Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

MILITARY JUSTICE (INTERIM MEASURES) (REMUNERATION AND ENTITLEMENTS) AMENDMENT (CHIEF JUDGE ADVOCATE) REGULATIONS 2017 (F2017L01101)

EXPLANATORY STATEMENT

Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment

(Chief Judge Advocate) Regulations 2017

Name

This instrument is the Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment (Chief Judge Advocate) Regulations 2017 (the Instrument).

Authority

The Instrument is made under item 2(1) in Schedule 4 of the Military Justice (Interim Measures) Act (No. 1) 2009 (the Act) and amends the Military Justice (Interim Measures) (Remuneration and Entitlements) Regulations 2011 (the Principal Regulations).

Approval

The Instrument is approved by the Minister for Defence Personnel, who is a responsible minister for the purposes of the Act.

Background

The Act made provision for the reinstatement of the system of discipline in the Defence Force which existed prior to the introduction of the Defence Legislation Amendment Act 2006, and which established the Australian Military Court.  The High Court of Australia declared the Australian Military Court to be unconstitutional in Lane v Morrison [2009] HCA 29 on 26 August 2009.

Schedule 3 of the Act relevantly made provision for the automatic transition of the person appointed to the position of the Chief Military Judge to the position of Chief Judge Advocate (CJA).  The appointment of the current CJA has, in effect, been extended by successive amendments to the Act, with the last amendment being by Schedule 3 of the Defence Legislation (Enhancement of Military Justice) Act 2015.

Among other things, item 2 in Schedule 3 of the Act provides that the current CJA is taken to have been appointed on the same terms and conditions as to remuneration and allowances as purportedly applied to the person immediately before Lane v Morrison.  Item 2 also provides that the person is entitled to such remuneration and allowances as are prescribed, which must not be less in value than was the case immediately before Lane v Morrison.

Immediately before Lane v Morrison, the remuneration of the current CJA was covered by Remuneration Tribunal Determination 2008/09, which related to the remuneration of judicial and related offices.  Based on advice provided by the Australian Government Solicitor, the Department of Defence had the Principal Regulations made for the purpose of periodically adjusting the remuneration of the transitional office holders. 

The Principal Regulations have been amended on several occasions up to 2014, with the last amendment being by the Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment Regulation 2014 (No. 1).  On each occasion, the practice has been to adjust the remuneration of these transitional office holders by reference to the notional adjustments made by the Remuneration Tribunal in the relevant determinations. 

Since 2014, the Remuneration Tribunal has made Determination 2015/18 and Determination 2017/09 (as amended by Determination 2017/14), which relate to the remuneration of judicial and related offices, and which made notional adjustments to the remuneration of the current CJA.  These adjustments would have increased the remuneration of the CJA, if the person had of been appointed under section 188A of the Defence Force Discipline Act 1982.

Purpose and operation

The purpose of the Instrument is to amend the Principal Regulations to adjust the remuneration of the current CJA, by reference to the notional adjustments made by the Remuneration Tribunal by determination since 2014; and to make minor corrections to the rates of remuneration prescribed for that person since 1 October 2009, totally less than $100, which were identified during the drafting of the Instrument.

In substance, the Instrument will repeal the table in regulation 4 of the Principal Regulations and substitute it with a new table, which will set out the corrected and adjusted total remuneration and base salary rates during the specified periods from 1 October 2009 until 1 July 2017 for the current CJA.  The new table will take account of the minor correction in clause 3.2 of Determination 2017/14.

References

No documents are incorporated by reference into the Instrument.  A copy of the Act and Principal Regulations is available on the Federal Register of Legislation.  A copy of the determinations referred to in this explanatory statement is available on the website for the Remuneration Tribunal.

Consultation

Appropriate and reasonably practicable consultation was undertaken in the making of the Instrument.  The Australian Government Solicitor, the secretariat of the Remuneration Tribunal, the Office of Best Practice Regulation, relevant parts of the Department of Defence, and the current CJA were consulted. The Instrument was drafted by the Office of Parliamentary Counsel.

Human rights compatibility statement

The Instrument is a disallowable legislative instrument which is assessed to be compatible with human rights recognised or declared by the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  The Instrument has retrospective application, insofar as it adjusts the remuneration of the current CJA and makes minor corrections to the person's rates of remuneration as prescribed since 1 October 2009. 

However, the adjustments and corrections have a beneficial retrospective application only.  They do not affect the CJA's rights so as to disadvantage the person, or impose liabilities on the person in respect of anything done or omitted to be done before the date of commencement of the Instrument.  The adjustments and corrections increase the remuneration of the CJA, ensuring that the person is treated equitably by being remunerated as though the person had been appointed under the Defence Force Discipline Act.

Other information

The Act specifies no conditions that need to be satisfied before the rule-making power in item 2(1) in Schedule 4 of the Act may be exercised.

The Office of Best Practice Regulation (OBPR) advised that no regulatory impact statement was required in relation to the Instrument.  The OBPR reference number is 22306.

The Instrument is assessed to be compatible with the Senate Standing Committee on Regulations and Ordinances' 'scrutiny principles'.  In particular, to the extent that the Instrument has retrospective application, it does not offend 'Principle B' of the scrutiny principles, that retrospectivity should not disadvantage anyone except the Commonwealth.  The Instrument is assessed as having beneficial retrospective application to the current CJA.

The detailed provision-by-provision description of the Instrument is set out in Attachment A to this explanatory statement.

ATTACHMENT A

Detailed description of the Instrument

Section 1 - Name

This section provides that the name of the instrument is the Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment (Chief Judge Advocate)

Regulations 2017.

Section 2 - Commencement

This section provides that sections 1 to 4, and anything else in the instrument not covered by the table set out in the section, commences the day after the instrument is registered.  This section also provides that Schedule 1 commences on 1 October 2009.

Section 3 - Authority

This section provides that the instrument is made under the Military Justice (Interim Measures) Act (No. 1) 2009.  Specifically, the instrument is made under the rule-making power contained in item 2(1) in Schedule 4 of that Act.

Section 4 - Schedules

This section provides that each instrument specified in a schedule to the instrument is amended or repealed as set out in the applicable items in the schedule concerned, and any other item in a schedule to the instrument has effect according to its terms.

Schedule 1 - Amendments

This section repeals the table in regulation 4(1) of the Military Justice (Interim Measures) (Remuneration and Entitlements) Regulations 2011, and substitutes the table set out in the schedule for it.

The table in Schedule 1 sets out the corrected and adjusted total remuneration and base salary rates during the specified periods from 1 October 2009 to 1 July 2017 onward for the current CJA.  The Department of Defence will recalculate the current CJA's remuneration and other entitlements in accordance with the information set out in the table.