Bills Digest no. 42 2015–16
PDF version [557KB]
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.
David Watt and Nathan Church
Foreign Affairs, Defence and Security Section
10 November 2015
Contents
Purpose
of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Other provisions
Concluding comments
Date introduced: 14
October 2015
House: Senate
Portfolio: Defence
Commencement: Sections
1–4 commence on Royal Assent. Schedules 1–3 commence on 1 July 2016 once
Schedule 2 of the Defence
Legislation Amendment (Superannuation and ADF Cover) Act 2015
commences.
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 ComLaw
website.
The purpose of the Defence Legislation Amendment (First
Principles) Bill 2015 (the Bill) is to amend the Defence Act 1903[1]
to:
- recognise
the Australian Defence Force (ADF) as an entity
- formally
articulate the authority of the Chief of the Defence force (CDF) and the role
of the Vice Chief of the Defence Force (VCDF) as CDF’s deputy
- remove
the statutory authority of the Service Chiefs in order to clarify the command
and authority of the CDF
- clarify
the status of the ADF Cadets and
- recognise
the role of ADF Reserves.
The Bill consists of three Schedules:
- Schedule
1 amends the Defence Act
- Schedule
2 makes consequential amendments to 27 other acts and
- Schedule
3 repeals the Air Force Act 1923[2]
and the Naval Defence Act 1910.[3]
This Bill aims to implement certain aspects of the
recommendations from the First Principles Review of Defence (the Review). The Review
was the fulfilment of a commitment made by the Coalition during the lead up to the
2013 Federal election to ‘undertake a first-principles review of the
departmental structure and its major processes’.[4]
The Minister for Defence announced the composition of the panel appointed to
carry out the review on 5 August 2014 and, while doing so, stated that the
review would:
...make recommendations designed to ensure Defence’s business
structures support the Australian Defence Force’s principal task out to 2030.[5]
As such, the Review team were given very broad Terms of
Reference which, in addition to the structure of the Department of Defence (the
Department) and the ADF, also included the adequacy of materiel acquisition and
sustainment practice and improving the ‘efficiency and effectiveness of
Defence’.[6]
When it was released by the Minister for Defence on 1
April 2015, the Review made 76 recommendations.[7]
The Government accepted all but one of the recommendations.[8]
The review contains extensive discussion and analysis of Defence’s current
structure and the extent to which that structure adequately facilitates Defence’s
management of its core business. The majority of recommendations relate to matters
of internal structure and practice and implementation of most of them,
including the reintegration of the Defence Materiel Organisation (DMO) back
into the Department as a part of the new Capability Acquisition and Sustainment
Group, does not require legislative change. Therefore, the majority of the recommendations
are not covered by the Bill.
The Bill seeks to implement a range of recommendations derived
from the first part of the Review, being to ‘establish a strong strategic
centre to strengthen accountability and top-level decision-making’.[9]
In so doing the Bill also seeks to ensure that aspects of the law governing
Defence are modernised and, in fact, reflect the modern Defence Force.
It is also worth noting that the First Principles
Review recommended the retention of the Defence diarchy in which the Secretary of
the Department of Defence and the Chief of the Defence Force hold equal status
at the top of the Defence structure.[10]
The diarchy has sometimes been criticised for its potential to compromise clear
accountability but the Review team considered that it is a valid recognition of
the dual nature of Defence and also noted that ‘it promotes contestability of
the advice given to Government which is required given Defence’s two key
outputs of joint warfighting and policy advice’.[11]
Senate Selection of Bills Committee
On 15 October 2015, the Senate Selection of Bills
Committee determined that it would defer consideration of the Bill until its
next meeting.[12]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
not considered the Bill at the time of publication of this Bills Digest.
At the time of publication of this Bills Digest there has
been no publicly reported reaction to the Bill.
Similarly, there has been no public reaction to the Bill
from major interest groups. Reaction to the release of the Review itself was
generally positive with a number of commentators expressing the view that the
review, if implemented, would improve the operation of the Department and the
ADF.[13]
The Australian Defence Association’s Neil James was, however, critical of some
aspects of the Review’s Terms of Reference. James is quoted as saying that the
Review:
...while “very good in parts”, was a “lost opportunity”. There
is no doubt defence can be better managed and many of the recommendations will
assist but the terms of reference were framed such that it finished up being a review
of the department rather than looking crucially at how defence deals with
government. Defence is simply too big and too complex to be under the purview
of just one senior minister.[14]
The Australian Strategic Policy Institute’s (ASPI)
published analysis of the Review was positive, describing it as ‘sensible,
serious and purposeful’. [15]
In addition to general discussion, the ASPI report contains a recommendation by
recommendation analysis of the Review.
The Bill has no apparent financial implications.
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.[16]
The Bill amends subsection 23(2) of the Defence Act to
allow the CDF to issue a determination permitting flexible service arrangements.
While the capacity to provide flexible working arrangements is not new to Defence,
improved access to flexible work arrangement was the subject of a number of
recommendations contained in the Australian Human Rights Commission’s Review
into the treatment of women in the Australian Defence Force.[17]
See Key issues and provisions for more.
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights had not
reported on the Bill at the time of publication of this Bills Digest.
Key issues with their related provisions are discussed
below. For the remaining provisions the reader is advised to consult the
Explanatory Memorandum which provides an adequate overview.
Control and administration of the
ADF
Item 7 of the Bill repeals and replaces Parts II and III of
the Defence Act. Within the new Part II—Control and Administration,
proposed sections 8 and 9 of the Defence Act clarify that the
Minister has general control and administration of the Defence Force and that the
command structure of the ADF is as follows:
- the
CDF will have full command of the Defence Force
- the
Vice Chief of the Defence Force is granted command authority under direction of
the CDF
- the
Service Chiefs will be explicitly subject to direction by the CDF and
- various
references to the three service chiefs are removed from Part II of the Defence
Act having the effect of removing their statutory authority to take action
not delegated to them by the CDF. Consequentially, the Bill repeals the
Naval Defence Act and the Air Force Act.
Proposed section 10 of the Defence Act retains
the diarchy with the CDF and the Secretary having joint responsibility for the
administration of the Defence Force under the general authority of the Minister
for Defence. The VCDF is also included in the new section and reference to the
Service Chiefs and to service specific Defence Instructions is removed.
The Explanatory Memorandum notes that regulations will
provide for the appointment of the Service Chiefs.[18]
Proposed section 11 permits the CDF and Secretary to
issue Defence Instructions.[19]
None of this affects the existing power in section 120A of
the Defence Act for the CDF and the Secretary to delegate authority in
the usual way.
Constitution of the ADF
Within the new Part III—The Australian Defence Force
of the Defence Act, proposed section 23 more fully
incorporates the Royal Australian Navy and Royal Australian Air Force within
the Defence Act’s definition of the ADF,[20]
including specific reference to their respective Chiefs,[21]
permanent[22]
and reserve elements.[23]
The service and training of reserves of the Navy, Army and Air Force are set
out in proposed sections 24–26. New Division 3 of Part III of the
Defence Act specifically provides for calling out of ADF Reserve
elements.[24]
Item 22 of the Bill repeals and replaces Part V of
the Defence Act. Under the new Part V—Australian Defence Force Cadets,
the Cadets of each of the three arms of the Defence Force are defined.[25]
Proposed section 62A of the Defence Act provides that the Chief
of the Defence Force is to direct and administer the Cadets and that in doing
so the Chief of the Defence Force must comply with any directions of the
Minister. Importantly, proposed section 62C reaffirms the understanding that
neither Cadets nor anyone involved in the cadet program is inherently a member
of the ADF by virtue of that involvement. Consistent with this distinction, the
Bill provides that the CDF may make determinations by legislative instrument
for the payment of allowances and benefits to cadets and their families.[26]
This is different from the existing arrangement under which such payments are
made by Ministerial determination in accordance with section 58B of the Defence
Act.
Proposed section 27 incorporates into the Defence
Act provisions previously in the Defence (Personnel) Regulations 2002 which
state that an ADF member’s service does not create a civil contract with the
Crown or the Commonwealth.[27]
Essentially, members of the Defence Force are not employees. Rather, military
service, once entered into, is an obligation to the Crown. This has been the
position since feudal times and it means that the status of members of the
Defence Force is subject to defence law. This principle was upheld recently in
the case of C v Commonwealth of Australia[28]
in which the Full Court of the Federal Court rejected the argument of the
plaintiff that he should be subject to the terms of the Fair Work Act 2009[29]
and that the definition of employer in that Act extended to Crown in relation
to Defence Force members.[30]
Flexible service determinations
The ADF has previously advocated for more flexible working
arrangements for its personnel through the ‘Project SUAKIN’ reforms.[31]
This aims to support ADF personnel maintain their required continuous service
through allowing approved part-time service for full-time personnel. Flexible
service arrangements were also specifically highlighted in the Australian Human
Rights Commission 2012 Review into the treatment of women in the Australian
Defence Force, which noted that ‘flexible working arrangements are an
essential retention tool’ and that ‘it is critical that the availability of
flexible working arrangements in the permanent ADF be increased’.[32]
The Defence
Legislation Amendment (Superannuation and ADF Cover) Act 2015 provides
for flexible service arrangements within the Defence Act 1903, Air
Force Act 1923 and Naval Defence Act 1910, with effect from 1 July
2016.[33]
However, with the repeal of the Air Force Act and the Naval Defence
Act, this Bill incorporates flexible service arrangements across the ADF,
with the CDF able to make (or appropriately delegate) flexible service
determinations.
According to the Explanatory Memorandum to the Defence
Legislation Amendment (Superannuation and ADF Cover) Bill 2015 ‘it is not
necessary to provide similar arrangements for members of the Reserves who
already have access to flexible service through the use of Reserve service days
(in lieu of undertaking continuous full-time service)’.[34]
This is consistent with the terms of proposed section 26 which provides that a member
of the Reserves may volunteer to render a period of continuous full time service
or a period of service other than full time service.
New Division 3 of Part III of the Defence Act (Calling
out the Reserves) is in effect the same as the current Division 4 of Part III,
which is to say that there are no changes to the call out provisions. Proposed
section 29, which deals with the period of service during call out,
reflects the changes to command and administration discussed in the Key Issues
section in that it removes reference to the Service Chiefs.
The Review was critical of the fact that Defence has a
number of geospatial intelligence functions. It noted the administrative inefficiency
of this and that a more coordinated and better resourced function would better
improve support to the ADF.[35]
To this end, the Bill amends the Navigation Act 2012 to position the
Australian Hydrographic Service within the Department of Defence, as opposed to
the Australian Navy.[36]
In substance the Bill updates the Defence Act to
clarify the control and administration of Defence in line with the First
Principles Review’s first principle, which is that Defence should have ‘clear
authorities and accountabilities that align with resources’.[37]
In doing so it seeks to ensure that the Defence Act is brought up to
date with the way that Defence is actually controlled and administered in the
present.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Defence Act 1903,
accessed 8 November 2015.
[2]. Air Force Act 1923,
accessed 8 November 2015.
[3]. Naval Defence Act 1910,
accessed 8 November 2015.
[4]. T
Abbott (Leader of the Opposition), D Johnson (Shadow Minister for Defence), The
Coalition’s policy for stronger defence, media release, 2 September 2013,
accessed 3 November 2015.
[5]. D
Johnston (Minister for Defence), Defence
Minister announces First Principles review panel, media release, 5
August 2014, accessed 6 November 2015
[6]. D
Peever (chair), First
Principles Review: creating one defence (the Review), review prepared
for the Department of Defence, Department of Defence, Canberra, 2015, pp.
81–82, accessed 3 November 2015.
[7]. Ibid.,
p. 9.
[8]. K
Andrews (Minister for Defence), Membership
of the First Principles Review oversight board, media release, 11 May
2015, accessed 8 November 2015.
[9]. D
Peever, the
Review, op. cit., p. 8.
[10]. Ibid.,
recommendation 1.3, p. 9.
[11]. Ibid.,
p. 20
[12]. Senate
Selection of Bills Committee, Report,
13, 2015, The Senate, 15 October 2015, accessed 8 November 2015.
[13]. J
Kerin, ‘Change
of tack’, Australian Financial Review, 9 April 2014, p. 44, accessed
6 November 2015.
[14]. Ibid.
[15]. A
Davies, P Jennings and M Thomson, One
Defence: one direction?: the First Principles Review of Defence,
report, Australian Strategic Policy Institute, Canberra, April 2015, p. 10,
accessed 10 November 2010.
[16]. The
Statement of Compatibility with Human Rights can be found on pages 28–29 of the
Explanatory
Memorandum to
the Bill.
[17]. E
Broderick, Review
into the treatment of women in the Australian Defence Force: phase 2 report,
Australian Human Rights Commission, Sydney, 2012, p. 227–237, accessed 9
November 2015.
[18]. Explanatory
Memorandum, Defence Legislation (First Principles) Bill 2015, p. 5,
accessed 6 November 2015.
[19]. Proposed
subsection 11(3) states that a Defence Instruction may make
provision for or in relation to a matter by applying, adopting or incorporating
any matter contained in an instrument or other writing as in force or existing
from time to time.
[20]. Defence
Act, proposed section 17.
[21]. Defence
Act, proposed paragraphs 18(1)(a), 19(1)(a) and 20(1)(a).
[22]. Defence
Act, proposed subsections 18(2), 19(2) and 20(2).
[23]. Defence
Act, proposed subsections 18(3), 19(3) and 20(3).
[24]. Defence
Act, proposed sections 28 and 29.
[25]. Defence
Act, proposed section 62.
[26]. Defence
Act, proposed section 62B.
[27]. Defence (Personnel)
Regulations 2002, section 117, accessed 8 November 2015.
[28]. C
v Commonwealth of Australia, [2015] FCAFC
113 (21 August 2015), accessed 8 November 2015.
[29]. Fair Work Act 2009,
accessed 8 November 2015.
[30]. J
Wilson, ‘Military
employment safeguards missing in action’, Canberra Times, 6 October
2015, p. 4, accessed 6 November 2015.
[31]. Department
of Defence, ‘Project SUAKIN’,
Defence website, accessed 3 November 2015.
[32]. E
Broderick, Review
into the treatment of women in the Australian Defence Force: phase 2 report,
op. cit., p. 228.
[33]. Parliament
of Australia, ‘Defence
Legislation Amendment (Superannuation and ADF Cover) Bill 2015 homepage’,
Australian Parliament website, accessed 8 November 2015.
[34]. Explanatory
Memorandum, Defence Legislation Amendment (Superannuation and ADF Cover)
Bill 2015, p. 19, accessed 8 November 2015.
[35]. D
Peever, the
Review, op. cit., p. 49.
[36]. Items
66 and 67 of Schedule 2 to the Bill amend the Navigation Act 2012,
accessed 8 November 2015.
[37]. D
Peever, the
Review, op. cit., p. 12.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.