill will apply
to the Chief of the Defence Force, the Vice Chief of the Defence
Force, the Chief of Army, the Chief of Navy, officers engaged on
what are known as 'limited tenure promotions', and officers who are
retired from the Army and Navy pursuant to the ADF's policy of
Management Initiated Early Retirement.
In general terms, the above groups of officers
will be able to request a transfer to the Australian Army Reserve
or the Australian Naval Reserve on the expiry of their term of
appointment. If the relevant Service Chief agrees to the transfer
(or, in the case where a Service Chief, the Chief of the ADF or
Vice Chief of the ADF requests a transfer, the Governor-General),
then the officer will be transferred to the relevant Reserve. The
transfer itself will be effected by a written instrument issued in
accordance with the Regulations, with the terms of transfer
contained in that instrument.(17)
An officer who transfers to the Reserves will
still receive the payments to which they are entitled on retirement
from the service - ie. military superannuation, and amounts in
respect of untaken long service leave and annual leave.
Existing provisions pertaining to the appointment and retirement
of the Chief of the ADF, the Service Chiefs, and the Vice Chief of
the ADF
The Chief of the Defence Force, the Chief of
Army, the Chief of Navy and the Chief of Air Force are all
appointed by the Governor-General under subsection 9(1) of the
Defence Act. The Vice-Chief of the Defence Force is appointed by
the Governor-General under subsection 9AA(1) of the Defence
Act.
Section 9AB provides for the making of fixed
term appointments to these positions. Once the period in the
instrument of appointment has expired, and the person has not been
reappointed to the position, the Governor-General must retire the
person as soon as is practicable. The relevant retirement
provisions are subsection 20(1) of the Defence Act, and subsection
13(1) of the Naval Defence Act.
Limited tenure promotion
Both the Defence Act [subsection 10B(1)] and the
Naval Defence Act [subsection 13A(1)] respectively allow the
Governor-General to promote an officer of the rank of Colonel or
higher or the rank of Captain or higher, to a higher rank for a
specified period. This is known as a 'limited tenure promotion'.
The Governor-General may extend the period of the promotion
[Defence Act, subsection 10B(2); Naval Defence Act, subsection
13A(2)].
The Defence Act and the Naval Defence Act
provide that where the period of promotion ends, the officer is
either retired, or (if granted permission to do so) reverts to the
rank that he or she held before the promotion [subsection 10B(5);
subsection 13A(5)]. According to ADF policy, limited tenure
promotion is confined to cases where an officer has '...skills
relevant to a particular appointment but does not possess skills
which will enable wider employability at the higher rank
level.'(18)
Management Initiated Early Retirement
The relevant Defence Instruction describes
Management Initiated Early Retirement (MIER) as follows:
'...a flexible management tool to assist the
Services in ensuring an adequate pool of suitably qualified
officers for the staffing of senior appointments. The relatively
limited number of senior officer positions can create significant
difficulty in providing the necessary broadening experiences to
prepare officers for promotion to the most senior ranks. MIER will
be considered for senior officers whose performance is satisfactory
but who are no longer widely employable and are restricting the
promotion opportunities of others.'(19)
At present, MIER is limited to officers who have
completed at least 20 years service, have spent at least 2 years at
their current rank, and have attained the rank of Lieutenant
Colonel or higher.(20) A person who is retired under the MIER
provisions (Defence Act, sections 25B - 25D; Naval Defence Act,
sections 13K - 13M) receives a 'special benefit', which includes a
severance pay component of two weeks pay for each year of service
(including recognised prior service) to a maximum of 48 weeks.
The Australian Army Reserve and the Australian
Naval Reserve are each divided into Active and Inactive Reserves.
Inactive Reserves do not have any training obligations (although
they are potentially subject to being called out during times of
war or defence emergency). Accordingly, they are not entitled to
any remuneration. Members of the Active Reserves, on the other
hand, have training obligations, for which they are paid.
Although the general policy of the ADF is (and
will be) that members of a Service are appointed to the Inactive
Reserve on retirement, the amendments proposed by the Bill will not
prevent some officers (most notably former Service Chiefs, the
Chief and Vice Chief of the ADF, or officers on limited tenure
promotion) from being transferred to the Active Reserves.
This is because the amendments proposed by the
Bill will provide for the transfer of officers to the 'Australian
Army Reserve' or 'Australian Naval Reserve', rather than to the
active or inactive part of the relevant Reserve.
In other words, there is the potential that an
officer will leave the Army or Navy with their entitlements on
retirement (ie superannuation payout under the relevant
superannuation scheme, plus amounts in respect of accrued long
service leave and annual leave), and transfer to a (paid) position
in the Active Reserves.
Amendments to the Defence Act 1903 and the
Naval Defence Act 1910
Item 1 amends
subsection 10B(3) of the Defence Act to remove the
reference to subsection 10B(4). This is to reflect the fact that an
officer on a limited-tenure promotion will be able to avoid being
retired by a means other than being granted a reduction in rank.
Item 13 amends subsection 13A(3)
of the Naval Defence Act to similar effect.
Item 2 inserts new
subsection 10B(5A) of the Defence Act to allow an
army officer on a limited tenure promotion to give written notice
to the Chief of Army stating that he or she wishes to transfer to
the Australian Army Reserve at the end of the term of promotion.
The notice must be provided to the Chief of Army before the end of
the term of promotion.
New subsection 10B(5B) of the
Defence Act provides that if the Chief of Army is notified in
accordance with subsection 10B(5A), then the officer is not retired
from the Army [as he or she otherwise would have been in accordance
with subsection 10B(3)], and is transferred to the Australian Army
Reserve.
Item 14 inserts new
subsections 13A(5A) and 13(5B) in
the Naval Defence Act. These amendments have the same effect as the
amendments proposed by item 2, but will apply to
naval officers on limited tenure promotion.
Item 3 repeals existing
subsection 20(1), and replaces it with a new provision.
New subsection 20(1) will provide
that, once the term of appointment of the Chief of the Defence
Force, the Chief of Army or Vice Chief of Army ends, the
Governor-General must either retire the person as soon as is
practicable, or transfer him or her to the Australian Army Reserve.
If an officer wants to transfer to the Australian Army Reserve, he
or she must notify the Governor-General in writing before the
expiry of his or her term of appointment.
Item 15 repeals
subsection 13C(1) of the Naval Defence Act, and
substitutes it with a new provision. It will provide that, once the
term of appointment of the Chief of Navy or Vice Chief of Navy
ends, the Governor-General must either retire the person as soon as
is practicable, or transfer him or her to the Australian Naval
Reserve. If an officer wants to transfer to the Australian Naval
Reserve, he or she must notify the Governor-General in writing
before the expiry of his or her term of appointment.
Items 4, 5, 6 and 7 amend
subsections 23(1) -(4) of the Defence Act, to reflect the fact that
an officer will be able to be transferred to the Australian Army
Reserve under subsection 20(1). Items 16, 17, 18 and
19 make amendments of similar effect to the Naval Defence
Act, to reflect the fact that an officer will be able to be
transferred to the Australian Naval Reserve under subsection 13C(1)
of that Act.
The effect of the amendments will be that a
transfer to the Australian Army or Naval Reserve, or a notice of
retirement is to be in writing, and must specify the date on which
the transfer or retirement is to take effect. The date of transfer
or retirement must not be earlier than the date on which the
officer is given the document, and not later than 3 months after
that date.
Items 8 -12 make amendments to
sections 25B, 25C and 25D of the Defence Act. These provisions deal
with the application of MIER, in the interests of the
organisational effectiveness of the Army.
Item 8 repeals existing
subsection 25B(1) of the Defence Act, replacing it with a new
provision. The amendment will allow the Chief of Army to give a
notice to an officer stating that if the officer either retires, or
notifies his or her intention to transfer to the Australian Army
Reserve, within a specified period, that officer will be entitled
to a special benefit in accordance with a determination made under
section 58B or 58H of the Defence Act. The benefit includes two
weeks salary to be paid for each year of service (including prior
service recognised for long service leave purposes up to a maximum
of 48 weeks salary.
Item 20 inserts a new
subsection 13K(1) in the Naval Defence Act, which will
have the same effect as item 8 in respect of the
Chief of Navy and naval officers.
Item 9 inserts new
subsection 25B(4) of the Defence Act. The amendment will
provide that an officer who is given a notice and who requests a
transfer to the Australian Army Reserve will be able to transfer
within the period specified in the notice (rather than at the end
of that period). Item 21 inserts new
subsection 13K(4) of the Naval Defence Act, to the same
effect.
Item 10 amends subparagraph
25C(1)(a)(iii) of the Defence Act. Subsection 25C(1) provides that
a notice under subsection 25B(1) cannot be given to an officer
unless:
-
- the officer has been notified that the Chief of Army is
considering giving him or her such a notice and the reasons why,
and
-
- the officer has been invited to give the Chief of Army reasons
as to why he or she should not be given such a notice.
Item 22 makes an amendment of
similar effect, to subparagraph 13L(1)(a)(iii) of the Naval Defence
Act.
Item 11 repeals existing
section 25D of the Defence Act, replacing it with a new section.
The new provision will apply to an officer who has been given a
notice under subsection 25B(1), and who has not retired from the
Army or transferred to the Australian Army Reserve within the
notice period.
If the Chief of Army considers that it is
necessary in the interests of the organisational effectiveness of
the Army, he or she can give a notice to the officer under
subsection 25B(2), stating that, unless the officer otherwise
requests a transfer to the Australian Army Reserve within the
period specified in the notice (at least 13 months), the officer
will be retired. An officer who transfers or retires pursuant to a
notice under subsection 25B(2) will not receive a special
benefit.
Item 23 repeals existing
section 13M of the Naval Defence Act and replaces it with a new
provision, with similar effect to the amendment to the Defence Act
proposed by item 11. In other words, if the Chief
of Navy considers that it is necessary in the interests of the
organisational effectiveness of the Navy, he or she can give a
notice to the officer under subsection 13K(1) of the Naval Defence
Act stating that, unless the officer other requests a transfer to
the Australian Naval Reserve within the period specified in the
notice (at least 13 months), the officer will be retired. The
officer concerned will not receive a special benefit.
Item 12 is a savings provision
- it provides that sections 25B and 25D of the Defence Act as in
force before the commencement of the item will continue to apply to
an army officer who was given a notice under subsection 25B(1) as
in force at that time.
Item 24 is another savings
provision - it provides that sections 13K and 13M of the Naval
Defence Act as in force before the commencement of the item will
continue to apply to a naval officer who was given a notice under
subsection 13K(1) of that Act as in force at that time.
Schedule 3 - Delegation of powers to
retire, and terminate the appointments of, officers
Item 1 of Schedule 3 amends
subsection 120A(4AA) of the Defence Act to permit the Chief of Army
to delegate, by written instrument, to a person not below the rank
of Brigadier, the following powers:
-
- to retire an officer (other than the Chief or Vice Chief of
Army) on expiry of his or her appointment
-
- to retire an officer for incapacity
-
- to terminate the appointment of an officer who has been absent
without leave for at least three months (continuously)
-
- to terminate the appointment of an officer in the following
circumstances: inefficiency, incompetence, underperformance, or
where the officer has been convicted of an offence or service
offence, and
-
- to retire or transfer an officer pursuant to a notice given
under section 25B or 25C of the Act.
Item 2 of Schedule 3 amends
subsection 44B(3A) of the Naval Defence Act to permit the Chief of
Navy to delegate, by written instrument, to a person not below the
rank of Commodore, the following powers:
-
- to retire an officer (other than the Chief or Vice Chief of
Navy) on expiry of his or her appointment
-
- to retire an officer for incapacity
-
- to terminate the appointment of an officer who has been absent
without leave for at least three months (continuously)
-
- to terminate the appointment of an officer in the following
circumstances: inefficiency, incompetence, underperformance, or
where the officer has been convicted of an offence or service
offence, and
to retire or transfer an officer pursuant to a
notice given under section 13K or 13M of the Act.
Schedule 4 - Amendment of the
Defence Force Discipline Act 1982
Item 1 of Schedule 4 amends
subsection 96(1) of the Defence Force Discipline Act 1982,
to extend the period of time in which a person can be charged with
an offence against the Act or regulations from three years to five
years after the offence is alleged to have been committed.
The amendment implements the main recommendation
of the Senate Foreign Affairs, Defence and Trade References
Committee inquiry on The Crash of RAAF Nomad Aircraft A18-401
on 12 March 1990. On that date, an RAAF Nomad Aircraft crashed
at RAAF Edinburgh field in South Australia killing the pilot,
Flight-Lieutenant Donovan. The crash was caused by the failure of
the tailplane assembly, which would probably have been detected,
had procedures been followed and the plane serviced. In its report,
the Committee found that members of the RAAF had been negligent,
and charges should have been laid under the Defence Force
Discipline Act. At the time that the Committee made this
recommendation, the three-year period of limitations had passed.
Accordingly, the Committee recommended that the limitation period
be extended to five years. As Senator Woods stated on 30 May 1996,
when tabling the report:
'For the day-to-day management of discipline in
the defence forces, three years may well be enough, bit our
recommendation is that the period should be extended to five years
to allow for circumstances like this. We are not implying that a
number of inquiries were instituted so that the statute of
limitations should be exceeded, but certainly it would be possible
in theory for the defence forces to use that action as a delaying
prospect to prevent any charges being laid.'(21)
In its response to the Report, tabled 23
September 1997, the Government agreed to the Committee's
recommendation. Speaking in support of the recommendation, Senator
Brownhill stated:
'On a number of occasions - in fact, on too many
occasions - where accidents have occurred in the Department of
Defence, the period of inquiry has extended beyond three years, so
that the Defence Force Discipline Act has prevented any
disciplinary action being taken against anyone who is found
culpable in any way at all.'(22)
Item 2 repeals section 196B of
the Act. This provision established the Defence Force Discipline
Legislation Board of Review (the Board of Review). The provision
required the Board of Review, within 12 months of its
establishment, to provide a report to the Minister for Defence
relating to the operation of the Act, and the operation of any
other law of the Commonwealth or Australian Capital Territory
pertaining to the discipline of the Australian Defence Force.
The report of the Board of Review was provided
to the Minister for Defence Science and Personnel on 31 May 1989,
and the Explanatory Memorandum to the Bill states that all
of its recommendations have been implemented.(23) Accordingly, the
provision serves no further purpose.
Schedule 5 - Repeal of the
Supply and Development Act 1939
Item 1 of Part 1 of Schedule 5
repeals the Supply and Development Act 1939, for the
reason that it is redundant. This legislation provided for the
Governor-General to establish 'undertakings' to satisfy Australia's
defence needs. The Act and associated Regulations also set terms
and conditions of employment for people employed in such
undertakings.
As a result of the corporatisation,
privatisation or closure of Australia's defence production
facilities, there are no longer any activities carried on, or
employees employed, under the Act.
Part 2 of Schedule 5 makes a
series of consequential amendments to other Commonwealth
legislation, generally to reflect the repeal of the Supply and
Development Act.
Item 2 omits the reference to
'Supply and Development Act 1939' from the definition of
'Commonwealth employee' in subsection 4(1) of the Disability
Discrimination Act 1992.
Item 3 repeals
subparagraph 85(2)(k)(iv) of the Merit
Protection (Australian Government Employees) Act 1984. This
provision allows regulations to be made in respect of the
application of that Act to people employed under section 10 of the
Supply and Development Act.
Item 4 repeals
paragraph 22B(14)(d) of the Public Service Act
1922. This provision provides for the making of regulations
applying the equal employment opportunity provisions of that Act to
people employed under section 10 of the Supply and Development Act.
Item 5 makes a consequential amendment to
subsection 22B(16) of the Public Service Act.
Item 6 repeals a reference to
the Supply and Development Act in subsection
22B(17). This provision allows the Minister for Defence to
issue a written instrument exempting certain staff employed under
the Supply and Development Act and the Naval Defence Act from the
application of the equal employment opportunity provisions of the
Public Service Act.
Items 7, 8 and 9 make
consequential amendments to section 22C of the Public Service Act
to reflect the repeal of the Supply and Development Act This
provision imposes obligations on Departments and Agencies to
prepare industrial democracy plans.
Items 10 11 and 12 amend the
Part IV mobility provisions of the Public Service Act to reflect
the repeal of the Supply and Development Act.
Item 13 repeals
paragraph 3(4)(o) of the Remuneration Tribunal
Act 1973 to remove the reference to offices under section 10
of the Supply and Development Act.
Item 14 omits the reference to
the 'Supply and Development Act 1939' from the definition
of 'Commonwealth employee' in subsection 4(1) of the Sex
Discrimination Act 1984.
Schedule 6 - Technical
amendments
Item 1 of Schedule 6 makes a
minor typographical amendment to subparagraph (a)(ii) of the
definition of 'basic service period' in section 3 of the
Defence Force (Home Loans Assistance) Act 1990.
Item 2 amends a heading to an
amendment (of the Defence Force Discipline Act 1982)
contained in the Defence Legislation Amendment Act (No. 1)
1997.
-
- Defence Instructions (General) PERS 15 -2, Involvement by
Members of the Australian Defence Force with Illegal Drugs, p. 2.
- Judge Advocate General, Defence Force Discipline Act 1982,
Report for the period 1 January to 31 December 1997, AGPS 1999,
Annex A.
- Defence Instructions (General) PERS 15 -2, Involvement by
Members of the Australian Defence Force with Illegal Drugs, p. 2;
Annex A, Annex B.
- Senator the Hon J Faulkner, Senate Hansard, 7 October 1993, p.
1858.
- Ibid., p. 1858.
- Defence Instructions (General) Pers 15 -2, Involvement by
Members of the Australian Defence Force with Illegal Drugs.
- Privacy Commissioner, Seventh Annual Report on the Operation of
the Privacy Act for the period 1 July 1994 to 30 June 1995, p 25.
The Report states that the Commissioner found out about the
proposal from callers to the Privacy Hotline.
- Information Privacy Principles. These are contained in section
14 of the Privacy Act 1988. IPP No. 1 states that personal
information shall not be collected for inclusion in a record
unless:
'(a) the information is collected for a purpose
that is a lawful purpose directly related to a function or activity
of the collector, and
(b) the collection of the information is
necessary or directly related to that purpose.'
- Privacy Commissioner, Seventh Annual Report on the Operation of
the Privacy Act for the period 1 July 1994 to 30 June 1995, p. 26.
- Ibid., p. 26.
- Senator the Hon Robert Ray, Parliamentary Debates, 26 June
1995, p. 1726.
- Ibid., p. 1726.
- Army, 10 December 1998.
- The Hon Bruce Scott MP, Defence Legislation Amendment Bill (No.
1) 1999, Second Reading Speech
- ibid.
- Tamsitt, G.M, 'The Army Reserve: Preparing for a Total Force',
Australian Defence Force Journal, No. 123, March/April 1997, p. 27.
- Australian Military Regulations, r. 76; Australian Naval
Regulations, r.35.
- Defence Instructions (General) PERS 03 -3, Policy on the
Retirement and Termination of Appointment of Australian Defence
Force Officers, p. 6.
- Ibid., p. 4
- ibid., p. 5.
- Senate, Parliamentary Debates, 30 May 1996, p. 1492.
- Senate, Parliamentary Debates, 23 September 1997, p. 6741.
- Explanatory Memorandum, para 28.
Elen Perdikogiannis
17 May 1999
Bills Digest Service
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