Defence Legislation Amendment (2017 Measures No 1) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 201 (14 June 2017)

• Defence Legislation Amendment (2017 Measures No. 1) Bill 2017
• Significant matters in delegated legislation 26

---

Defence Legislation Amendment (2017 Measures No. 1) Bill 2017

Purpose	This bill seeks to amend several Acts relating to defence to: • allow a positive test for prohibited substances to be disregarded under certain circumstances; • simplify termination provisions to align with the new Defence Regulation 2016; • ensure greater protections for all Reservists in relation to their employment and education; • include the transfer of hydrographic, meteorological and oceanographic functions from the Royal Australian Navy to the Australian Geospatial-Intelligence Organisation; • align a small number of provisions in the Australian Defence Force Cover Act 2015 with other military superannuation schemes and provide clarity in definitions
Portfolio	Defence
Introduced	House of Representatives on 29 March 2017
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(iv)

2.76 The committee dealt with this bill in Scrutiny Digest No. 5 of 2017. The Minister responded to the committee's comments in a letter dated 26 May 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 1.

Significant matters in delegated legislation ^[26]

Initial scrutiny – extract

2.77 Proposed section 72B specifies that the regulations may provide processes for making and investigating complaints about alleged contraventions of the Defence Reserve Service (Protection) Act 2001 (the Act) and mediating disputes between persons whose interests are affected by the Act. The Office of Reserve Service Protection, which is currently responsible for receiving, mediating and investigating complaints is already established under the Defence Reserve Service (Protection) Regulations 2001 (the DRS (Protection) Regulations). The current DRS (Protection) Regulations already provide for obtaining documents and information from employers and others, among other things.

2.78 It appears that the intent of proposed section 72B is to ensure that there is clear legislative authority to make the DRS (Protection) Regulations. This is demonstrated by the application provisions in subitem 72(4) which are designed to ensure that 'complaints made or actions taken under the regulations prior to commencement...are taken to be complaints made or actions taken under the regulations made for the purposes of new subparagraph 72B(1)(a)'.^[27]

2.79 Importantly, item 71 also seeks to amend subsection 81(2) of the Act to allow the regulations to prescribe penalties of up to 50 penalty units and civil penalties of up to 60 penalty units for offences against and contraventions of the regulations. Currently, the maximum penalty is 10 penalty units. The explanatory memorandum notes that current offences in the DRS (Protection) Regulations include failure to provide information to the Director of the Office of Reserve Service Protection and that a higher penalty is required because a failure to provide information can significantly hamper the enforcement of the Act.^[28]

2.80 The committee's view is that significant matters, such as complaints and mediation processes (compliance with which can be enforced through offence and civil penalty provisions), should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

2.81 In this case, no explanation is given as to why it is appropriate to provide for the complaints and mediation scheme in delegated legislation other than there are currently regulations in place covering these matters (which may not be supported by an effective authorising provision). The committee notes that rather than amending the Act to provide clear legislative authority to make the DRS (Protection) Regulations, it would instead be possible to remake the relevant provisions of the DRS (Protection) Regulations in the primary legislation. This would ensure that the complaints and mediation scheme is subject to the full range of parliamentary scrutiny inherent in bringing proposed changes to the scheme in the form of an amending bill.

2.82 In light of the above comments, the committee requests the Minister's advice as to why it is appropriate for the complaints and mediation scheme relating to the defence reserve service to be specified in delegated legislation rather than in primary legislation.

Minister's response

2.83 The Minister advised:

I understand the Committee is seeking advice as to why it is appropriate for the complaints and mediation scheme relating to the defence reserve service to be specified in delegated legislation rather than in primary legislation. The complaints and mediation scheme relating to defence reserve service is currently specified in the Defence Reserve Service (Protection) Regulations 2001 (the Regulations), which are made under the Defence Reserve Service (Protection) Act 2001 (the Act). This has been the case since 2001.
The intent of the proposed measures in the Bill, which would amend the Act if passed, is to implement outstanding recommendations from a 2007 review of the Act, as well as some minor consequential matters.
The review gave no consideration to moving the complaints and mediation scheme into the principal legislation, so this was not considered when the Bill was drafted. Further, there has been no consultation with affected stakeholders, including potentially employer groups, for this type of change. The complaints and mediation scheme has, for the most part, been operating effectively since its inception in 2001.
The review made quite limited recommendations about the complaint and mediation scheme, which is why the proposed amendments relating to that scheme are limited to:

• introducing a new regulation-making power to remove any doubt about the validity of regulations about the scheme; and

• to enhance the penalties that can be imposed for offences against the regulations.

Defence will review the complaints and mediation scheme being moved from the regulations into the principal legislation following implementation of the Bill and prior to the Regulations sunset date of 1 October 2019.

Committee comment

2.84 The committee thanks the Minister for this response. The committee notes the Minister's advice that the complaints and mediation scheme relating to defence reserve service has been specified in the Defence Reserve Service (Protection) Regulations 2001 (the Regulations) since 2001, and that the intent of the bill is to implement outstanding recommendations from a 2007 review of the Defence Reserve Service (Protection) Act 2001. The Minister advised that the review gave no consideration to moving the complaints and mediation scheme into the principal legislation, so this was not considered when the bill was drafted. However, the Minister indicated that Defence will review the complaints and mediation scheme being moved from the regulations into the principal legislation following implementation of the bill and prior to the Regulations sunsetting on 1 October 2019.

2.85 As noted above, the committee's view is that significant matters, such as complaints and mediation processes (compliance with which can be enforced through offence and civil penalty provisions), should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. Providing for the complaints and mediation scheme in primary legislation would ensure that the scheme is subject to the full range of parliamentary scrutiny inherent in bringing proposed changes to the scheme in the form of an amending bill.

2.86 The committee welcomes the Minister's undertaking to review moving the complaints and mediation scheme from the regulations into the principal legislation prior to the regulations sunsetting on 1 October 2019. However, the committee notes that there is no legislative requirement for a pre-sunset review to consider whether to move the provisions of the sunsetting delegated legislation into primary legislation.

2.87 The committee therefore suggests that it may be appropriate for the bill to be amended to include a legislative requirement to conduct a review into the desirability of, and potential options for, moving the complaints and mediation scheme from the regulations into the principal legislation prior to the sunsetting of the Regulations on 1 October 2019 (with any document or report arising from the review to be tabled in both Houses of Parliament).^[29] The committee requests the Minister's response in relation to this matter.

---

[26] Schedule 2, items 65, proposed section 72B of the Defence Reserve Service (Protection) Act 2001.

[27] Explanatory memorandum, p. 31.

[28] Explanatory memorandum, p. 31.

[29] In this regard, the committee notes that the Guide to Managing Sunsetting of Legislative Instruments states that, for any major pre-sunset review, it is good practice to table the review document in Parliament (see Attorney-General's Department, Guide to Managing Sunsetting of Legislative Instruments, December 2016, p. 13, https://www.ag.gov.au/LegalSystem/AdministrativeLaw/Documents/guide-to-managing-sunsetting-of-legislative-instruments-december-2016.pdf).