Commonwealth Numbered Regulations - Explanatory Statements

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DEFENCE (PERSONNEL) REGULATIONS 2002 2002 NO. 51

STATUTORY RULES 2002 No. 51

Issued by the Authority of the Minister for Veterans' Affairs

Defence Act 1903

Defence (Personnel) Regulations 2002

Subsection 124(1) of the Defence Act 1903 provides that the Governor-General may make Regulations for the purposes of the Act.

Paragraphs 124(1)(a)-(ac) specifically provide that the Governor-General may make Regulations in relation to the enlistment, appointment, promotion, reduction in rank, retirement and discharge of members of the Defence Force, the transfer of members of the Defence Force, the training of members and the conditions of service of members.

Subsection 124(1AA) provides for regulations to be made under subsection (1) in relation to the appointment or enlistment or re-appointment or re-enlistment of a member for a specified period after which the member may transfer to another part or another arm of the Defence Force under similar arrangements.

The Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 ("the Enhancement Act") was enacted to achieve a number of purposes in relation to the structure and organisation of the Australian Defence Force. It includes the repeal of various personnel provisions in the Naval Defence Act 1910, the Defence Act 1903 and to a lesser extent the Air Force Act 1927 covering appointment and enlistment of officers and members, promotion, inter- and intra-Service transfer, retirement, termination and resignation, posting and discharge. These provisions are dealt with separately by the three services in their separate legislation.

The purpose of the Statutory Rule is to provide for interim arrangements for the Australian Navy, Army and Air Force so that notwithstanding the repeal of the personnel provisions under the Enhancement Act they are protected until new comprehensive Regulations are in force. Those new Regulations are not expected to be completed by 21 March 2002, the commencement date of the repealed provisions.

Details of the Statutory Rule are contained in the Attachment.

The Statutory Rule commences on the commencement of item 14 of Schedule 2 to the Enhancement Act.

ATTACHMENT

DETAILS OF THE DEFENCE (PERSONNEL) REGULATIONS 2002

Chapter 1 - Preliminary

Regulation 1 names the Regulations as the Defence (Personnel) Regulations 2002.

Regulation 2 provides that the Regulations commence on the commencement of item 14 of Schedule 2 of the Enhancement Act.

Regulation 3 defines such terms as -

•       "Air Force Act" to mean the Air Force Act 1923;

•       "Commencement day" to mean the day on which item 14 of Schedule 2 to the Enhancement Act commences;

•       Defence Act to mean the Defence Act 1903;

•       Naval Defence Act to mean the Naval Defence Act 1910;

•       "Service" to mean any of the arms of the Defence Force.

Chapter 2 - Interim personnel arrangements for Australian Navy

Regulation 4 makes it clear that Chapter 2 of the Regulations is not intended to amend, revoke or otherwise affect any regulation to which items 88, 89, 90, 91, 92, 93 or 94 of Schedule 2 to the Enhancement Act applies (these items contain the saving and transitional provisions in relation to various provisions of the Defence Act and the Naval Defence Act). The Regulations are intended to apply to appointments and enlistments and personnel matters generally after the commencement day. Therefore, the saving and transitional arrangements contained in Items 88-94 will continue to operate and the provisions outlined in those Items continue to apply.

Regulation 5 defines "old legislation" as the Naval Defence Act immediately in force before the commencement day and the Naval Forces Regulations 1935 immediately in force before the commencement day as modified in accordance with subregulation (2).

Subregulation 5(2) provides that the old legislation is taken to be modified to the extent necessary to refer to and apply to parts and components of the Australian Navy as they exist at any time before the commencement day and administrative arrangements or functions in relation to the Australian Navy as they exist at any time after the commencement day. This will enable the proposed arrangements contained in the new Regulations to take effect after the Enhancement Act commences.

Regulation 6 applies to any matter relating to the appointment of an officer or the promotion, resignation, retirement, termination of appointment, transfer or posting of an officer who is appointed on or after the commencement day. It also applies to the enlistment of a member or the discharge, transfer, promotion, resignation, retirement, termination of enlistment, posting or reduction in rank of a member who is enlisted on or after the commencement day or the appointment and service of chaplains.

Subregulation 6(2) makes it clear that the provisions of the old legislation are adopted for the purposes of dealing with the matter. Therefore, the "pre-repeal" regime continues to apply.

Chapter 3 - Interim personnel arrangements for Australian Army

Regulations 7, 8 and 9 mirror those in relation to the Australian Navy (Chapter 2 discussed above).

Regulation 7 makes it clear that Chapter 2 of the Regulations is not intended to amend, revoke or otherwise affect any regulation to which item 88, 89, 90, 91, 92, 93 or 94 of Schedule 2 to the Enhancement Act applies (These items contain the saving and transitional provisions in relation to various provisions of the Defence Act and the Naval Defence Act). The Regulations are intended to apply to appointments and enlistments after the commencement of the proposed Regulations. Therefore, the saving and transitional provisions contained in Items 88-94 will continue to operate and the provisions outlined in those Items continue to apply.

Regulation 8 defines "old legislation" as the Defence Act immediately in force before the commencement day and the Australian Military Regulations 1927 immediately in force before the commencement day as modified in accordance with subregulation (2).

Subregulation 8(2) provides that the old legislation is taken to be modified only to the extent necessary to refer to and apply to parts and components of the Australian Army as they exist at any time before the commencement day and administrative arrangements or functions in relation to the Australian Army as they exist at any time after the commencement day.

Regulation 9 applies to any matter relating to the appointment of an officer or the promotion, resignation, retirement termination of appointment, transfer or posting of an officer who is appointed on or after the commencement day. It also applies to the enlistment of a member or the discharge, transfer, promotion, resignation, retirement, termination of enlistment, posting or reduction in rank of a member who is enlisted on or after the commencement day or the appointment and service of chaplains.

Subregulation 9(2) therefore makes it clear that the provisions of the old legislation are adopted for the purposes of dealing with the matter. Therefore, the "pre-repeal" regime continues to apply.

Chapter 4 - Interim personnel arrangements for Australian Air Force

Regulations 10, 11 and 12 mirror those in relation to the Australian Navy and Australian Army (Chapters 2 and 3 respectively, discussed above).

Regulation 10 makes it clear that Chapter 2 of the Regulations is not intended to amend, revoke or otherwise affect any regulation to which item 88, 89, 90, 91, 92, 93 or 94 of Schedule 2 to the Enhancement Act applies (These items contain the saving and transitional provisions in relation to various provisions of the Defence Act and the Naval Defence Act). The Regulations are intended to apply to appointments and enlistments after the commencement of the Regulations. Therefore, the saving and transitional provisions contained in Items 88-94 will continue to operate and the provisions outlined in those Items continue to apply.

Regulation 11 defines "old legislation" as the Air Force Act immediately in force before the commencement day and the Air Force Regulations 1927 immediately in force before the commencement day as modified in accordance with subregulation (2).

Subregulation 11(2) provides that the old legislation is taken to be modified to the extent necessary to refer to and apply to parts and components of the Australian Air Force as they exist at any time before the commencement day and administrative arrangements or functions in relation to the Australian Air Force as they exist at any time after the commencement day.

Regulation 12 applies to any matter relating to the appointment of an officer or the promotion, resignation, retirement termination of appointment, transfer or posting of an officer who is appointed on or after the commencement day. It also applies to the enlistment of a member or the discharge, transfer, promotion, resignation, retirement, termination of enlistment, posting or reduction in rank of a member who is enlisted on or after the commencement day or the appointment and service of chaplains.

Subregulation 12(2) therefore makes it clear that the provisions of the old legislation are adopted for the purposes of dealing with the matter. Therefore, the "pre-repeal" regime continues to apply.