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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Defence
Reserve Service (Protection) Bill 2000
No.
, 2000
(Defence)
A
Bill for an Act to protect members of the Reserves in their employment and
education, to facilitate their return to civilian life, and for related
purposes
ISBN: 0642 453586
Contents
A Bill for an Act to protect members of the Reserves in
their employment and education, to facilitate their return to civilian life, and
for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Defence Reserve Service (Protection) Act
2000.
This Act commences on the 28th day after the day on which it receives the
Royal Assent.
(1) The following is a simplified overview of the Act.
(2) This Act sets out entitlements and prohibitions that apply in relation
to people who are rendering, or have rendered, defence service as members of the
Reserves. In some cases, the entitlements extend to their dependants.
(3) The kind of defence service rendered by a particular member determines
the scope of the prohibitions and entitlements available in relation to him or
her: see Part 3.
(4) Part 4 contains prohibitions against conduct that discriminates
against members in their employment or other work. This Part applies to all
types of defence service.
(5) Part 5 sets out the consequences for a member’s employment
if he or she was employed when he or she started to render defence service. This
Part applies to all kinds of defence service (except for certain kinds of
voluntary continuous full time service).
(6) Part 6 protects members from having their partnerships dissolved
while the members are absent on defence service. This Part applies to all kinds
of defence service (except for certain kinds of voluntary continuous full time
service).
(7) Part 7 allows a member to re-enrol in, and resume, a course that
the member had to interrupt in order to undertake continuous full time defence
service (except for certain kinds of voluntary continuous full time
service).
(8) Part 8 postpones debts that a member (or his or her dependant) is
liable to pay and that would otherwise fall due after the member starts
rendering defence service as a result of being called out. Interest accrues on
the postponed debts. Part 8 also stays proceedings in respect of the
postponed debts.
(9) Part 9 protects a member or his or her dependant from bankruptcy
proceedings. It applies only if the member has rendered defence service after
being called out.
(10) Part 10 allows for a member who has rendered defence service
after being called out to get access to loans and guarantees to enable him or
her to resume civilian life after returning from that service.
(11) Part 11 deals with enforcement and remedies. Part 12 deals
with minor miscellaneous matters.
(1) This Act binds the Crown in each of its capacities.
(2) In particular, obligations that this Act imposes on employers or other
persons (however described) are imposed on the Crown just as they are imposed on
everyone else.
(3) However, this Act does not make the Crown liable to be prosecuted for
an offence.
The Criminal Code applies to all offences against this
Act.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
This Act extends to every external Territory.
In this Act, unless the contrary intention appears:
absent on defence service has the meaning given by
section 8.
ADI (authorised deposit-taking institution) means a
corporation that is an ADI for the purposes of the Banking Act
1959.
Australian education institution means an education
institution (within the meaning of the Student Assistance Act 1973) in
Australia.
body administering an Australian education institution
means:
(a) the institution (if it is a body corporate); or
(b) in any other case—the body or other person (including the Crown)
who has ultimate responsibility for administering the institution.
call out day, in relation to a member, means the day on which
the member becomes liable to render continuous full time service as a result of
an order under section 50D, 51A, 51B or 51C of the Defence Act
1903.
commission agent means a person who:
(a) works for another person as the agent of that other person;
and
(b) is wholly or partly remunerated by commission.
company title interest, in relation to land, means a
right:
(a) to occupy the land; or
(b) to occupy a building or part of a building erected on the
land;
arising out of the holding of shares, or out of a contract to purchase
shares, in a company that owns the land or building.
contract of employment has the meaning given by
section 10.
contractor means a person who contracts to perform work for
another person under a contract for services (other than as an
employee).
defence service means service (including training) in a part
of the Reserves.
dependant has the meaning given by section 9.
employment includes:
(a) appointment or employment by the Commonwealth, a State or Territory;
and
(b) appointment or employment by an authority of the Commonwealth or of a
State or Territory (including a local government body); and
(c) an apprenticeship; and
(d) a traineeship arrangement; and
(e) full-time, part-time and casual work;
but does not include:
(f) work under a contract for services; or
(g) work as a commission agent.
Finance Minister means the Minister administering the
Financial Management and Accountability Act 1997.
hire purchase agreement means a contract for the hire of
goods where:
(a) the hirer has the right or obligation to buy the goods; and
(b) the charge that is or may be made for the hire, together with any
other amount payable under the contract (including an amount to buy the goods or
to exercise an option to do so), is more than the price of the goods;
and
(c) title in the goods does not pass to the hirer until the option to
purchase is exercised.
land includes:
(a) buildings and improvements on land; and
(b) a legal or equitable estate or interest in land; and
(c) a right, power or privilege over, or in relation to, land;
and
(d) a company title interest in land.
loan includes the provision of credit or any other form of
financial accommodation.
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.
protected period, in relation to a member who is rendering,
or has rendered, defence service in relation to which Part 5 or Part 8
applies, means the shorter of the following periods:
(a) the period that begins immediately after the day on which the member
ceased to render the defence service and that is equal to the length of that
service;
(b) the period of 12 months beginning immediately after the day on which
the member ceased to render that service.
Reserves has the same meaning as in the Defence Act
1903.
service chief means the Chief of Navy, the Chief of Army or
the Chief of Air Force.
this Act includes the regulations.
A member is absent on defence service during:
(a) 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; and
(b) any period while he or she is rendering defence service; and
(c) the period (if any) after he or she has ceased to render that service
until he or she resumes work, or is reinstated in employment, under
Part 5.
(1) In this Act:
dependant of a member who is or was rendering continuous full
time service as a result of an order under 50D, 51A, 51B or 51C of the
Defence Act 1903 means:
(a) if the member is a member of a couple—the member’s
partner; or
(b) a person who was wholly or partly dependent on the member for
financial support immediately before the member’s call out day;
or
(c) a person who became, or becomes, wholly or partly dependent on the
member for financial support while the member was or is rendering such service;
or
(d) a person to whom a pension is payable under the Veterans’
Entitlements Act 1986 because of the member’s incapacity or death;
or
(e) if the member died while rendering such service—the widow or
widower of the member.
(2) In this section, the following expressions have the same meanings as
in the Veterans’ Entitlements Act 1986:
(a) member of a couple;
(b) partner;
(c) widow;
(d) widower.
(1) In this Act:
contract of employment includes a contract of
apprenticeship.
(2) For the purposes of this Act, the appointment or employment of a
person under a law of the Commonwealth or of a State or Territory is taken to be
employment under a contract of employment.
The following table sets out which Parts of this Act apply in relation to
which kinds of defence service:
|
Which protections and benefits apply to the different kinds of defence
service |
|||
|---|---|---|---|
|
Item |
This Part... |
which deals with... |
applies to these kinds of defence service... |
|
1 |
Part 4 |
Protection against discrimination |
All kinds of defence service |
|
2 |
Part 5 |
Employment protection |
All kinds of defence service except for certain kinds of voluntary
continuous full time service (see section 12) |
|
3 |
Part 6 |
Partnership protection |
All kinds of defence service except for certain kinds of voluntary
continuous full time service (see section 12) |
|
4 |
Part 7 |
Education protection |
All kinds of continuous full time service except for certain kinds of
voluntary continuous full time service (see section 12) |
|
5 |
Part 8 |
Financial liability protection |
Continuous full time service following a call out (see
section 13) |
|
6 |
Part 9 |
Bankruptcy protection |
Continuous full time service following a call out (see
section 13) |
|
7 |
Part 10 |
Loans and guarantees |
Continuous full time service following a call out (see
section 13) |
|
8 |
Part 11 |
Enforcement and remedies |
All kinds of defence service |
|
9 |
Part 12 |
Other matters |
All kinds of defence service |
(1) Parts 5, 6 and 7 do not apply in relation to continuous full time
service that a member voluntarily undertook to render under subsection 32A(4) of
the Naval Defence Act 1910, subsection 50(3) of the Defence Act
1903 or subsection 4J(3) of the Air Force Act 1923 unless:
(a) a service chief requested the member to give the undertaking on the
basis that those Parts would apply to the service; and
(b) the member gave the undertaking on that basis.
(2) In deciding whether to request a member to give an undertaking on that
basis, a service chief must have regard to:
(a) the nature of the service to be rendered; and
(b) the member’s military and civil skills and capabilities;
and
(c) the current need of the Defence Force for the member’s skills
and capabilities; and
(d) the effect that rendering the service might have on the member’s
employment and education (including the effect that it might have on third
parties such as employers); and
(e) any other relevant matter.
Parts 8, 9 and 10 apply only in relation to continuous full time
service that a member is rendering, or has rendered, as a result of an order
under section 50D, 51A, 51B or 51C of the Defence Act
1903.
(1) This Part applies in relation to all kinds of defence service (see
Part 3).
(2) Essentially, the Part makes it unlawful to refuse to give work to a
person on the ground that the person is rendering, has rendered, or might in the
future render, defence service.
(3) A breach of the Part may be a criminal offence. Breaches can also be
redressed by civil means: see Part 11.
(1) A person must not refuse or fail to offer to employ another person for
the reason that, or for reasons that include the reason that, the other
person:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d) has previously rendered defence service.
(2) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) An employer must not, for a prohibited reason, or for reasons that
include a prohibited reason, do or threaten to do any of the
following:
(a) change the terms and conditions of employment of an employee to his or
her prejudice;
(b) discriminate against an employee in his or her terms and conditions of
employment;
(c) dismiss an employee.
(2) Conduct mentioned in subsection (1) is for a prohibited
reason if it is engaged in because the employee:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d) has previously rendered defence service.
(3) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) An employer must not hinder or prevent a person in the
employer’s employment from:
(a) volunteering to render defence service; or
(b) rendering defence service.
(2) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A person who proposes to form a partnership must not refuse or fail to
invite another person to become a partner in the partnership for a prohibited
reason or for reasons that include a prohibited reason.
(2) A person who is a partner in a partnership must not refuse or fail to
invite another person to become a partner in the partnership for a prohibited
reason or for reasons that include a prohibited reason.
(3) Conduct mentioned in subsection (1) or (2) is for a
prohibited reason if it is engaged in because the other
person:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d) has previously rendered defence service.
(4) A person who contravenes subsection (1) or (2) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A person who is a partner in a partnership must not hinder or prevent
another partner in the partnership from:
(a) volunteering to render defence service; or
(b) rendering defence service.
(2) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A person must not refuse or fail to engage another person as a
commission agent for the reason that, or for reasons that include the reason
that, the other person, or an officer or employee of the other person:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d) has previously rendered defence service.
(2) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A person must not, for a prohibited reason, or for reasons that
include a prohibited reason, do, or threaten to do, either of the
following:
(a) discriminate against a commission agent in relation to the terms and
conditions of the contract under which the person deals with the
agent;
(b) terminate the contract.
(2) Conduct mentioned in subsection (1) is for a prohibited
reason if it is engaged in because the commission agent, or an officer
or employee of the commission agent:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d) has previously rendered defence service.
(2) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A person must not refuse or fail to engage another person as a
contractor for the reason that, or for reasons that include the reason that, the
other person, or an officer or employee of the other person:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d) has previously rendered defence service.
(2) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A person must not, for a prohibited reason, or for reasons that
include a prohibited reason, do, or threaten to do, either of the
following:
(a) discriminate against a contractor in relation to the terms and
conditions of the contract for services that the person has entered into with
the contractor;
(b) terminate the contract for services.
(2) Conduct mentioned in subsection (1) is for a prohibited
reason if it is engaged in because the contractor, or an officer or
employee of the contractor:
(a) may volunteer to render defence service; or
(b) is rendering defence service; or
(c) is, or may become, liable to render defence service; or
(d) has previously rendered defence service.
(3) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) This Part applies in relation to all kinds of defence service except
for certain kinds of voluntary continuous full time service (see
Part 3).
(2) Essentially, the Part protects the status and entitlements, such as
accrued leave, of members who render the defence service while subject to
employment obligations.
(1) This section applies if a member is employed by a person under a
contract of employment, or other arrangement, that allows the member any type of
paid or unpaid leave.
(2) The employer must not require the member to take the leave
concurrently with all or part of his or her absence on defence
service.
(3) Subsection (2) does not apply to the extent that the member
agrees to take the leave concurrently with all or part of that
absence.
(1) If a member was employed before starting to render defence service,
the contract of employment is not terminated (or taken to be terminated) because
of the member’s failure to perform his or her duties under the contract
while absent on defence service.
(2) Instead, the contract is suspended while the member is absent on
defence service, unless terminated earlier in accordance with law.
(3) A period during which a contract of employment is suspended is taken
not to be a period of employment under the contract unless this Part provides
otherwise.
(4) Subsection (1) does not prevent the termination of the contract
if the member does not apply to resume employment under the contract within 30
days after ceasing to render defence service.
(1) A member whose contract of employment is suspended under
section 26 may apply to the employer to resume work under the
contract. An application must be in writing (unless the employer waives that
requirement).
(2) If the contract of employment was terminated in accordance with law
while the member was absent on defence service but another employer (the
new employer) is carrying on:
(a) the business or undertaking in which the member was employed under the
contract; or
(b) another business or undertaking which includes that business or
undertaking;
the member may apply in writing to the new employer for
reinstatement.
(3) The member must apply to the employer or new employer within 30 days
after ceasing to render defence service.
(4) If an employee is reinstated in employment with a new employer, the
contract of employment under which the member was previously employed is novated
to the new employer.
(1) As soon as reasonably practicable after receiving an application under
section 27, the employer must:
(a) allow the member to resume work, or reinstate the member in
employment, in the same capacity in which the member was employed immediately
before he or she started to render defence service; and
(b) ensure that the member’s terms and conditions of employment
(including remuneration) are at least as favourable as those that would have
applied to him or her in that capacity but for the service.
Exceptions
(2) Subsection (1) does not apply if:
(a) the employer agreed to the resumption or reinstatement, but the
member:
(i) did not make himself or herself available for work as agreed between
them; and
(ii) did not have a reasonable excuse for not doing so; or
(b) because of changed circumstances since the member was employed (except
employing someone else to replace the member):
(i) it was not within the employer’s power to allow the resumption
or reinstatement; or
(ii) 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.
This Division deals with determining the entitlements of a member, or of
someone else arising because of the entitlements of a member, under a contract
of employment or otherwise in relation to the following:
(a) annual leave and leave loadings;
(b) personal or carer’s leave, including sick leave, family leave,
bereavement leave, compassionate leave, cultural leave and other like forms of
leave;
(c) parental leave, including maternity and adoption leave;
(d) long service leave or an amount in place of long service
leave;
(e) a prescribed matter.
(1) This section applies if a member resumes work, or is reinstated in
employment, under this Part after rendering continuous full time defence service
to which this Part applies.
Note: Part 3 sets out which kinds of defence service
this Part applies to.
(2) The entitlements in relation to the member’s employment in
respect of the period of the service must be no less beneficial than they would
have been if the member had been absent on leave without pay from the employment
during that period.
(3) In particular, the continuity of the member’s employment is
taken not to have been broken by his or her absence on defence
service.
(1) This section applies if a member resumes work, or is reinstated in
employment, under this Part after rendering defence service other than
continuous full time defence service.
Resumption of employment
(2) If the member resumes work for the old employer (see subsection
27(1)):
(a) the period of the absence is taken to have been paid service in the
employment; and
(b) the continuity of the member’s employment is taken not to have
been broken by his or her absence on defence service.
Reinstatement in employment
(3) If the member is reinstated in employment with a new employer (see
subsection 27(2)):
(a) the period of employment under the suspended contract of employment is
taken to have been served under the contract of employment entered into on the
reinstatement; and
(b) the period of the absence is taken to have been paid service in the
new employment; and
(c) the continuity of the period of employment under the suspended
contract of employment with the period of employment that commenced on the
reinstatement is taken not to have been broken by the member’s absence on
defence service.
(1) This section applies if an employer has (in accordance with this Part)
permitted a member to resume work or reinstated a member in
employment.
(2) During the period that begins immediately after the member resumes
work, or is reinstated in employment, and that is equal to the length of the
member’s absence on defence service, the employer must not:
(a) terminate the member’s employment; or
(b) vary the member’s employment by employing the member in a
capacity, or under terms and conditions, less favourable to the member than the
capacity in which, or the terms and conditions under which, the member was
employed on resuming work or being reinstated in employment.
Exception—changed circumstances
(3) Paragraph (2)(a) does not apply if, because of changed
circumstances since the member resumed work or was reinstated (except employing
someone else to replace the member), it was not within the employer’s
power to retain the member in employment.
Exception—employee misconduct
(4) Subsection (2) does not apply if the termination or variation of
the member’s employment was because of misconduct by the member that was
serious enough to justify the termination or variation.
(5) To avoid doubt, the member’s absence on defence service is not
misconduct for the purposes of subsection (4).
(1) To avoid doubt, this Act does not oblige an employer of a member who
is, or has been, absent on defence service to do any of the following in respect
of the period of the absence:
(a) to pay the member’s remuneration in respect of the employment;
or
(b) to grant the member’s entitlements in respect of the employment
(except as provided under this Part); or
(c) to meet the employer’s obligations under a workers’
compensation law to pay premiums, contributions or similar payments in relation
to the member; or
(d) to meet the employer’s obligations under the Superannuation
Guarantee (Administration) Act 1992 in relation to the member.
(2) Paragraphs (1)(a) and (b) do not apply to the extent that the
member would have been entitled to the benefit of the things mentioned in those
paragraphs anyway if the member’s absence had been for a purpose other
than the purpose of rendering defence service.
Example: An employer would still have to pay the wages of a
member who rendered defence service while on paid annual leave, since the
member’s absence on paid annual leave would not relieve the employer from
having to pay wages. But once the member ran out of paid annual leave, the
employer would not have to pay the member any longer until the member returned
from rendering defence service.
(3) In this section:
workers’ compensation law means a law that provides for
compensation or other benefits for work-related trauma suffered by employees
without requiring proof of any breach by employers or by their
associates.
(1) This Part applies in relation to all kinds of defence service except
for certain kinds of voluntary continuous full time service (see
Part 3).
(2) Essentially, the Part protects members from having their partnerships
dissolved while the members are absent on defence service.
(1) A person must not take or continue proceedings or other action against
a member who is a partner in a partnership to:
(a) dissolve the partnership; or
(b) expel the member from the partnership; or
(c) require the member to forfeit his or her share in the partnership;
or
(d) subject the member to any other detriment concerning the
partnership;
while the member is rendering defence service.
(2) It does not matter whether the proceedings are taken or continued
under a partnership agreement or otherwise.
(3) Subsection (1) does not apply if all the partners consented to
taking or continuing the proceedings or other action.
(1) A person must not take or continue proceedings or other action against
a partner in a partnership who has rendered defence service to:
(a) dissolve the partnership; or
(b) expel the partner from the partnership; or
(c) require the partner to forfeit his or her share in the partnership;
or
(d) subject the partner to any other detriment concerning the
partnership;
before the end of the partner’s protected period.
(2) It does not matter whether the proceedings are taken or continued
under a partnership agreement or otherwise.
(3) Subsection (1) does not apply if all the partners consented to
taking or continuing the proceedings or other action.
(1) This Part applies in relation to all kinds of continuous full time
defence service except for certain kinds of voluntary continuous full time
service (see Part 3).
(2) Essentially, the Part allows a member to re-enrol in, and resume, a
course that was interrupted because the member was required to render defence
service or voluntarily undertook defence service.
This Part applies to a member who:
(a) is enrolled in a course at an Australian education institution during
all or part of the period he or she is rendering defence service; and
(b) does not complete the course before ceasing to render the service;
and
(c) applies to re-enrol (if necessary) and to resume the course within 30
days after ceasing to render the service.
(1) The body administering the Australian education institution must not
exclude the member from the course, or subject the member to any other
disadvantage, because he or she did not complete a requirement of the course or
any assessment for the course:
(a) while rendering the defence service; or
(b) otherwise because of having rendered the defence service.
(2) The body administering the Australian education institution
must:
(a) allow the member to re-enrol (if necessary) in the course;
and
(b) allow the member to resume the course at a point that the body
considers appropriate; and
(c) ensure that the conditions (if any) on the re-enrolment and resumption
are the same as those that would have applied to a person who is not a
member.
(3) Subsection (2) does not apply if, because of a change in the
nature of courses offered by the institution since the member was previously
enrolled:
(a) it was not reasonable or practicable to allow the member to re-enrol
or resume the course in which he or she was previously enrolled; and
(b) the body administering the institution offered to enrol the member in
another course that most closely corresponded to the course in which he or she
was previously enrolled; and
(c) the conditions on the re-enrolment and resumption were the most
favourable that it was reasonable or practicable to offer the
member.
(1) This Part applies to continuous full time service rendered as a result
of a call out (see Part 3).
(2) Essentially, many liabilities of a member or dependant that would
otherwise fall due after the member starts rendering defence service are
postponed. A liability may, for example, relate to principal or interest under a
loan or the purchase price of something that the member or dependant has agreed
to buy. Generally, the liability must have arisen before the member’s call
out day.
(3) The liabilities are postponed for the shorter of the
following:
(a) the period that begins immediately after the member ceased to render
defence service and that is equal to the length of that service;
(b) the period of 12 months beginning immediately after he or she ceased
to render that service.
(4) Interest accrues on the postponed liabilities. This is so regardless
of whether the member or dependant had to pay interest in respect of the
original liability.
(5) This Part also stays proceedings in respect of the postponed
liabilities.
(1) This Part applies to a liability of a member or of his or her
dependant that arose before the member’s call out day to make a payment
under one or more of the following:
(a) a secured or unsecured loan;
(b) a hire purchase agreement;
(c) an agreement to buy something (including land);
(d) an agreement to lease something (including land);
(e) a guarantee.
In this Part, they are called agreements.
(2) However, this section is subject to the exceptions in
sections 44, 45 and 46.
(1) This Part also applies to a liability of a member or of his or her
dependant to make a payment under an agreement if:
(a) the member or dependant had an option to buy or lease something
(including land) that was granted before the member’s call out day;
and
(b) on exercising the option under the agreement on or after that day, the
member or dependant became liable to make the payment.
(2) However, this section is subject to the exceptions in
sections 44, 45 and 46.
(1) This Part also applies to the liability of a member or of his or her
dependant to pay rates, or other taxes imposed in respect of land, if:
(a) the liability arose before the member’s call out day;
or
(b) in a case covered by section 42—the liability arises on or
after the day on which the option to buy or lease the land was
exercised.
(2) Subsection (1) does not apply to the goods and services
tax.
(3) This section is subject to section 46.
This Part does not apply to a liability of a member or his or her
dependant to make a payment under an agreement if, before the member’s
call out day, a court orders that a party to the agreement may exercise all or
any of its remedies to enforce any security under the agreement (including enter
land if the security is land).
(1) This Part does not apply to a liability of a member or his or her
dependant to make a payment under an agreement if, while liable to make the
payment, the member or dependant:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(e) dies and his or her estate is being administered in bankruptcy or
insolvency.
(2) For the purposes of subsection (1), it does not matter whether
the bankruptcy, insolvency, assignment or death happened before or after the
commencement of this Act.
Member’s liability
(1) This Part does not apply in relation to a liability of a member to
make a payment as a trustee or in a representative capacity except to the extent
that, in incurring the liability, the member is acting for the benefit of, or on
behalf of, persons who are, or who include, the member or one or more dependants
of the member.
Dependant’s liability
(2) This Part does not apply in relation to a liability of a
member’s dependant to make a payment as a trustee or in a representative
capacity except to the extent that, in incurring the liability, the dependant is
acting for the benefit of, or on behalf of, persons who are, or who include, the
member, the dependant, or one or more other dependants of the member.
For the purposes of this Part, a person is liable to make a
payment if he or she is obliged to make it, even if the due date for
payment has not arrived.
To avoid doubt, a liability to which this Part applies may arise before
or after the commencement of this Act.
(1) The time for making a payment under an agreement to which this Part
applies is, by force of this section, postponed in accordance with this
Division.
(2) The time for making a payment of rates to which this Part applies is,
by force of this section, postponed in accordance with this Division.
(3) A time is postponed by this section even if the time had already
passed when the member began to render the relevant service.
(4) However, this section does not prevent a person from making a payment
before the time to which payment is postponed.
Payments by instalment
(1) If:
(a) the payments are to be made by the member or dependant by instalment;
and
(b) the first instalment falls due before the end of the member’s
protected period;
then:
(c) the time for paying the first unpaid instalment is postponed so that
the payment falls due at the end of the member’s protected period;
and
(d) the time for paying each later instalment is postponed for a period of
the same length as the member’s protected period.
Single payment
(2) If:
(a) only a single payment is to be made by the member or dependant;
and
(b) the payment falls due before the end of the member’s protected
period;
the time for making the payment is postponed so that it falls due at the
end of the member’s protected period.
Exception in section 51
(3) This section is subject to section 51.
Member dies while rendering defence service
(1) If the member dies while rendering defence service, the time for
making the payment is postponed so that the payment falls due on the first
anniversary of his or her death.
Dependant dies while member is rendering defence service
(2) If the person liable to make the payment is a dependant of a member
and the dependant dies while the member is rendering defence service, the time
for making the payment is postponed so that the payment falls due on the first
anniversary of the dependant’s death.
If both subsections (1) and (2) apply
(3) If both subsections (1) and (2) apply to a payment, the time for
making the payment is postponed to the later of the 2 applicable
times.
(1) If an agreement to which this Part applies allows interest to be paid
or accepted at a reduced or lower rate if it is paid on or before the due date,
interest remains payable at the reduced or lower rate even if (because of this
Division) it is not so paid.
(2) No interest is payable under any other law on the late payment of
rates on land if the payments were postponed under this Division.
(1) Interest is payable by the member or dependant on a payment under an
agreement that is postponed under this Division until the payment is
made.
(2) The interest is payable to the person to whom the postponed payments
are required to be made.
(3) The rate of the interest is:
(a) the rate or rates specified in the agreement concerned before the
interest falls due; or
(b) if no rate of interest is specified in the agreement—the rate
worked out in accordance with the regulations as in force at the start of the
member’s call out day.
(4) The interest is payable after the start of the postponement:
(a) at the times specified in the agreement for paying interest;
or
(b) if no times are specified or the times specified have passed—at
the end of 3 months after the start of the postponement and at the end of each
successive period of 3 months after that.
(1) Interest is payable by the member or dependant on a payment that is
covered by section 43, and that is postponed, until the payment is
made.
(2) The interest is payable to the person to whom the postponed payments
are required to be made.
(3) The rate of the interest is the rate worked out in accordance with the
regulations as in force at the start of the member’s call out
day.
(4) The interest is payable at the end of each quarter that ends after the
start of the postponement.
(1) While one or more payments are postponed, all proceedings against the
member or dependant concerned that were instituted before the commencement of
this Act:
(a) to enforce the payments; or
(b) in respect of, or because of, non-payment;
are stayed.
(2) It does not matter how or in what forum the proceedings were
instituted.
(3) Also, while one or more payments are postponed, all remedies against
the member or dependant to recover the payments are stayed.
(4) However, this Division does not:
(a) prejudice or affect any stayed proceeding or remedy; or
(b) affect the rights or obligations of anyone;
except so far as is necessary to give effect to this Division.
(5) As soon as the postponement ceases:
(a) all stayed proceedings may be continued; and
(b) all stayed remedies may be pursued.
(1) A court may order that all, or a specified part, of this Division not
apply in relation to a particular payment if the court is satisfied that the
operation of those provisions would cause hardship or unreasonable loss to
someone other than the member or dependant.
(2) In considering an application for an order, the court may make any
interlocutory or final order (including as to costs) that the court considers
just, having regard to:
(a) if the liability arose under an agreement—the terms and
conditions of the agreement; and
(b) the circumstances of the member or dependant; and
(c) the circumstances of the other person.
This Part does not affect the power of a security holder under an
agreement to which this Part applies to enforce the holder’s rights
against the member or dependant if:
(a) the security holder was, or is, in possession of the security at the
member’s call out day; or
(b) if the security is land—the security holder has appointed or
appoints a receiver who, at the member’s call out day, was, or
is:
(i) in possession of the land; or
(ii) receiving the rents and profits of the land.
This Part does not prevent or alter the effect of:
(a) any instrument concerning an agreement to which this Part applies that
is made on or after the call out day of the member concerned;
or
(b) any thing done under the instrument.
(1) If a member or his or her dependant is liable jointly with one or more
others to make a payment under an agreement, this Part applies to the
member’s or dependant’s liability in the same way as it would apply
if the member or dependant were solely liable.
(2) However, this Part does not apply to the liability of the other
parties who are jointly liable (but who are not members or dependants to whose
defence service this Part applies in their own right).
In working out the deadline imposed by a statute of limitations or other
Commonwealth, State or Territory law for bringing actions or pursuing other
remedies in respect of a liability to which this Part applies, the following
periods are not to be taken into account:
(a) the period while the time for making payments is postponed under this
Part;
(b) the period while proceedings, or proposed proceedings, are stayed
under this Part.
(1) The right of a member or of his or her dependant to commence a
proceeding, or to enforce a right, exercise a power or pursue a remedy, in
relation to a liability to which this Part applies, is not barred during the
preservation period:
(a) by the end of a period of limitation fixed by a Commonwealth, State or
Territory law; or
(b) by an instrument with respect to the right.
(2) The proceeding may be commenced, and the right enforced, power
exercised or remedy pursued, at any time before the end of the preservation
period.
(3) It does not matter whether the right arose or arises before or after
the commencement of this Act.
(4) This section also applies in relation to a person who became or
becomes a member or dependant of a member after the right arose.
(5) In this section:
preservation period means the combined consecutive periods of
the member’s absence on defence service and the member’s protected
period.
(1) This Part applies to continuous full time service rendered as a result
of a call out (see Part 3).
(2) Essentially, the Part protects members from bankruptcy proceedings
while the member is rendering defence service following a call out.
(1) During a member’s protected period, a bankruptcy notice must not
be issued, and a creditor’s petition must not be presented, in relation to
the member or a dependant of the member if the notice or petition relates to a
debt that arose before the member’s call out day for the relevant defence
service.
(2) Subsection (1) does not apply to a person who has leave of a
court with jurisdiction in bankruptcy or insolvency to issue the notice or
present the petition.
(3) The court must not grant leave unless the court is satisfied that,
having regard to all the circumstances of the case (including the conduct and
financial position of the member or dependant, and of the applicant), it would
be inequitable to refuse to grant leave.
(1) If:
(a) a creditor presents a bankruptcy petition to a court against a member
or his or her dependant; and
(b) the member or dependant satisfies the court that he or she was unable
to pay the relevant debts because of circumstances directly or indirectly
attributable to the member’s defence service;
the court may stay the proceedings under the petition for such time and
subject to such conditions as the court thinks fit.
(2) If:
(a) a court has, on the petition of a creditor, made a sequestration order
against a person who is a member or a dependant of a member; and
(b) on application, the court is satisfied that, if the sequestration
order is annulled:
(i) the business (if any) of that person will continue to be carried on by
the person or on his or her behalf; and
(ii) there will be a reasonable prospect of that business being carried on
successfully;
the court may make an order annulling the sequestration order.
(3) An order under subsection (2) annulling a sequestration order has
the same effect as an annulment of the sequestration order under the
Bankruptcy Act 1966.
(4) An order under subsection (2) may be made on such conditions
(including the reimbursement of the costs incurred by the petitioning creditor
in the bankruptcy proceedings) as the court thinks fit.
(1) This Part applies to continuous full time service rendered as a result
of a call out (see Part 3).
(2) Essentially, the Part allows for a member who has rendered defence
service after being called out to get access to loans and guarantees to enable
him or her to resume civilian life after returning from that service.
To enable a member to resume civilian life after he or she stops
rendering defence service, a prescribed authority may:
(a) make a loan to the member; or
(b) guarantee the repayment of a loan to a member and interest on the
loan.
(1) The amount of a loan made, or guarantee given, to a member must not be
more than the prescribed amount.
(2) If more than one loan is made or guarantee given to a member, the sum
of them must not be more than the prescribed amount.
A loan is made, or guarantee given, on the security and terms and
conditions that the prescribed authority determines in writing.
Interest is payable on a loan made under this Part, at the rate and under
the conditions prescribed by the regulations that were in force when the loan
was made.
(1) A prescribed authority must not make or guarantee a loan
unless:
(a) the requirements of subsections (2), (3) and (4) are met;
and
(b) the prescribed authority takes into account the matter in
subsection (5).
(2) The member must apply in the prescribed form for the loan or guarantee
within the prescribed period.
(3) The prescribed authority must approve the particular purpose for which
the loan is made or guarantee given.
(4) The prescribed authority must be satisfied that the applicant is
likely to be able to repay the amount of the loan made or guaranteed within a
reasonable period.
(5) In determining whether to make a loan or give a guarantee, the
prescribed authority must take into account the effect of the applicant’s
defence service on his or her capacity and opportunities to establish or
re-establish himself or herself in civilian life without assistance under this
Part.
Application may be made to the Administrative Appeals Tribunal for the
review of a decision to refuse to make a loan or give a guarantee.
(1) A prescribed authority may enter into an agreement with a State, a
Territory, a State or Territory authority or an ADI (the delegate)
for the delegate to perform those functions of the prescribed authority under
this Part that are specified in the agreement.
(2) If, under an agreement, the delegate makes or guarantees a loan to a
member, the delegate may take any security for the loan or guarantee in its own
name.
(3) For the purposes of this Part, a prescribed authority may make loans,
or give guarantees, to a State or Territory authority or an ADI that is itself
making loans or giving guarantees under an agreement.
(4) The prescribed authority must have the Finance Minister’s
consent:
(a) to enter into an agreement mentioned in subsection (1);
and
(b) to make a loan or give a guarantee mentioned in
subsection (3).
(1) A person who suffers loss or damage because another person
contravenes, or was involved in contravening, a provision of this Act may bring
an action in a court of competent jurisdiction to recover the amount of the loss
or damage from the other person. This is so even if the other person did not
commit an offence (if the contravention is also an offence).
(2) An action mentioned in subsection (1) may be brought by a
prescribed person on behalf of the person who suffers the loss or
damage.
(3) An action under subsection (1) may only be begun within 3 years
after the day on which the cause of action arose.
(4) This section does not affect any right or liability that a person has
under any other law.
(5) For the purposes of this section, a person is involved in a
contravention if, and only if, the person has:
(a) aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, by act or omission, directly or indirectly,
knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
(1) If a person is found guilty of an offence against this Act in relation
to another person, the court may (whether or not it imposes a penalty) order the
guilty person to pay the other person such compensation as the court thinks
reasonable.
(2) An order under subsection (1) may be enforced as if it were a
judgment of the court.
Application for injunctions
(1) If a person has engaged, engages or proposes to engage in conduct
consisting of an act or omission that constitutes an offence or other
contravention of this Act, either of the following persons may apply to a court
of competent jurisdiction for an injunction under subsection (2) or
(3):
(a) an interested person;
(b) a prescribed person acting on behalf of an interested
person.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in
conduct constituting an offence or other contravention of this Act, the court
may grant an injunction restraining the person from engaging in the conduct. The
court may grant the injunction:
(a) whether or not it appears to the court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind.
Mandatory injunctions
(3) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail to do an act; and
(b) the refusal or failure did, does or would constitute an offence or
other contravention of this Act;
the court may grant an injunction requiring the person to do the act. The
court may grant the injunction:
(c) whether or not it appears to the court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do the act;
and
(d) whether or not the person has previously refused or failed to do the
act.
Interim injunctions
(4) Before deciding an application for an injunction under this section,
the court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
Discharging or varying injunctions
(5) On application, the court may discharge or vary an
injunction.
No undertakings as to damages if applicant is prescribed
person
(6) A prescribed person cannot be required, as a condition of granting an
interim injunction, to give an undertaking as to damages.
Powers conferred are in addition to other powers of the
court
(7) The powers conferred on a court by this section are in addition to
(and do not limit) any other powers of the court.
(1) A court of competent jurisdiction may make any other order (including
a declaratory order) it thinks fit if a person enters a transaction, or brings a
proceeding, in contravention of this Act.
(2) The court may make an order under this section only on application
by:
(a) an interested person; or
(b) a prescribed person acting on behalf of an interested
person.
(3) An order under subsection (1) may be enforced as if it were a
judgment of the court.
(4) This section does not affect a person’s liability to a penalty
for a contravention of this Act.
(1) The following courts may hear and determine matters arising under this
Act:
(a) all State and Territory courts (including courts of summary
jurisdiction), so far as their jurisdiction extends to those matters;
(b) the Federal Court of Australia.
(2) However, this Act does not confer any criminal jurisdiction on the
Federal Court of Australia.
(3) To avoid doubt, nothing in this Act limits the jurisdiction of a court
or other body under any other law of the Commonwealth, a State or a Territory in
relation to matters covered by this Act.
(1) This Act applies to an unincorporated body or association (the
body) as if it were a person other than an individual, but it
applies with the following change.
Imposition of obligations
(2) The change is that obligations that would be imposed on the body are
imposed instead on:
(a) if the body is a partnership—each partner; or
(b) in any other case—each member of the committee of management of
the body;
but they may be discharged by any of the partners or any of those
members.
A service chief may, by signed writing, delegate all or any of his or her
powers and functions under this Act to an officer (within the meaning of the
Defence Act 1903) in that service.
(1) Without limiting its effect apart from this section, this Act also has
effect as provided by this section.
(2) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions of corporations to which paragraph
51(xx) of the Constitution applies.
(3) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place in the course of, or in
relation to, trade or commerce:
(a) between Australia and places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2
Territories.
(4) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place in a Territory.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) In particular, the regulations may prescribe penalties not exceeding a
fine of 10 penalty units for offences against the regulations.