Defence Force Discipline Appeals Regulation 2016 [F2016L01452]-Concluded matters [2016] AUSStaCSDLM 377 (30 November 2016)

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Instrument	Defence Regulation 2016 [F2016L01568]
Purpose	Replaces three instruments made under the Defence Act 1903 and enhances the Chief of the Defence Force's position as the sole commander of the Defence Force
Last day to disallow	1 December 2016
Authorising legislation	Defence Act 1903
Department	Defence
Scrutiny principle	Standing Order 23(3)(b) and (a)
Previously reported in	Delegated legislation monitor 8 of 2016

The committee commented in relation to two matters as follows:

Insufficient information regarding strict liability offences

Section 76 of the regulation makes it an offence to use a prohibited word or letter (prescribed in sections 73 and 74) in connection with a trade, business, calling or profession, or in connection with an organisation or body of persons, unless the use is in accordance with consent obtained under section 77. The maximum punishment for this offence is 10 penalty units. Strict liability applies to the element of the offence that the use is not in accordance with a consent obtained under section 77 (subsection 76(2)).

Given the limiting nature and potential consequences for individuals of strict and vicarious liability offence provisions, the committee generally requires a detailed justification for the inclusion of any such offences in delegated legislation. The committee notes that in this case the ES provides no explanation of or justification for the framing of the offence.

The committee requests the advice of the minister in relation to this matter.

The committee also draws the minister's attention to the discussion of strict and absolute liability offences in the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers,^[1] as providing useful guidance for justifying the use of strict liability offences in accordance with the committee's scrutiny principles.

Sub-delegation

Part 16 of the regulation provides for certain powers of the Minister, Secretary and Chief of the Defence Force in the regulation to be delegated.

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, a limit should be set on either the sorts of powers that might be delegated or on the categories of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.

In this respect, the committee notes that the ES for the regulation provides detailed information about the nature of the powers to be delegated and the categories of people to whom powers under the regulation may be delegated. However, it provides no justification for the need to sub-delegate certain powers under the regulation to an Australian Public Service level 4 or 6 employee.^[2]

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Defence advised:

Strict liability offence
The strict liability offence in section 76 of the Regulation makes it an offence to use prohibited words or letters in connection with business if the use is not in accordance with a consent obtained under section 77.
Strict liability applies to the requirement that the use is not in accordance with a consent, which means that it is not necessary for the prosecution to prove that the person knew that the use was not in accordance with a consent. This offence is substantively identical to the offence previously contained in sub regulation 2(2) of the Defence (Prohibited Words and Letters) Regulations 1957, including the strict liability element. The only change has been to increase the penalty from five to ten penalty units.
In reviewing the offence provision, as re-made in section 76, it was considered that the difficulty of proving that a person has positive knowledge of the non-existence of the relevant consent would undermine the effectiveness of this offence provision as a deterrent. Accordingly,
the strict liability element was retained. The relatively low penalty is well within the penalties discussed in relation to strict liability offences in the Attorney‑General Department's: A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers.

Delegation of powers
For the purposes of performing clerical duties (as opposed to the exercise of military command responsibilities), the APS classifications in each provision in Part 16 are treated in Defence as comparable to the military ranks listed. Defence is an increasingly integrated work environment, where ADF members and APS employees work together. Some decision-making previously conducted by ADF members is now conducted by APS employees (including where a particular position is temporarily filled by an APS employee) and this possibility may continue in the future. Accordingly, all delegation powers in the Regulation have been written to enable delegations to be made both ADF members and APS employees at comparable levels.
Subsection 82(2) provides that the Minister's powers under Part 14 can be delegated to ADF officers down to Major or equivalent rank, and to APS employees down to APS 6 classification. These powers are to accept or refuse, or accept with conditions, applications for consent to use prohibited words and letters. A similar power exists under section 83 of the Defence Act 1903 in relation to the use of emblems and flags, which is not limited by rank or classification, and it was considered important that delegations under the Regulation correspond with authorisations under section 83 of
the Act. Brand managers for the ADF, Navy, Army and Air Force,
and their staff (including both ADF members and APS employees),
are responsible for administering applications for consent. Elevating the level of delegates in relation to these powers could unnecessarily slow down the decision-making process.
Subsections 83(2) and 84(3) provide that the Secretary's and CDF's powers under Part 11 can be delegated to ADF officers down to Major or equivalent rank, and to APS employees down to APS 6 classification. These powers are to: determine when entry to a defence area is prohibited; direct the removal of property from a defence area while entry is prohibited; authorise the installation of equipment in a defence area; and authorise
a person to grant permission for a person to enter a defence area while it is prohibited. These are decisions that, by their nature, are undertaken at a local level in relation to particular defence areas, in order to facilitate defence operations or practices as they arise. Commanders and other staff responsible for the day to day decision-making in defence areas will often be at the levels outlined in subsection 83(2) and 84(3), and the ability to delegate these powers to these levels is essential for the effective operation of Part 11 of the Regulation.
Subsection 84(1) provides that the CDF's powers under Parts 3, 4 and 5 can be delegated to ADF members down to Warrant Officer 2 or equivalent rank, and to APS employees down to APS 4 classification. These powers relate to personnel decision-making for ADF members, and there are a massive volume of these decisions made every day. In order to effectively administer the ADF, it is necessary that they be delegable to relatively low levels. For example, the CDF's power in paragraph 12(1)(b) to enlist a person in the Army has been delegated to Warrant Officers posted to Defence Force Recruiting...
I regret that these matters were not more fully explained in the explanatory statements for each Regulation. In future, I will endeavour to ensure that more complete explanations in relation to expansive delegations and strict liability offences are included for instruments in my portfolio.

Committee response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee also thanks the minister for her advice that endeavours will be made to include sufficient information in relation to strict liability offences and expansive delegations in ESs for future instruments in the Defence portfolio.

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^[1] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/ Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf (accessed 8 November 2016).

^[2] See Defence Regulation 2016 [F2016L01568], paragraphs 82(2)(d), 83(2)(d), 84(1)(e) and 84(3)(d).