Commonwealth Numbered Regulations

1985 No. 131 DEFENCE FORCE REGULATIONS (AMENDMENT) - REG 2

2. The Defence Force Regulations are amended by adding at the end the
following Parts:

"PART XIII-SUSPENSION AND FORFEITURE OF SALARY AND ALLOWANCES Interpretation

"59. (1) In this Part, unless the contrary intention appears-
'allowance' in relation to a member, is a reference to an allowance that,
apart from the provisions of this Part, is payable to the member under service
law in respect of his or her service in the Defence Force;
'foreign country' includes a state, province or similar division of a foreign
country;
'member' means a member of the Permanent Forces and includes any member of the
Defence Force rendering continuous full-time service;
'offence' includes an offence against the law of a foreign country;
'police custody', in relation to a member, means detention of the member by
one or more members of-

   (a)  the Australian Federal Police;

   (b)  a police force of a State or Territory; or

   (c)  a police force of a foreign country,
in connection with an offence which the member is alleged to have, or is
suspected of having, committed, whether or not the member has been charged
with that or any other offence during that custody;
'salary', in relation to a member, is a reference to salary that, apart from
the provisions of this Part, is payable to the member under service law in
respect of his or her service in the Defence Force;
'service law' means any law that applies in relation to a person by reason
only that the person is a member and includes a determination under section
58B or 58H of the Act.



"(2) For the purposes of this Part, the salary or allowances, or salary and
allowances-

   (a)  that is or are payable to a member; or

   (b)  that would, but for this Part, have been payable to a member, during a
        period, shall be deemed to accrue from day to day during that period.

"(3) In this Part, a reference to the absence of a member without leave shall
be read as a reference to any absence from, or cessation of performance of,
duty by the member that is not authorised under service law.

"(4) For the purposes of this Part, a member who is absent from duty-

   (a)  while in civil custody; or

   (b)  during a period of imprisonment imposed on the member upon conviction
        of an offence, shall not be regarded as being absent without leave.

"(5) In this Part, a reference to the absence of a member while in civil
custody shall be read as a reference to any absence from duty by the member
where, otherwise than under service law, the member is held in police custody
or is otherwise detained in custody pending, or during, the trial of the
member for an offence.

"(6) For the purposes of this Part, where a member-

   (a)  otherwise than under service law, is held in police custody or is
        otherwise detained in custody pending, or during, the trial of the
        member for an offence and, during the period of that detention, the
        member is authorised under service law to be absent from duty; or

   (b)  is undergoing a period of imprisonment imposed on the member upon
        conviction of an offence, the member shall not be regarded as being
        absent while in civil custody. Suspension of salary and allowances

"60. (1) Subject to this Part, where a member is absent without leave, or is
absent while in civil custody, for 24 hours or more, payment to the member of
his or her salary and allowances is suspended.

"(2) Subject to sub-regulation (3), a suspension under sub-regulation (1) in
respect of the salary and allowances of a member operates in relation to the
salary and allowances that accrue to the member on and after the day following
the day on which the member first so became absent.

"(3) A suspension under sub-regulation (1) in respect of the salary and
allowances of a member who has been absent without leave or while in civil
custody does not operate in relation to the salary or allowances that accrue
to the member after he or she returns to duty. Certificate of commanding
officer

"61. (1) Where a member has been absent without leave and that member's
commanding officer has reasonable grounds for believing-

   (a)  that that absence was not an offence against service law; or

   (b)  that there was a reasonable excuse for the absence, the commanding
        officer shall issue a certificate to that effect.

"(2) Where a certificate is issued under sub-regulation (1) in respect of a
member's absence without leave, the suspension effected by regulation 60 in
respect of that absence ceases.

"(3) Where a commanding officer, who has issued, under sub-regulation (1), a
certificate in respect of the absence without leave of a member, finds that
there are no reasonable grounds for the belief on the basis of which the
certificate was issued, the commanding officer shall, by writing, revoke the
certificate.

"(4) Subject to this Part, where a certificate issued under sub-regulation (1)
in respect of a member's absence without leave is revoked under sub-regulation
(3), payment to the member of his or her salary and allowances is suspended.

"(5) A suspension under sub-regulation (4) in respect of the salary and
allowances of a member operates in relation to-

   (a)  any salary and allowances that accrued to the member during the
        period-

        (i)    commencing at the end of the day on which he or she first so
               became absent; and

        (ii)   ending immediately before the day on which the certificate was
               revoked,
and which remained unpaid when the certificate was revoked; and

   (b)  subject to sub-regulation (6), the salary and allowances that accrue
        to the member on and after the day on which the certificate was
        revoked.



"(6) A suspension under sub-regulation (4) in respect of the salary and
allowances of a member does not operate in relation to the salary and
allowances that accrue to the member after he or she returns to duty. Effect
of suspension

"62. (1) Where payment of the salary and allowances of a member is suspended
under this Part, no part of the salary or allowances to which that suspension
relates is payable to that member.

"(2) The suspension under this Part of payment of the salary and allowances of
a member does not affect any right that the member may have to receive payment
of the whole or any part of the salary or allowances to which that suspension
relates if that suspension ceases otherwise than by virtue of a forfeiture of
that salary or those allowances, or both. Cessation of suspension-absence
without leave

"63. (1) In this regulation-
'duty', in relation to a member, means duty under the command of the member's
commanding officer;
'prescribed period', in relation to a member who has been absent without
leave, means the period of 14 days commencing at the end of the day on which
the member returns to duty;
'suspension', in relation to a member, means the suspension under this Part of
the payment of salary and allowances to that member by reason of the absence
without leave of that member.



"(2) Where a member subject to a suspension returns to duty after being absent
without leave, that suspension continues to apply to the salary and allowances
to which it relates after the return to duty of the member and, unless it
earlier ceases, ceases-

   (a)  if within the prescribed period for that member the member is not
        charged under service law with an offence on the ground of that
        absence or any part of it-at the end of that period;

   (b)  if within the prescribed period for that member the member is so
        charged and a direction is given that the charge be not proceeded
        with-when that direction is given;

   (c)  if within the prescribed period for that member the member is so
        charged and the charge is dismissed-when the charge is dismissed;

   (d)  if within the prescribed period for that member the member is so
        charged and the member is acquitted of the offence-when the member is
        acquitted; or

   (e)  if within the prescribed period for that member the member is so
        charged and the charge is found to have been proved but a decision is
        given by the service tribunal hearing the charge not to convict the
        member of an offence-when that decision is given.

Cessation of suspension-civil custody

"64. (1) In this regulation, 'suspension', in relation to a member, means the
suspension under this Part of the payment of salary and allowances to that
member by reason of the absence from duty of that member while in civil
custody.

"(2) Where a member subject to a suspension returns to duty from civil custody
having been in civil custody by reason of an act which the member is alleged
to have done, or is suspected of having done, and during the period of that
absence-

   (a)  the member was not charged under a law, other than service law, with
        an offence constituted by the doing of that act; or

   (b)  the member was so charged and-

        (i)    the charge was withdrawn;

        (ii)   the charge was dismissed;

        (iii)  the member was acquitted of the offence; or

        (iv)   the charge was found to be proved but a decision was made by
               the court hearing the charge not to convict the member of an
               offence, that suspension ceases when the member so returns to
               duty.

"(3) In sub-regulation (2), the reference to the doing of an act includes a
reference to the omission to do an act. Forfeiture of salary and
allowances-absence without leave

"65. Where a member is absent without leave for a period that continues for 24
hours or more and-

   (a)  the member is convicted of being absent without leave in respect of
        that period;

   (b)  during that absence the member, under a law other than service law, is
        convicted of an offence for which a sentence of imprisonment is
        imposed; or

   (c)  that absence is the reason for which the member is discharged from an
        arm of the Defence Force, the member, upon that conviction or
        discharge, as the case may be, forfeits all salary and allowances that
        accrued to the member during the period-

   (d)  that begins at the end of the day on which the member first became so
        absent; and

   (e)  that ends at the end of the day on which the member ceased to be so
        absent.

Forfeiture of salary and allowances-civil custody

"66. (1) Where by reason of an act which a member is alleged to have done, or
is suspected of having done, the member is-

   (a)  absent while in civil custody for a period that continues for 24 hours
        or more; and

   (b)  convicted under a law, other than service law, of an offence which is
        constituted by the doing of that act, the member, upon that
        conviction, forfeits all salary and allowances that accrued to the
        member during the period-

   (c)  that begins at the end of the day on which the member first became so
        absent; and

   (d)  that ends at the end of the day on which the member ceased to be so
        absent.



"(2) In sub-regulation (1), the reference to the doing of an act includes a
reference to the omission to do an act. Forfeiture of salary and
allowances-imprisonment

"67. (1) Where a member is convicted of an offence for which a sentence of
imprisonment is imposed, the member, upon that conviction, forfeits all salary
and allowances that accrue to the member during the period-

   (a)  that begins at the end of the day on which the member is so convicted;
        and

   (b)  that ends at the end of the day on which the member ceases to serve
        that sentence, or ceases to be a member, whichever first occurs.



"(2) A period of imprisonment referred to in sub-regulation (1) does not
include weekend or periodic detention.

"(3) In sub-regulation (2), 'weekend or periodic detention' means detention or
imprisonment pursuant to a law, other than service law, providing for-

   (a)  weekend detention or imprisonment; or

   (b)  periodic detention or imprisonment. Forfeiture of salary and
        allowances-detention under service law

"68. (1) Where under service law a member is undergoing the punishment of
detention for a period, the member forfeits-

   (a)  so much of the member's salary that accrues during that period as
        exceeds the amount of salary that would have accrued to the member
        during that period if the member had during that period been a normal
        entry recruit undergoing basic recruit training as specified in
        Determination 0101, Salary of Permanent Force Members, made under
        section 58B of the Act; and

   (b)  all allowances that accrue to the member in respect of that period,
        other than the allowance provided for under Determination 0805,
        Detention Allowance, made under section 58B of the Act.



"(2) Where under service law a member of the Emergency Forces or the Reserve
Forces rendering service other than continuous full-time service is undergoing
the punishment of detention for a period, that member forfeits-

   (a)  so much of the member's salary that accrues during that period as
        exceeds the amount of salary that would have accrued to the member
        during that period if the member had during that period been a normal
        entry recruit undergoing basic recruit training as specified in
        Determination 0199, Pay of Reserve Force Members, made under section
        58B of the Act; and

   (b)  all allowances that accrue to the member in respect of that period.



"(3) In sub-regulation (2), 'allowance', 'salary' and 'service law' have the
same respective meanings in relation to a member referred to in that
sub-regulation as they have in relation to a member. Conviction quashed or set
aside

"69. (1) In this regulation, 'member' includes a member referred to in
sub-regulation 68 (2).

"(2) Where under this Part the salary and allowances of a member have been
forfeited in whole or part by reason of the conviction of the member for an
offence and-

   (a)  subject to paragraph (b), that conviction is quashed or set aside, an
        amount equal to the amount of the salary and allowances so forfeited
        is payable to the member;

   (b)  that conviction is quashed or set aside and another conviction
        substituted or the member is ordered to be tried again for the offence
        or for another offence, no amount referred to in paragraph (a) is
        payable to the member; or

   (c)  that conviction is quashed or set aside and at a further trial of the
        member for that offence or another offence the court or service
        tribunal acquits the member or decides that the member should not be
        convicted of an offence, the amount referred to in paragraph (a) is
        payable to the member.

Death of a member during suspension

"70. (1) Where-

   (a)  a member dies while absent without leave or the Minister directs in
        writing that the death of the member is to be presumed to have
        occurred while the member was absent without leave; and

   (b)  payment of salary and allowances to the member was, at the time of
        death or presumed death of the member, suspended under this Part, the
        Minister shall-

   (c)  if the Minister decides that there are reasonable grounds for
        believing that the member did not have a reasonable excuse for that
        absence-by writing order the forfeiture of all salary and allowances
        that accrued to the member during the period-

        (i)    that began at the end of the day on which the member first
               became so absent; and

        (ii)   that ended at the end of the day on which the member died or
               was presumed to die; or

   (d)  if the Minister decides that there are no reasonable grounds for
        believing that the member did not have a reasonable excuse for that
        absence-that suspension shall then cease.



"(2) Where a member dies while absent in civil custody and payment of salary
and allowances to the member was, at the time of death, suspended under this
Part, that suspension shall then cease. Review of decisions

"71. (1) Where the Minister makes a decision to order the forfeiture of salary
and allowances of a member under sub-regulation 70 (1), the Minister shall, by
notice in writing given not later than 30 days after the date of the decision,
inform the person or persons whose interests are affected by the decision of
the making of the decision and of the grounds for the decision.

"(2) An application may be made to the Administrative Appeals Tribunal for
review of a decision referred to in sub-regulation (1).

"(3) A notice referred to in sub-regulation (1) shall include a statement to
the effect that, subject to the Administrative Appeals Tribunal Act 1975,
application may be made to the Administrative Appeals Tribunal for review of
the decision to which the notice relates by or on behalf of a person whose
interests are affected by the decision.

"(4) A failure to comply with the requirements of sub-regulation (3) in
relation to a decision shall not be taken to affect the validity of a
decision.

"(5) For the purposes of sub-section 25 (6) of the Administrative Appeals 
Tribunal Act 1975 , the operation of sub-section 43 (1) of that Act is, in
relation to an application referred to in sub-regulation (2), modified by
omitting paragraphs (a), (b) and (c) and substituting the following
paragraphs:

'(a) affirming the decision under review; or

   (b)  setting aside the decision under review and making a decision, in
        substitution for the decision so set aside, to pay to the legal
        personal representative of a member referred to in sub-regulation 70
        (1) of the Defence Force Regulations an amount equal to the amount of
        all salary and allowances that accrued to the member during the period
        referred to in paragraph 70 (1) (c) of those Regulations.'.

Recovery of forfeited amounts

"72. (1) Where a member receives an amount which comprises in whole or part
salary or allowances that have been forfeited under this Part, the member
shall repay to the Commonwealth an amount equal to the amount of that salary
or those allowances.

"(2) Without affecting the right of the Commonwealth to recover by any other
means an amount repayable by a member under sub-regulation (1), an amount
equal to that amount may be deducted from any salary or allowances payable to
the member.
                         "PART  XIV-PAYMENT  OF  FINES
Re-imbursement of the Commonwealth

"73. (1) In this regulation-
'court' includes a court of a foreign country;
'foreign country' includes a state, province or similar division of a foreign
country;
'offence' means an offence against any law other than the Defence Force 
Discipline Act 1982 and includes an offence against the law of a foreign
country.

"(2) Where a member charged with an offence is ordered by a court to pay an
amount as a fine or other pecuniary penalty or as damages, reparation,
compensation or costs and the Commonwealth pays the whole or part of that
amount, the amount so paid is a debt due and payable by the member to the
Commonwealth.

"(3) Without affecting the right of the Commonwealth to recover by any other
means a debt payable by a member under sub-regulation (2), an amount equal to
the amount of that debt may be deducted from any salary or allowances payable
to the member.".