EXPLANATORY STATEMENT

 

 

                        Select Legislative Instrument 2006 No. 141

 

 

 Issued by the authority of the Parliamentary Secretary for the Minister for Defence

 

                                                  Defence Act 1903

                                                  Naval Defence Act 1910

                                                  Air Force Act 1923

 

               Cadet Forces Amendment Regulations 2006 (No. 1)

 

 

Subsection 124(1) of the Defence Act 1903, subsection 45(1) of the Naval Defence Act 1910 and section 9 of the Air Force Act 1923 (the relevant Acts), provide, in part, that the Governor-General may make regulations, not inconsistent with the relevant Acts prescribing all matters which by the relevant Acts are required or permitted to be prescribed or which are necessary or convenient to be prescribed, for securing the good government of the Defence Force, or for carrying out or giving effect to the relevant Acts. Subsection 62(7) of the Defence Act 1903, subsection 38(7) of the Naval Defence Act 1910 and subsection 8(7) of the Air Force Act 1923 provide, in part, for the discipline of their respective cadet organisations.

 

The Cadet Forces Regulations 1977 (the Principal Regulations) made under the relevant Acts provide for, inter alia, the conditions of service for members of the respective cadet organisations.

 

 In October 2003, the Senate referred the matter of the effectiveness of Australia's military justice system to the Senate Foreign Affairs, Defence and Trade References Committee for inquiry and report.  The Committee tabled its report on 16 June 2005.

Among the recommendations of the Committee was the recommendation that the Australian Defence Force take steps immediately to draft and make regulations dealing with the Australian Defence Force Cadets to ensure that the rights and responsibilities of Defence and cadet staff are defined.  The Government agreed with this recommendation and advised that the Principal Regulations should be amended.

 

The amendments to the Principal Regulations strengthen the administrative control the Service Chiefs can exercise over members of their respective Cadet organisations.  They establish a Code of Conduct, establish remedies and sanctions where the Code is breached, and provide for review of action processes for Cadet staff and cadets.  There are also minor amendments relating to modernising language, delegations, the age range for cadets, as well as the removal of a compulsory retirement age.

 

Details of the Regulations are outlined in the Attachment .

 

The relevant Acts specify no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

There has been no consultation in the making of this instrument as it relates to the management of and the service of members of the Australian Defence Force.

 

 

 

 

                                                                          Authority: Subsection 124(1)

                                                                                           of the Defence Act 1903;                                                                     

                                                                                           Subsection 45(1) of the

                                                                                           Naval Defence Act 1910; and

                                                                                           Section 9 of the Air Force

                                                                                            Act 1923.

 

 

 

 

 

 

 

0602343A

 

                                                                                              Â                    Attachment

 

Details of the Cadet Forces Amendment Regulations 2006 (No. 1)

 

Regulation 1 identifies these regulations as the Cadet Forces Amendment Regulations 2006 (No. 1).

 

Regulation 2 provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 provides that the Regulations amend the Cadet Forces Regulations 1977 (the Principal Regulations).

 

Schedule 1- Amendments

 

Item [1] substitutes a new heading by removing the Roman numeral I and replacing it with the number 1.

 

Item [2] inserts a definition of the word "Code", meaning the Code of Conduct mentioned in regulation 16, after the definition of "cadet force" in regulation 2.

 

Item [3] substitutes a new subregulation 3(1) to provide that a service chief may delegate his powers and functions, other than the power of delegation, and that the instrument of delegation may contain directions that the delegate must comply with.

 

Item [4] substitutes a new heading for the existing Part II by removing the Roman numeral and replacing it with the word and number "Part 2".

 

Item [5] amends regulation 4 by modernising the spelling of the word "organisation" in the heading to the regulation.

 

Item [6] amends regulation 5 by inserting a new subregulation 5(4) to provide that an officer or instructor may be reappointed for a period as specified in an instrument of appointment or reappointment and a new subregulation 5(5) to provide that such a person must state in writing that he or she has read the Code and agrees to abide by it, before being appointed or reappointed.

 

Item [7] substitutes a new regulation 7 detailing the minimum and maximum ages for cadets. The amendments align the upper age limit of cadets in all three of the cadet forces and raise the minimum age of a cadet in the Air Force cadets to 13 years.

 

Item [8] substitutes a new subregulation 8(3) to provide that where a service chief accepts a cadet under subregulation 8(2), the service chief shall enrol that person as a cadet in a unit.  This amendment reflects the fact that the cadet may be enrolled in a unit other than that of that particular service chief.  Subregulation 8(4) provides that a cadet may only be enrolled if the person states in writing that the person has read the Code and agrees to abide by it.

 

 

Item [9] amends regulation 9 by omitting the word "cadet" and inserting the words and number "Subject to regulation 17, a cadet".

 

Item [10] repeals regulation 12, which relates to compulsory retirement age for instructors or officers in a cadet force. This amendment would comply with the Age Discrimination Act 2004 which prohibits, subject to certain exceptions, discrimination on the grounds of age.

 

Item [11] substitutes a new subregulation 13(1) for the existing subregulation 13(1) to provide that a cadet may furnish to the service chief a request in writing to be discharged from the unit to which he or she belongs.

 

Item [12] substitutes a new regulation 14. Subsection 14(1) provides that if a service chief receives a request in writing for a discharge, he or she must discharge the cadet.  Subregulation 14(2) provides, subject to subregulation 14(3), the grounds on which a cadet may be discharged or the appointment of an instructor or officer may be terminated by the service chief. Subregulation 14(3) provides that a member must not be discharged or have his appointment terminated for various nominated breaches of the Code unless the reason for the discharge or termination of appointment has been given to the member and the member has been given an opportunity to contest it. Subregulation 14(4) provides that a member who wishes to contest his or her discharge or termination of appointment must give notice of the grounds to a service chief within 28 days, or such further period as allowed by the service chief, of being notified of the reasons for the intended discharge or termination.

 

Item [13] inserts, after existing regulation 15, a new Part 3 into the Principal Regulations which inserts the Code of Conduct.  Regulation 16 provides that a member of the cadet force must comply with the Code of Conduct. Regulation 17 provides that a service chief may impose one or more of a list of sanctions for a breach of the Code.

 

Item [14] substitutes a new heading to Part 4 of the Principal Regulations by modernising the numbering of the heading.

 

Item [15] inserts a new regulation 25 after the existing regulation 24. Subregulation 25(1) provides that any decision made that affects the rights of a person must be made in accordance with principles prescribed in subregulation 25(2). Subregulation 25(2) lists the principles mentioned in the previous subregulation.

 

Item [16] amends Schedule 1, table, column 1 by omitting the words "Cadet Officer" and substituting the word "Midshipman". This amendment would maintain consistency between the Australian Navy Cadets and the Royal Australian Navy.

 

Item [17] inserts a note after the table to Schedule 1 to the effect that the table must be read together with regulation 10.

 

Item [18] substitutes a new table to Schedule 2 listing the ranks of cadets, instructors and officers. It also inserts a note at the bottom of the table to indicate that the table must be read with regulation 10.

 

Item [19] amends Schedule 3, table, column 2 by omitting the word "Aircraftman" and inserting the words " Aircraftman or Aircraftwoman". The amendment modernises the language of the Principal Regulations by inserting non-sexist language.

 

Item [20] amends Schedule 3, table, column 2 by omitting "Leading Aircraftman" and substituting the words "Leading Aircraftman or Leading Aircraftwoman". Once again, the amendment to the Principal Regulations modernises the language of the Principal Regulations by using non-sexist language.

 

Item [21] amends Schedule 3 by inserting after the table a note to indicate that the table must be read with regulation 10.

 

Item [22] inserts, after existing Schedule 3, a new Schedule 4 titled " The Code of Conduct". The new Schedule 4 inserts 10 terms or conditions of behaviour that a member of the cadet force must comply with as a condition of being or remaining a member of the cadet force.

 

Item [23] makes the necessary amendment to the regulations to modernise the language of the Principal Regulations to insert non-sexist language.

 

Item [24] amends subregulations 8(1), 8(2), 10(4) to substitute the term "service chief '" for  "commanding officer". It also amends subregulations 13(2) and 13(3) by substituting "service chief" for the existing authorised officers mentioned in the subsections.