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NAVAL FORCES AMENDMENT REGULATIONS 2002 (NO. 1) 2002 NO. 52
EXPLANATORY STATEMENTSTATUTORY RULES 2002 No. 52
Issued by the Authority of the Minister for Veterans' Affairs
Naval Defence Act 1910
Naval Forces Amendment Regulations 2002 (No. 1)
Subsection 45(1) of the Naval Defence Act 1910 provides that the Governor-General may make Regulations prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for securing the good government of the Navy or for carrying out or giving effect to the Act.
The Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 ("the Enhancement Act") received Royal Assent on 22 March 2001 which made a number of changes to the structure and organisation of the Australian Defence Force. Subsection 2(2) of the Enhancement Act provides that if certain Items in Schedule 2 of the Act do not commence by Proclamation, they will commence on the first day after Royal Assent.
The purpose of the Statutory Rule is to rectify the error that resulted in the repeal of sections 25 to 30A of the Act earlier than was originally intended. The sections were to be repealed on a day to be fixed by Proclamation, but a numbering error resulted in the repeal of those sections on Royal Assent. The Statutory Rule will re-instate those provisions of the Naval Defence Act 1910 that were inadvertently repealed. This reinstatement will ensure that those persons who are potentially affected by the repeal are protected. Although the Statutory Rule will have a retrospective operation, it is clearly expressed it will not apply where a person is disadvantaged or liabilities are imposed on a person.
Those sections which provide for the enlistment of sailors (section 25), the extension of a period of enlistment (section 26), the discharge of sailors who are enlisted otherwise than until retiring age (section 27), the discharge of sailors who are enlisted until retiring age (section 28), the discharge of sailors rendering service under Part IV of the Defence Act 1903 (section 29), the entitlement of a sailor to be released on discharge (section 29A), the discharge of sailors for prescribed reasons (section 30) and the transfer of sailors to other arms of the Defence Force were to have commenced at the same time as those contained in subsection 2(2).
It was intended that the repeal of these sections take effect along with the others outlined in subsection 2(2). Unfortunately a numbering error took place and "Item 68" in subsection 2(2) of the Enhancement Act should have referred to "Item 69". Consequently, the repeal has taken effect (from Royal Assent).
Details of the Statutory Rule are set out in the Attachment.
The Statutory Rule will be taken to have commenced on 21 April 2001.
ATTACHMENT
DETAILS OF THE NAVAL FORCES AMENDMENT REGULATIONS 2002
Regulation 1 names the Regulations as the Naval Forces Amendment Regulations 2002 ("the regulations").
Regulation 2 provides that the regulations are taken to have commenced on 21 April 2001.
Regulation 3 makes it clear that in the period between 21 April 2001 and immediately before the regulations are notified in the Gazette, the operation of the regulations will not apply -
• if the rights of a person as at the date of notification of the amendments in the Gazette would be affected so as to disadvantage that person; or
• if liabilities would be imposed on a person in respect of anything done or omitted to be done before the date of the notification.
This does not apply to the Commonwealth or an authority of the Commonwealth. It is therefore intended that the regulations have a retrospective operation. However any enlistments, transfers, discharges and transfers effected since April 2001 can only be validated to the extent that detriment is not caused to the individuals involved.
Regulation 4 provides that Schedule 1 of the regulations amends the Naval Forces Regulations 1935.
Schedule 1 inserts new regulations into the Naval Forces Regulations 1935. These provisions relate to the enlistment, discharge and transfer of sailors and are substantially similar to sections 25 - 30A of the Naval Defence Act 1910 that were repealed.
Regulation 29 provides that a person may volunteer to serve as a sailor in a part of the Navy for a fixed period or until attaining retiring age. If the person is accepted for service in that part of the Navy, the person must take and subscribe the oath or affirmation mentioned in regulation 41.
Taking and subscribing the oath or affirmation constitutes the enlistment of the person in that part of the Navy for the specified period or until retiring age as the case may be. Furthermore, it binds the person to serve in the Navy in accordance with the tenor of the oath or affirmation.
Regulation 34B allows a sailor to volunteer for an extension of the period of his or her enlistment. However, this is only available if the sailor is enlisted otherwise than until attaining retiring age. The period of extension may be for a fixed period or until retiring age. If the offer is accepted, then the period is extended accordingly.
Regulation 34C allows a sailor who is enlisted in the Navy until retiring age to ,volunteer to convert that enlistment to an enlistment for a fixed period. If the offer is accepted, then the enlistment is converted accordingly.
Regulation 37 allows a sailor in the Permanent Navy who is enlisted for a fixed period to a discharge at the end of that period. If the period for which the sailor is enlisted ends during a time of war or defence emergency, the period for which the sailor is enlisted is extended until the end of that time. If the period for which the sailor enlisted ends during a period for which the Naval Reserve is called out for continuous full time service, the period for which the sailor is enlisted is extended until the end of the period for which the Naval Reserve is called out.
Regulation 37A allows a sailor who is enlisted for a fixed period in the Naval Reserve to a discharge at the end of the period or on claiming a discharge. Where a sailor has enlisted for a fixed period, if that period ends during a time of war or defence emergency, the period for which the sailor is enlisted is extended until the end of that time. If the period for which the sailor is enlisted ends during a period when the sailor has been called out for continuous full time service, the period for which the sailor enlisted is extended until the end of the period for which the sailor was called out.
The sailor will be able to claim a discharge if he or she gives 3 months written notice of intention to his or her commanding officer. However, the sailor cannot claim a discharge in the following circumstances
• During a time of war or defence emergency;
• A period in which the sailor has been called out for continuous full time service; or
• A period for which the sailor has volunteered to render continuous full time service.
Regulation 37B outlines the circumstances where a sailor in the Permanent Navy who is enlisted until retiring age may claim a discharge. Essentially a sailor who is enlisted until retiring age is entitled to claim a discharge before reaching retiring age. However the sailor must claim the discharge within the appropriate period of notice in writing to his or her commanding officer.
The required period of notice is 12 months or a shorter period that the Chief of Navy determines having regard to the following
• The Navy's capacity to provide a replacement for the sailor;
• Other personnel considerations;
• Training considerations;
• Any other operational requirements that are applicable.
The sailor will not be able to claim a discharge during a time of war or defence emergency or during a period for which the Naval Reserve is called out for continuous full time service. Furthermore, a sailor may not be able to claim a discharge unless he or she has completed 6 years of service or a shorter period of service that the Chief of Navy determines. In making such a determination the Chief of Navy must have regard to the effect of the determination on the ability of the Navy to carry out its current and possible future operations, the size and composition of the Navy and the training of the Navy.
If the Chief of Navy considers that a discharge of a sailor would seriously prejudice the ability of the Navy to carry out its Naval operations, he or she may certify in writing to that effect. In such a case, the sailor will not be able to claim a discharge.
There are other circumstances where a sailor will not be able to claim a discharge. If a sailor is engaged in or has completed a course of training outside Australia or a period of employment on special duties or a period of service outside Australia and the Chief of Navy has determined that the sailor is required to complete a specified period of service, the sailor may not claim a discharge if he or she has not completed the period of service.
Furthermore, if a sailor was appointed outside Australia and the sailor's transport or family's transport was at Commonwealth expense and the Chief of Navy has determined that the sailor is required to complete a specified period of service, the sailor will not be able to claim a discharge if he or she has not completed that period of service.
If the Chief of Navy has directed that a sailor must comply with a specified condition, the sailor will not be able to claim a discharge until that condition has been complied with.
A sailor will only be able to withdraw or vary a claim for discharge with the approval of the Chief of Navy. The Chief of Navy must have regard to the effect of his decision on the ability of the Navy to carry out its current or possible future operations and the management of Navy personnel.
Regulation 37C provides for the discharge of sailors of the Naval Reserve who are enlisted until retiring age. He or she will be able to claim a discharge before reaching retiring age if 3 months written notice has been given to his or her commanding officer.
The sailor will not be able to claim a discharge during a time of war or defence emergency or during a period for which the sailor has been called out for continuous full time service or has volunteered for continuous full time service.
A claim for a discharge may only be withdrawn or varied with the approval of the Chief of Navy. In considering such an application, the Chief of Navy must have regard to the effect the decision might have on the ability of the Navy to carry out its current and possible future operations and the management of Navy personnel.
Regulation 37D provides for the discharge of sailors who are rendering service under Part IV of the Defence Act 1903 (Part IV relates to the liability of members of the Defence Force to serve in time of war). Pursuant to regulation 37D, a sailor rendering service under this Part will be entitled to a discharge at the end of the time of war.
Regulation 37E binds a sailor to serve until he or she becomes entitled to a discharge. When the sailor becomes entitled to a discharge, he or she must be released from service in the Navy as soon as is reasonably practicable.
Subregulations 38(1) and (2) are omitted and substituted so that the language is in accordance with current drafting style and practice. These subregulations outline the reasons for the discharge of a sailor.
Subregulation 38(3) are omitted and substituted. It will provide that subregulations (1) and (2) apply whether or not the sailor has completed the period for which he or she was enlisted or has attained the prescribed compulsory retiring age. New subregulation 3 8(4) will provide that if a sailor has been discharged for reasons other than those outlined in subregulation (1) or (2) then the Chief of Navy may take such steps that are necessary to ensure that the sailor is treated as being discharged for those other reasons. Where appropriate, any documents or orders made in relation to the discharge may be amended to reflect the fact that the sailor was discharged for a reason other than those mentioned in subregulations (1) or (2).
The definition of "Medically unfit" will remain the same to mean physically or mentally incapacitated for the performance of the sailor's duties.
Regulations 39 and 40 are also omitted and substituted.
Regulation 39 provides that paragraph 38(1)(c) (where a sailor is retrenched) does not apply in relation to a sailor of the Permanent Navy who enlisted in the Navy until retiring age unless -
• retrenchment in the Navy is the subject of a document issued by or with the authority of the Chief of Navy;
• the sailor is given 12 months written notice of an intention to discharge him or her because of the retrenchment;
• the retrenchment is effected substantially in accordance with the document.
Regulation 40 provides for the transfer of sailors to other arms of the Defence Force. This regulation empowers the Chief of Navy to transfer, by written instrument, the enlistment of a sailor to the Australian Army as a soldier or the Australian Air Force as an airman. This may only happen if the person consents to the transfer and the Chief of Army or Chief of Air Force approves the transfer.
The instrument of transfer will be required to include the following matters -
• the day on which the transfer takes effect;
• the period of service for which the person is enlisted in the Australian Army as a soldier or the Australian Air Force as an airman;
• the part of that arm of the Defence Force in which the person is enlisted;
• the rank that the person is to hold in that arm of the Defence Force and the person's seniority in that rank.
The regulation goes on to specify that where a person is required to complete a specified period of service, that period continues to apply to the person after the transfer takes place and a person cannot claim a discharge from the Army or Air Force before the end of that period.
This regulation also makes it clear that service rendered by a sailor in the Navy before a proposed transfer to the Australian Army and Australian Air Force will be taken to be service in the Australian Army or Australian Air Force (as the case may be).
The remaining regulations contain consequential amendments. They will modernise language in accordance with current drafting practices and replace references to the Naval Defence Act 1910 with references to the Regulations. These amendments are in respect of subregulations 41(1) and (2), paragraphs 41(2)(a) and (b) and Schedule 1.