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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Defence
Legislation Amendment Bill (No. 1) 1999
No.
, 1999
(Defence)
A
Bill for an Act to amend legislation relating to defence, and for related
purposes
ISBN: 0642 392137
Contents
Defence Act
1903 3
Defence Act
1903 11
Naval Defence Act
1910 14
Defence Act
1903 18
Naval Defence Act
1910 18
Part
1—Repeal 20
Supply and Development Act
1939 20
Part 2—Consequential
amendments 21
Disability Discrimination Act
1992 21
Merit Protection (Australian Government Employees) Act
1984 21
Public Service Act
1922 21
Remuneration Tribunal Act
1973 22
Sex Discrimination Act
1984 22
Defence Force (Home Loans Assistance) Act
1990 23
Defence Legislation Amendment Act (No. 1)
1997 23
A Bill for an Act to amend legislation relating to
defence, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Defence Legislation Amendment Act (No. 1)
1999.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Subject to subsection (3), the items in Schedules 1 and 2 commence on
a day or days to be fixed by Proclamation.
(3) If an item in Schedule 1 or 2 does not commence under subsection (2)
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
(4) Schedule 5 commences on 1 January 2001.
(5) Item 2 in Schedule 6 is taken to have commenced immediately after the
commencement of Schedule 2 to the Defence Legislation Amendment Act (No. 1)
1997.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 After Part VIII
Insert:
This Part applies to a member who is undertaking combat duties or
combat-related duties.
The object of this Part is to make provision for the urinalysis testing
of members to determine whether they have used any narcotic substance.
In this Part, unless the contrary intention appears:
accredited laboratory means a laboratory that, under the
regulations, is an accredited laboratory for the purposes of this
Part.
authorised person means a person who, under the regulations,
is an authorised person for the purposes of the provision of this Part in which
the expression occurs.
combat duties means duties that require, or are likely to
require, the person performing them to commit, or participate directly in the
commission of, an act of violence in the event of armed conflict.
combat-related duties means:
(a) duties that require, or are likely to require, the person performing
them to undertake training or preparation for, or in connection with, combat
duties; or
(b) duties that require, or are likely to require, the person performing
them to work in support of a member undertaking combat duties.
narcotic substance has the same meaning as in the Customs
Act 1901.
positive test result, in relation to a member, means a
finding made by an accredited laboratory, by means of testing a sample provided
by the member, to the effect that the testing reveals the presence of a narcotic
substance in the sample.
relevant authority, in relation to a member, means:
(a) if the member is an officer who holds a rank not below the rank of
Brigadier (or an equivalent rank)—the Minister; or
(b) otherwise—the relevant service chief.
sample, in relation to a member, means a sample of the
member’s urine.
An authorised person may, in circumstances specified in the regulations,
require a member to provide a sample.
(1) A member who has been required to provide a sample is entitled to pass
the sample without being observed by any other person.
(2) Subject to subsection (1), the process of collecting a sample is to be
supervised:
(a) if the exigencies of service in the Defence Force permit—by a
legally qualified medical practitioner; or
(b) otherwise—by a person whose duties include the provision of
medical assistance.
If a member is required to provide a sample, a person who is to supervise
the process of collecting the sample must, before the sample is provided, give
to the member a written notice explaining such matters relating to dealing with
the sample as are prescribed by the regulations.
(1) The regulations may prescribe procedures for dealing with samples
provided by members.
(2) The regulations are to include provision for informing the member who
provided a sample of the result of the testing of the sample.
(3) Subject to subsection (4), the regulations may provide that particular
procedures prescribed for the purposes of this section need not be strictly
complied with and substantial compliance is sufficient.
(4) Subsection (3) does not apply to procedures for ensuring that a sample
is not interfered with by anyone who is not authorised to do so.
(1) This Division applies if the testing of a sample provided by a member
returns a positive test result.
(2) A positive test result is to be disregarded if an authorised person is
satisfied that the presence of any narcotic substance revealed by the testing
was wholly attributable to something done in accordance with the directions or
recommendations of a legally qualified medical practitioner.
An authorised person is to arrange for a legally qualified medical
practitioner to provide an assessment as to whether the member who provided the
sample is fit or suitable for further service in the Defence Force having regard
to the positive test result.
(1) If a member is assessed under section 99 to be unfit or unsuitable for
further service, the relevant authority must give the member a written
notice:
(a) stating that the member has been so assessed; and
(b) inviting the member to give the relevant authority a written statement
of reasons why:
(i) if the member is an officer—the officer’s appointment
should not be terminated; or
(ii) if the member is not an officer—the member should not be
discharged; and
(c) specifying a period ending not less than 28 days after the day on
which the notice is given as the period within which a statement of reasons must
be given to the relevant authority.
(2) In working out when a period specified in a notice given under
subsection (1) ends, any period during which a complaint made by the member is
being investigated is not to be taken into account.
(3) In this section:
complaint by a member means a complaint that:
(a) is made by the member:
(i) under the regulations; or
(ii) to the Defence Force Ombudsman under the Ombudsman Act 1976;
and
(b) relates to the application to the member of any of the provisions of
this Part.
(1) If a member to whom a notice is given under section 100 is an officer
who holds a rank not below the rank of Major-General (or equivalent rank)
and:
(a) the officer does not give the relevant authority, within the period
specified in the notice, a statement of reasons why the officer’s
appointment should not be terminated; or
(b) having considered such a statement given by the officer, the relevant
authority is of the opinion that the officer’s appointment should be
terminated;
the Governor-General must terminate the appointment.
(2) If a member to whom a notice is given under section 100 is an officer
who holds a rank below the rank of Major-General (or equivalent rank)
and:
(a) the officer does not give the relevant authority, within the period
specified in the notice, a statement of reasons why the officer’s
appointment should not be terminated; or
(b) having considered such a statement given by the officer, the relevant
authority is of the opinion that the officer’s appointment should be
terminated;
the relevant authority must terminate the appointment.
(3) If a member to whom a notice is given under section 100 is not an
officer and:
(a) the member does not give the relevant authority, within the period
specified in the notice, a statement of reasons why the member should not be
discharged; or
(b) having considered such a statement given by the member, the relevant
authority is of the opinion that the member should be discharged;
the relevant authority must discharge the member.
(1) The termination under subsection 101(1) or (2) of the appointment of
an officer or the discharge under subsection 101(3) of a member other than an
officer must be in writing.
(2) The document effecting the termination or discharge must specify the
day on which the termination or discharge is to take effect.
(3) A copy of the document effecting the termination or discharge must be
given to the member.
(4) The day to be specified is a day:
(a) not earlier than the day on which the member is given a copy of the
document effecting the termination or discharge; and
(b) not later than 3 months after the day referred to in paragraph
(a).
(5) The termination of appointment or the discharge, as the case may be,
takes effect on the day specified.
(1) This section applies if a sample provided by a member returns a
positive result (whether or not the member has been assessed under section 99 as
unfit or unsuitable for further service) and:
(a) if the member is an officer—the officer’s appointment is
not terminated under subsection 101(1) or (2); or
(b) if the member is not an officer—the member is not discharged
under subsection 101(3).
(2) Subject to the following provisions of this section, the relevant
service chief may reduce the member to the next lower rank.
(3) If the relevant service chief proposes to reduce a member’s
rank, he or she must:
(a) inform the member in writing of the proposal; and
(b) give the member a reasonable opportunity to show cause why the
member’s rank should not be reduced.
(4) A reduction in rank must be in writing.
(5) The document effecting the reduction in rank must specify the day on
which the reduction in rank is to take effect.
(6) A copy of the document effecting the reduction in rank is to be given
to the officer or other member.
If the testing of a sample provided by a member returns a positive
result, the relevant authority may give to the member a notice containing a
warning that, if the testing of a sample subsequently provided by the member
returns a positive test result:
(a) if the member is an officer—the officer’s appointment may
be terminated; or
(b) if the member is not an officer—the member may be discharged;
or
(c) in either case—the member may be reduced, or further reduced, in
rank.
Nothing in this Part precludes the taking, in relation to a member, of
any administrative action that could, if this Part had not been enacted, be
lawfully taken because he or she is a member.
A member is guilty of an offence if:
(a) an authorised person has required the member under section 94 to
provide a sample; and
(b) the member intentionally refuses or fails to provide the
sample.
Maximum penalty: Imprisonment for 6 months.
A person is guilty of an offence if:
(a) the person intentionally interferes with, or otherwise intentionally
deals with, a sample provided by a member pursuant to a requirement made by an
authorised person under section 94; and
(b) the person is not authorised under this Part or the regulations to do
so.
Maximum penalty: Imprisonment for 6 months.
A finding made by an accredited laboratory by means of testing a sample
provided by a member under this Part is not admissible in evidence in any
proceeding against the member for:
(a) an offence under the Defence Force Discipline Act 1982;
or
(b) an offence against section 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 in relation to an offence under the Defence Force
Discipline Act 1982.
2 Subsection 120A(4AA)
Omit “and 44A”, substitute “, 44A, 100, 101 and
103”.
3 Subsection 120A(4AB)
Omit “and 44A”, substitute “, 44A, 100, 101 and
103”.
4 Subsection 120A(4C)
Omit “and 44A”, substitute “, 44A, 100, 101 and
103”.
1 Subsection 10B(3)
Omit “subsection (4)”, substitute “this
section”.
2 After subsection 10B(5)
Insert:
(5A) At any time before the end of the term of a promotion under this
section, the officer concerned may notify the Chief of Army in writing that the
officer wishes to transfer to the Australian Army Reserve at the end of the term
of the promotion.
(5B) If a notification is given by an officer to the Chief of Army under
subsection (5A), then, at the end of the term of the promotion:
(a) the officer is not retired from the Army by force of subsection (3);
and
(b) the officer is transferred to the Australian Army Reserve by force of
this paragraph.
3 Subsection 20(1)
Repeal the subsection, substitute:
(1) When the term of an appointment of an officer under section 9 or 9AA
ends, the Governor-General must:
(a) if, before that time, the officer has notified the Governor-General in
writing that he or she wishes to be transferred to the Australian Army
Reserve—transfer the officer to the Australian Army Reserve; or
(b) in any other case—retire the officer from the Army;
as soon as is reasonably practicable.
4 Subsection 23(1)
Omit “retirement of an officer under section 20, 21 or 22”,
substitute “transfer of an officer under subsection 20(1), or the
retirement of an officer under section 20, 21 or 22,”.
5 Subsection 23(2)
Before “retirement (wherever occurring)”, insert
“transfer or”.
6 Paragraph 23(3)(a)
After “document of”, insert “transfer
or”.
7 Subsection 23(4)
Repeal the subsection, substitute:
(4) The transfer or retirement takes effect on the day specified in the
document.
Note: The heading to section 23 is altered by inserting
“transfer or” after “effect
of”.
Repeal the subsection, substitute:
(1) The Chief of Army may give to an officer of the Army a written notice
stating that, if within a period specified in the notice, the officer:
(a) retires from the Army; or
(b) notifies the Chief of Army in writing that the officer wishes to
transfer to the Australian Army Reserve;
the officer will be entitled to a special benefit in accordance with a
determination under section 58B or 58H.
9 At the end of section 25B
Add:
(4) If:
(a) a notice is given to an officer under subsection (1); and
(b) a notification is given by the officer under paragraph
(1)(b);
the officer may transfer to the Australian Army Reserve within the period
specified in the notice given under subsection (1) even though he or she would
not otherwise be entitled to transfer to the Australian Army Reserve.
10 Subparagraph
25C(1)(a)(iii)
After “from the Army”, insert “or transferred to the
Australian Army Reserve”.
Note: The heading to section 25C is altered by inserting
“or transfer” after
“retirement”.
11 Section 25D
Repeal the section, substitute:
(1) This section applies to an officer:
(a) to whom a notice has been given under subsection 25B(1); and
(b) who does not, within the period specified in the notice:
(i) retire from the Army; or
(ii) transfer to the Australian Army Reserve; and
(c) in respect of whom the Chief of Army considers it is necessary to take
action under this section in the interests of the organisational effectiveness
of the Army.
(2) The Chief of Army may, at any time after the period specified in the
notice given to the officer under subsection 25B(1), give a written notice to
the officer stating that the Chief of Army proposes to retire the officer at the
end of a period (the relevant period) specified in the notice
unless the officer notifies the Chief of Army in writing within the relevant
period that the officer wishes to transfer to the Australian Army Reserve at or
before the end of the relevant period.
(3) The period specified in a notice given by the Chief of Army to an
officer under subsection (2) must be a period of not less than 13 months
starting on the day on which the notice is given to the officer.
(4) If the officer does not notify the Chief of Army as mentioned in
subsection (2), the Chief of Army may retire the officer at the end of the
relevant period.
(5) The Chief of Army retires an officer under subsection (4) by giving
the officer a written notice stating that the officer is retired from the Army
at the end of the relevant period.
(6) An officer of the Army to whom a notice is given under subsection (5)
is retired from the Army, by force of this subsection, at the end of the
relevant period.
(7) An officer who is retired under subsection (6) is taken for all
purposes to have been compulsorily retired from the Army.
12 Saving
Sections 25B and 25D of the Defence Act 1903 as in force before the
commencement of this item continue to apply to an officer of the Army who was
given a notice before that commencement under subsection 25B(1) of that Act as
so in force.
13 Subsection 13A(3)
Omit “subsection (4)”, substitute “this
section”.
14 After subsection 13A(5)
Insert:
(5A) At any time before the end of the term of a promotion under this
section, the officer concerned may notify the Chief of Navy in writing that the
officer wishes to transfer to the Australian Naval Reserve at the end of the
term of the promotion.
(5B) If a notification is given by an officer to the Chief of Navy under
subsection (5A), then, at the end of the term of the promotion:
(a) the officer is not retired from the Navy by force of subsection (3);
and
(b) the officer is transferred to the Australian Naval Reserve by force of
this paragraph.
15 Subsection 13C(1)
Repeal the subsection, substitute:
(1) When the term of an appointment of an officer under section 9 or 9AA
of the Defence Act 1903 ends, the Governor-General must:
(a) if, before that time, the officer has notified the Governor-General in
writing that he or she wishes to be transferred to the Australian Naval
Reserve—transfer the officer to the Australian Naval Reserve; or
(b) in any other case—retire the officer from the Navy;
as soon as is reasonably practicable.
16 Subsection 13F(1)
Omit “retirement of an officer under section 13C, 13D or 13E”,
substitute “transfer of an officer under subsection 13C(1), or the
retirement of an officer under section 13C, 13D or 13E,”.
17 Subsection 13F(2)
Before “retirement” (wherever occurring), insert
“transfer or”.
18 Paragraph 13F(3)(a)
After “document of”, insert “transfer
or”.
19 Subsection 13F(4)
Repeal the subsection, substitute:
(4) The transfer or retirement takes effect on the day specified in the
document.
Note: The heading to section 13F is altered by inserting
“transfer or” after “effect
of”.
20 Subsection 13K(1)
Repeal the subsection, substitute:
(1) The Chief of Navy may give to an officer a written notice stating
that, if within a period specified in the notice, the officer:
(a) retires from the Navy; or
(b) notifies the Chief of Navy in writing that the officer wishes to
transfer to the Australian Naval Reserve;
the officer will be entitled to a special benefit in accordance with a
determination under section 58B or 58H of the Defence Act 1903.
21 At the end of section
13K
Add:
(4) If:
(a) a notice is given to an officer under subsection (1); and
(b) a notification is given by the officer under paragraph
(1)(b);
the officer may transfer to the Australian Naval Reserve within the period
specified in the notice given under subsection (1) even though he or she would
not otherwise be entitled to transfer to the Australian Naval Reserve.
22 Subparagraph
13L(1)(a)(iii)
After “from the Navy”, insert “or transferred to the
Australian Naval Reserve”.
Note: The heading to section 13L is altered by inserting
“or transfer” after
“retirement”.
23 Section 13M
Repeal the section, substitute:
(1) This section applies to an officer:
(a) to whom a notice has been given under subsection 13K(1); and
(b) who does not, within the period specified in the notice:
(i) retire from the Navy; or
(ii) transfer to the Australian Naval Reserve; and
(c) in respect of whom the Chief of Navy considers it is necessary to take
action under this section in the interests of the organisational effectiveness
of the Navy.
(2) The Chief of Navy may, at any time after the period specified in the
notice given to the officer under subsection 13K(1), give a written notice to
the officer stating that the Chief of Navy proposes to retire the officer at the
end of a period (the relevant period) specified in the notice
unless the officer notifies the Chief of Navy in writing within the relevant
period that the officer wishes to transfer to the Australian Naval Reserve at or
before the end of the relevant period.
(3) The period specified in a notice given by the Chief of Navy to an
officer under subsection (2) must be a period of not less than 13 months
starting on the day on which the notice is given to the officer.
(4) If the officer does not notify the Chief of Navy as mentioned in
subsection (2), the Chief of Navy may retire the officer at the end of the
relevant period.
(5) The Chief of Navy retires an officer under subsection (4) by giving
the officer a written notice stating that the officer is retired from the Navy
at the end of the relevant period.
(6) An officer of the Navy to whom a notice is given under subsection (5)
is retired from the Navy, by force of this subsection, at the end of the
relevant period.
(7) An officer who is retired under subsection (6) is taken for all
purposes to have been compulsorily retired from the Navy.
24 Saving
Sections 13K and 13M of the Naval Defence Act 1910 as in force
before the commencement of this item continue to apply to an officer of the Navy
who was given a notice before that commencement under subsection 13K(1) of that
Act as so in force.
1 Subsection 120A(4AA)
After “16,”, insert “21, 22, 24, 25, 25B,
25D,”.
2 Subsection 44B(3A)
After “12,”, insert “13D, 13E, 13G, 13H, 13K,
13M,”.
1 Subsection 96(1)
Omit “3”, substitute “5”.
2 Section 196B
Repeal the section.
Supply
and Development Act 1939
1 The whole of the Act
Repeal the Act.
Part
2—Consequential
amendments
Disability
Discrimination Act 1992
2 Subsection 4(1) (paragraph (e) of the
definition of Commonwealth employee)
Omit “, Supply and Development Act 1939”.
Merit
Protection (Australian Government Employees) Act 1984
3 Subparagraph 85(2)(k)(iv)
Repeal the subparagraph.
4 Paragraph 22B(14)(d)
Repeal the paragraph.
5 Subsection 22B(16)
Repeal the subsection, substitute:
(16) Regulations made for the purposes of subsection (14) in relation to
persons referred to in paragraph (14)(c) have effect despite subsection 42C(1)
of the Naval Defence Act 1910.
6 Subsection 22B(17)
Omit “or the Supply and Development Act 1939”.
7 Paragraph 22C(13)(d)
Repeal the paragraph.
8 Subsection 22C(15)
Repeal the subsection, substitute:
(15) Regulations made for the purposes of subsection (13) in relation to
persons referred to in paragraph (13)(c) have effect despite subsection 42C(1)
of the Naval Defence Act 1910.
9 Subsection 22C(16)
Omit “or the Supply and Development Act 1939”.
10 Subsection 87(1) (paragraph (j) of the
definition of Commonwealth office)
Repeal the paragraph.
11 Paragraph 87(2)(h)
Repeal the paragraph.
12 Paragraph 87J(2)(f)
Repeal the paragraph.
Remuneration
Tribunal Act 1973
13 Paragraph 3(4)(o)
Repeal the paragraph.
14 Subsection 4(1) (paragraph (e) of the
definition of Commonwealth employee)
Omit “, the Supply and Development Act
1939”.
Defence
Force (Home Loans Assistance) Act 1990
1 Section 3 (subparagraph (a)(ii) of the
definition of basic service period)
Omit “service.”, substitute “service”.
Defence
Legislation Amendment Act (No. 1) 1997
2 Item 125 of Schedule 2
(heading)
Repeal the heading, substitute:
125 Subsection 195(6)
Note: This amendment corrects a misdescribed amendment of
the Defence Force Discipline Act 1982.