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This Digest was available from 13 December 1996.
Defence Legislation Amendment Bill (No. 2) 1996
Date Introduced: 21 August 1996
House: House of Representatives
Portfolio: Defence
Commencement: Schedules 1 and 3 commence on a date fixed by Proclamation
and the remainder of the Act will commence either on Royal Assent or six
months and a day after Royal Assent.
The Bill will provide for:
The Defence Act 1903 (the Principal Act) provides for the administration of the Defence Forces and sets out how people can be appointed to the forces, how they are promoted and remunerated and people's general liability to serve during times of war. It also establishes the Australian Navy, the Australian Army and the Australian Air Force as the three arms of the Defence Force.
The Defence Annual Report (1995-96) states at p191 that there were 55,580 people in the Permanent component of the Defence Forces (of these 303 were unpaid members) and an additional 385 Reserve members serving on full-time duty as at 30 June 1996. Enlistments for the period July 1995-June 1996 were 6,221 whereas 6,763 people left the forces in the same period.
As a proportion of GDP, Defence outlays were 2.1% in 1995-96.(1)
The Defence Annual Report further states:
The current legislative framework does not allow members or officers of one arm of the Defence Force to transfer to any other arm without resigning from their current force and then enlisting with the other force.
Items 1-3 of Schedule 1 amend the Air Force Act 1923 so that members transferred to the Air Force, the Air Force Emergency Force, or the Australian Air Force Reserve, from either the Australian Army or the Australian Navy are included as members of the Permanent Air Force, the Air Force Emergency Force, or the Australian Air Force Reserve respectively.
Item 4 inserts a new section 27AA into the Defence Act 1903. The provision will allow the Chief of the Army to approve transfers of Army officers to either the Australian Navy or the Australian Air Force providing that the officer consents to the transfer and the Chief of the receiving service approves the transfer.
The written instrument of transfer must specify the date that the transfer takes effect as well as the period of service for which the officer is appointed in the new service. The rank and seniority of the officer must be specified and the part of the arm of the new service to which they will be appointed.
Any return of service obligation (which is a compulsory minimum period of service to be done by a member who has received training or an overseas posting, as determined by the Chief of the General Staff) that the member already had, is conveyed to the new service.
The previous service of the member is deemed to have been in the new service. So service done in the Army counts (if the member transfers to the Navy) as if it had been done in the Navy.
Items 5-7 amend section 32 of the Principal Act so that persons transferring to various parts of the Army from the Navy or the Air Force are included in the category of Army members.
Items 8-9 similarly ensure that persons transferring to either the active or the inactive Army Reserve (from the Navy or Air Force) automatically become Army Reservists.
Item 10 is the equivalent provision to Item 4 above, but for people other than officers. Thus soldiers can be transferred to the Navy (as sailors) or to the Air Force (as airmen). In relation to the Air Force, the proposed section only refers to 'airman' and not to 'airman or airwoman'. The term 'airman' is defined in section 4 of the Principal Act as being a member 'other than an officer'. A 'member' is defined as 'any officer, sailor, soldier and airman'. Nevertheless, section 23 of the Acts Interpretation Act 1901 provides that unless the contrary intention appears words importing a gender include every other gender.
Items 11-13 make consequential amendments to subsection 120A of the Principal Act. This will allow the Chief of General Staff to delegate the power to approve the transfers (described above) to a person of Brigadier/Commodore/Air Commodore rank, as appropriate.
Naval Defence Act 1910
Item 14 amends the Naval Defence Act 1910 so as to enable officers of the Navy to transfer to either the Army or the Air Force. The provision mirrors item 4 above, in that the Chiefs of the Navy and either the Army or Air Force (whichever is applicable) must approve the transfer and the officer must consent.
The written approval must also specify (as with item 4 above) when the transfer takes effect and how long the officer is appointed for. Which branch of the new service the officer is going to and the rank and seniority that the officer will hold, must also be specified.
As with item 4 above, any return of service obligation that a member had for previous training etc will transfer with them to the new service. Any resignation tendered by the member whilst such a period of service remains owing, may be rejected by the Chief of the relevant force (without reference to the Governor-General). Similarly, any prior service will be deemed to have been done in the new service.
Item 15 amends section 20(b) of the Naval Defence Act 1910 to include, as members of the permanent naval forces, members who have transferred across to the Navy under the above scheme.
Item 16 similarly amends section 21(b) of the same act to provide that the Naval Emergency Reserve Forces includes members who have transferred across from the Army or Air Force.
Item 17 likewise amends section 22(b) to provide that the Australian Naval Reserve comprises members who have transferred across from the Army or Air Force.
Item 18 inserts a new section at the end of Part III which will allow the transfer of sailors to other arms of the Defence Force. Proposed section 30A gives the Chief of Navy the authority to effect such a transfer provided that the person being transferred and the Chief of the relevant (receiving) arm of the Defence Force both give their consent. The written instrument of transfer must specify the date it takes effect, the part of the arm of the Defence Force that the person is being transferred to, the rank that they are to hold (including seniority) and the period of service which they have enlisted for.
As with item 4 above, if the person being transferred is under a 'return of service' obligation, then that obligation carries over with them to the new service. This will prevent people under such an obligation from transferring to a new service and then discharging from the new service to avoid completing their service obligation.
The person's service history is taken to have been rendered in the new service 'for all purposes connected with the person's enlistment or service'.
Items 19 & 20 allow the Chief of Army and the Chief of Air Force to delegate the powers described in items 14 & 18 above to respectively someone of Brigadier or Air Commodore rank or higher.
Part 1 of Schedule 2 of the Bill amends all of the titles of the respective head of each force to 'Chief of Navy', 'Chief of Army', and 'Chief of Air Force' as well as amending the generic term 'chief of staff' to 'service chief'.
Part 2 of Schedule 2 of the Bill makes consequential amendments to the Australian National Maritime Museum Act 1990, the Australian War Memorial Act 1980, the Defence Act 1903, the Defence Force Retirement and Death Benefits Act 1973, the Defence Force Retirement Benefits Act 1948, the Defence Housing Authority Act 1987, the Defence (Parliamentary Candidates) Act 1969, the Defence (Re-establishment) Act 1965, the Defence (Visiting Forces) Act 1963, the Military Superannuation and Benefits Act 1991, the Naval Defence Act 1910, the Ombudsman Act 1976, the Remuneration and Allowances Act 1990 and the Remuneration Tribunal Act 1973. All references to the 'Chief of Naval Staff' will be replaced with 'Chief of Navy'.
Part 3 of Schedule 2 of the Bill makes consequential amendments to the Australian War Memorial Act 1980, the Defence Act 1903, the Defence Force Retirement and Death Benefits Act 1973, the Defence Force Retirement Benefits Act 1948, the Defence Forces Retirement Benefits (Pension Increases) Act 1961, the Defence Housing Authority Act 1987, the Defence (Parliamentary Candidates) Act 1969, the Defence (Re-establishment) Act 1965, the Defence (Visiting Forces) Act 1963, the Military Superannuation and Benefits Act 1991, the Ombudsman Act 1976, the Remuneration and Allowances Act 1990 and the Remuneration Tribunal Act 1973. These amendments will substitute 'Chief of Army' for the existing phrase 'Chief of the General Staff'.
Part 4 of Schedule 2 of the Bill will substitute 'Chief of Air Force' for the existing 'Chief of the Air Staff' in the following pieces of legislation: the Air Force Act 1923, the Australian War Memorial Act 1980, the Defence Act 1903, the Defence Force Retirement and Death Benefits Act 1973, the Defence Force Retirement Benefits Act 1948, the Defence Housing Authority Act 1987, the Defence (Parliamentary Candidates) Act 1969, the Defence (Re-establishment) Act 1965, the Defence (Visiting Forces) Act 1963, the Military Superannuation and Benefits Act 1991, the Ombudsman Act 1976, the Remuneration and Allowances Act 1990 and the Remuneration Tribunal Act 1973.
Part 5 of Schedule 2 of the Bill similarly amends the relevant sections of the following pieces of legislation to read 'service chief' instead of 'chief of staff': the Defence Act 1903, the Defence Force Discipline Act 1982, the Defence Force Discipline Appeals Act 1955, the Defence Housing Authority Act 1987, the Defence (Parliamentary Candidates) Act 1969, the Defence (Visiting Forces) Act 1963, and the Income Tax Assessment Act 1936.
Part 6 of Schedule 2 of the Bill makes further consequential amendments to the following pieces of legislation: the Defence Act 1903, the Defence Force Discipline Act 1982, the Defence Force Re-organization Act 1975, the Defence Housing Authority Act 1987, the Defence (Parliamentary Candidates) Act 1969, the Military Superannuation and Benefits Act 1991, and the Office of National Assessments Act 1977.
Schedule 3
Item 1 of Schedule 3 will amend the Defence Act 1903 so as to increase the powers of the 'Chief of Army' to reject resignations of officers of Major rank or higher in certain circumstances. The effect of the amendment will be that if an officer of Major rank or higher, who has been promoted to that rank within 12 months of the date of purported resignation, attempts to resign, the Chief of Army may reject that resignation without reference to the Governor-General. Officers hold their positions 'at the Governor-General's pleasure', although the power to accept certain resignations has already been delegated to the current Chief of the General Staff.
Item 2 of the Schedule inserts new sub-section 120A(1) which allows the Governor-General to delegate to the Chief of Army the power to promote officers to the rank of Colonel or above for a specified period (called limited tenure promotions).
Item 3 of the Schedule proposes an amendment to section 13(2)(ba) of the Naval Defence Act 1910 which will increase the powers of the Chief of Navy by allowing that person to reject the resignation of a Lieutenant-Commander (one rank lower than currently permitted) or below if the person attempting to resign has served less than a year after a promotion. In the absence of sub-section 13 (2), this power would be exercisable by the Governor-General.
Item 4 of Schedule 3 proposes to insert a new sub-section 44B(1) which will allow the Governor-General to delegate the power to promote officers to the rank of Captain (or a higher rank) for a specified term. The power may be delegated to the Chief of the Defence Force or the Chief of the Navy.
1. p15 Defence Annual Report 1995-96.
2. Ibid.
Susan Downing Ph. 06 277 2784
12 December 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.
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ISSN 1323-9031
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1996.
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Last updated: 11 December 1996