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This Digest was available from 22 August 1996.
Defence Legislation Amendment Bill (No. 1) 1996
Date Introduced: 26 June 1996
House: House of Representatives
Portfolio: Defence Industry, Science and Personnel
Commencement: Upon Royal Assent with the exception of Items 1 to
3 of Schedule 1, which are taken to have commenced on 28 May 1992.
The Defence Legislation Amendment Bill (No. 1) 1996 (the Bill) corrects a reference in the Defence Force Discipline Act 1982 to offences against the NSW criminal law, to bring the legislation into line with the 1992 change in status of the ACT criminal law.
The Bill will amend the Defence Force (Home Loans Assistance) Act 1990 so as to extend eligibility to members previously unable to apply for a subsidised loan. Eligibility is extended by reducing the qualifying period from 6 years to 5 years and including statutory training as effective service.
The Defence Force Discipline Act 1982 (the 'DFDA') establishes a disciplinary regime for the three arms of the Defence Forces: the Royal Australian Navy; the Australian Army; and the Royal Australian Air Force.
The DFDA prescribes offences that apply to members of the Defence Force and to certain civilians (called 'defence civilians') who accompany the Defence Forces. Part III of the DFDA lists the offences, which include peculiarly 'military' activities such as:
There are also general offences, such as:
The existing section 61 of the DFDA makes it an offence for a defence member or defence civilian to do any activity that would constitute an offence against the criminal law of the Jervis Bay Territory, whether the activity occurred within that territory or somewhere else. This section operates to include a range of offences not spelled out in the DFDA, including the more serious offences of murder and rape (although there are certain safeguards in relation to charging a person with offences, such as treason, murder, manslaughter and bigamy in that it is necessary to obtain the permission of the Director of Public Prosecutions to proceed).
With respect to section 61 there is currently an anomaly in the DFDA relating to references to the Crimes Act 1900 of NSW. In fact the relevant law since 28 May 1992 has been the Crimes Act 1900 of the Australian Capital Territory. This issue is covered in more depth below and also in the Explanatory Memorandum at pp3-4. The Bill seeks to retrospectively correct this anomaly to 28 May 1992. The 28 May 1992 was the commencement date of the Crimes Legislation (Status and Citation) Act 1992 of the Australian Capital Territory.
The Judge Advocate General's annual report on the DFDA indicates that for the period 1 January 1993 to 31 December 1994, no charges were proceeded with under section 61 of the DFDA. The total trials conducted in the period 1 January 1994 to 31 December 1994 numbered:
Army 2723
Navy 1567
Air Force 243(1)
No statistics for section 61 charges are available for the period before that as the earlier Judge Advocate General's reports do not break down the statistics by the type of charges. However, there has been at least one use of section 61 since the relevant date (28 May 1992). This was the Navy Court Martial convened on 13 November 1992 and commencing on 9 December 1992 concerning allegations of sexual assault on HMAS SWAN(2). However, there was no conviction recorded in that case and so the retrospective action of the proposed provision will not affect the case.
In addition to prescribing offences, the DFDA creates tribunals for the trial, conviction and punishment of such offences. Depending upon the seriousness of the charge, it may be heard by a Disciplinary Officer, a Summary Authority, a Commanding Officer, a Defence Force Magistrate or a Court Martial. The more serious charges attract penalties including imprisonment, dismissal from the Defence Force, reduction in rank, detention, loss of seniority and fines. There are some discrepancies in the sentencing options for a similar offence, as between the three services. The Defence Force Discipline Appeals Act 1955 provides machinery for appeals against, and reviews of, convictions and punishments. This legislation also deals with ancillary matters such as the investigation of service offences, trial procedures, and the serving of sentences.
The Defence Annual Report (1994-95) states at p201 that the total number of personnel employed in Defence, uniformed and civilian, full-time and part-time as at 20 June 1995, exceeded 106,000 and this cost $3.8 billion (39%) of the $9.7 billion outlay in 1994-95(3). At p8 of the same report, it is stated that the Permanent Defence Force strength as at 30 June 1995 was 58,188(4).
The Annual Report stated (p8) that in relation to Defence Force Housing:
Outlays for Defence Housing in 1994-95 were $217.9m which was $0.6m less than the Revised Estimate of $218.5m. This variation was due to lower than expected rental charges partly offset by a shortfall in Miscellaneous Receipts(5).
The relevant legislation applicable to the Defence Home Owner Scheme is the Defence Force (Home Loans Assistance) Act 1990. The Defence Housing Authority (DHA), established under the Defence Housing Authority Act 1987, administers the scheme for the Department of Defence. Defence Members who have completed six years of service are eligible to apply for a subsidised loan of between $10,000 and $40,000. The National Australia Bank (NAB) and the Commonwealth have an agreement whereby the Commonwealth provides monthly interest subsidies on the loans made by the NAB to eligible defence members.
As at 30 June 1995 there were a total of 1,524 subsidy recipients. The Defence Home Owner Scheme aims to:
In 1994-95 the Commonwealth paid $1,330,758 in subsidy payments. In addition, the operational costs of the scheme comprised a $412,564 annual management fee (paid to DHA by the Department of Defence) and $53,764 for fees paid by DHA in respect of applications for 'Entitlement Certificates'. The practice of a Defence Member applying for an Entitlement Certificate (prior to applying for a loan) is encouraged by the DHA.
The Defence Housing Authority Act 1987 and the Defence Force (Home Loans Assistance) Act 1990 are both currently listed in the Commonwealth Legislation Review Schedule announced by the Treasurer the Hon. Peter Costello MP on 28 June 1996. The reviews are not due to commence until 1997-98 and 1998-99 respectively.
The Explanatory Memorandum (p2) estimates that the financial impact of the proposed chances will:
cost $5.9 million in the financial year 1996/97, rising to $12 million and $16 million in the financial years 1997/98 and 1998/99, respectively. These costs are to be absorbed within Defence global budget allocations.(7)
Items 1-3 of Schedule 1 of the Bill amend the definition of a territory offence to reflect the Crimes Act 1900 of the Australian Capital Territory as it applies to the Jervis Bay Territory rather than the Crimes Act 1900 of New South Wales.
Item 4 of Schedule 1 ensures that convictions, orders, punishments or documents made under the DFDA after 28 May 1992 are still valid notwithstanding references in the DFDA to the Crimes Act 1900 of New South Wales.
Remarks
One of the objectives of having a catch all provision like the existing section 61 (described above in the background) is that defence members can be prosecuted under the DFDA for offences committed overseas whilst on deployment or exercises. However, section 61 linked offences in the Jervis Bay Territory to the DFDA, which defines such offences by referring to the NSW Crimes Act 1900. Since the ACT Crimes Legislation (Status and Citation) Act 1992 commenced, the relevant law should have been cited as the Crimes Act 1900 of the Australian Capital Territory in its application to the Jervis Bay Territory. This is because the Jervis Bay Territory Acceptance Act 1915 makes the laws in force in the Australian Capital Territory apply to the Jervis Bay Territory. Prior to 1992, the NSW Crimes Act 1900 was in force in the ACT (and thus in the Jervis Bay Territory). However, since 1992 the ACT Crimes Act 1900 has applied there. The DFDA was not amended in 1992 to reflect the change of status of the ACT criminal law.
As a result there may be doubts about the lawfulness of any convictions obtained under section 61 (which is not ascertainable from the punishment statistics available to date from the annual Judge Advocate General's reports). The Bill seeks to retrospectively validate such prosecutions (if indeed any) by providing that the amendments should be taken to have commenced on 28 May 1992 (the date that the ACT Crimes Legislation (Status and Citation) Act 1992 commenced).
Items 5-13 inclusive of Schedule 1 of the Bill amend the provisions of the Defence Force (Home Loans Assistance) Act 1990 (the DF(HLA) Act) to reduce the period of service required to become eligible for the home loan from the current 6 years down to 5 years of either full-time or composite service.
Item 14 of Schedule 1 extends the definition of eligible persons to include members of the Reserve Forces or Emergency Forces, who complete the requisite training period and are not otherwise covered by the Defence Service Homes Act 1918.
Item 18 of Schedule 1 defines composite service. This applies to people who undertake some form of statutory training with one of the services before becoming a full-time member. For example, trainees would accrue 0.625 of a year towards their 5 years qualifying service, for each year that they spent undergoing statutory training.
Items 24-28 of Schedule 1 will increase the amount of the available loan from $40,000 to $80,000.
Items 29-40 of Schedule 1 amend the provisions regarding the payment of subsidy on a loan so as to extend the class of eligible people. The requirement for 'effective full-time service' has been replaced with the term 'subsidy service' which includes statutory training obligations as well as full-time service.
The subsidy amount is 'calculated on the average monthly interest to be paid over the life of a 25 year loan - the monthly subsidy is 40% of this.'(8)
Item 44 of Schedule 1 shields existing arrangements for 'subsidised borrowers' from the new amendments.
Items 42-43 of Schedule 1 increase the maximum amount of a loan available to a couple with a joint entitlement from $80,000 to $160,000.
Susan Downing Ph. 06 277 2784
16 August 1996
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ISSN 1323-9032
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1996.
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Last updated: 16 August 1996