Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1999
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
DEFENCE LEGISLATION
AMENDMENT
BILL (No.1)
1999
EXPLANATORY
MEMORANDUM
(Circulated by the authority of
the Minister for Defence,
the Hon. John Moore
MP)
ISBN: 0642 391416
2.
Defence
Legislation Amendment Bill (No.1) 1999
This Bill
will:
a. introduce a urinalysis drug testing scheme
that will apply to members of the Australian Defence
Force;
b. enable the Chief of the Defence Force,
the Vice Chief of the Defence Force, the Chief of Army and the Chief of Navy to
be transferred to the Reserves on the expiration of fixed term
appointments;
c. enable officers to be transferred
to the Reserves on the expiration of a limited-tenure promotion or relevant
management initiated early retirement period;
d. enable the Chief of Army and the Chief of Navy
to delegate their powers to retire officers and terminate officer appointments
to an officer not below the rank
Brigadier/Commodore;
e. amend the Defence Force
Discipline Act 1982, to extend, from 3 to 5 years, the time limitation that
applies to most charges under the Act, and to remove an obsolete
provision;
f. repeal the Supply and Development Act
1939 which formerly provided the legislative framework for defence production
activity (including employment of staff);
and
g. make minor technical
amendments.
The urinalysis drug testing scheme will cost
approximately $300,000 a year with funding being met within the current Defence
program. The other amendments will not have any significant financial
impact.
3.
Defence
Legislation Amendment Bill (No.1) 1999
Clause 1 - Short
title
1. Formal.
Clause
2 - Commencement
2. This clause provides for
the commencement of the Act. The amendments dealing with the delegation of the
Chief of Navy’s and the Chief of Army’s powers to retire officers
and terminate officer appointments, and the amendments dealing with the Defence
Force Discipline Act 1982 will commence on assent. The amendments dealing with
the introduction of the urinalysis drug testing scheme and transfer of certain
officers to the Reserves on the expiration of their service will commence on a
day to be fixed by proclamation, or six months after the Bill receives Royal
Assent if the amendments have not been proclaimed by that date. (This will
enable consequential regulation amendments to be made in association with the
commencement of the Bill.) The provisions dealing with the repeal of the Supply
and Development Act 1939 will commence on 1 January 2001. (This will ensure that
a thorough search can be made for personnel that might still be covered by the
Supply and Development Act.) In addition, one technical drafting correction to a
misdescribed provision will be taken to have commenced on the same day as the
provision it is amending, while a further drafting correction will commence on
assent.
Clause 3 -
Schedule(s)
3. This clause provides for Acts to
be amended as specified in the
Schedules.
Schedule 1 - Urinalysis testing
of members of the Defence Force who undertake combat or combat-related
duties
4. Item 1 of this Schedule inserts a
new Part VIIIA into the Defence Act 1903 which provides for the introduction of
a urinalysis drug testing scheme.
5. New sections
91 and 92 set out the Application and Object of this new
4.
Part of the Defence Act, and provide that all members
of the Australian Defence Force undertaking combat or combat-related duties will
be liable to be selected for testing to detect narcotic substances. (This would
include Reserve personnel of the Defence Force who are performing such
duties.)
6. New section 93 defines various terms
including the expressions 'combat duties' and 'combat-related duties'. The
definition of those terms covers any duties which require, or are likely to
require, a person to:
• commit, or
participate directly in the commission of, an act of violence in the event of
armed conflict;
• undertake training or
preparation for, or in connection with, combat duties;
or
• work in support of a person undertaking
combat duties.
7. New section 93 also defines the
term ‘narcotic substance’ by reference to the meaning of that term
in the Customs Act 1901. This will enable testing for illegal drugs such as
Cocaine, Opiates, Cannabinoids and
Amphetamines.
8. New sections 94 to 97 deal with
the provision and testing of urine samples from members. New section 94 provides
that a person authorised under the regulations may, in circumstances specified
in the regulations, require a member to provide a sample. New section 95
provides that a member who has been required to provide a sample is entitled to
pass the sample without being observed, and requires that the process of
collecting a sample is to be supervised by a qualified medical practitioner (if
service exigencies permit) or by a person whose duties include the provision of
medical assistance (in all other cases). New section 96 provides that a member
who is required to provide a sample must, before the sample is provided, be
given a written notice explaining such matters relating to dealing with the
sample as are prescribed by the regulations. New section 97 provides that the
regulations may prescribe the procedures for dealing with samples but expressly
requires that the regulations must include a provision for informing members of
the testing results. New section 97 also provides that the regulations may
provide that particular prescribed procedures need not be strictly complied with
and that substantial compliance is sufficient. However, new section 97 ensures
that any substantial compliance rule provided for by the regulations cannot
apply to procedures for ensuring that a sample is not interfered
with.
5.
9. New sections 98 to 105 provide for administrative
action to be taken against members found to test positive to narcotic
substances. New section 98 makes it clear that administrative action is not to
be taken against a member where a positive test result is wholly attributable to
something done by the member in accordance with directions or recommendations of
a qualified medical practitioner. (In addition, new section 108 excludes the
application of the Defence Force Discipline Act 1982 where a positive result has
been detected under the provisions. That is, it is not intended that members
should be charged under the Defence Force Discipline Act, given the range of
administrative action that can be taken against
them.)
10. New section 99 provides that, where a
member returns a positive test result, a qualified medical practitioner is to
provide an assessment of whether the member is fit or suitable for further
service in the Defence Force.
11. New section 100
provides that, if a member is assessed to be unfit or unsuitable for further
service, the member must be given a written notice of this assessment and an
opportunity to show cause why he or she should not be discharged (in the case of
an enlisted member) or have his or her appointment terminated (in the case of an
officer). The notice to the member must specify a period, of not less than 28
days, within which the member must give a written statement of reasons why he or
she should not be discharged or have his or her appointment terminated. New
section 101 provides for the discharge of the member or the termination of his
or her appointment where the member has not given a statement of reasons within
the period specified in the notice or where the member’s statement is
insufficient. New section 102 provides that a discharge or termination of
appointment must be in writing, and must specify the day on which the discharge
or termination is to take effect. This date must not be earlier than the day the
member is given this notification and not later than 3 months after that
date.
12. New section 103 provides that, where a
member returns a positive test result, the member’s rank may be reduced.
(This provision will apply where a member was assessed under section 99 as still
being fit or suitable for further service, or where the member was assessed
under that provision as being unfit or unsuitable for further service but where
the member was able to show that he or she should be retained.) Under this
provision, the member must be given a written notice informing of the proposed
reduction and a reasonable opportunity to show cause why he or she should not be
reduced in rank. In addition, the reduction must be in writing and specify the
day on which the reduction is to take effect.
6.
13. New section 104 provides that a member who returns
a positive test result may be given a warning that any subsequent positive test
result may lead to the member being discharged or having his or her appointment
terminated. (It is intended that any member who returns a positive test result,
but whose service is retained by the Defence Force, will be placed on a regular
follow-up testing regime, normally over a period of twelve months. This will be
set out in the Regulations.) In addition, new section 105 provides that nothing
in this new Part of the Defence Act precludes the taking of other forms of
administrative action. This could, for example, include posting
action.
14. New sections 106 and 107 provide that
it is an offence to intentionally refuse or fail to provide a sample, and to
intentionally interfere with, or otherwise deal with, a sample. A maximum
penalty of 6 months imprisonment applies to both of these
offences.
15. Items 2, 3 and 4 of this Schedule
enable the delegation of the reduction in rank and discharge/termination powers
in line with general Defence reduction and discharge/termination of appointment
provisions.
Schedule 2 - Transfer of certain
officers to the Reserve
16. This Schedule
amends the Defence Act 1903 and the Naval Defence Act 1910 to
enable:
• the Chief of the Defence Force, the
Vice Chief of the Defence Force, the Chief of Army and the Chief of Navy to be
transferred to the Reserves on the expiration of fixed term
appointments;
• officers who are subject to
limited-tenure promotion or management initiated early retirement to be
transferred to the Reserves on the expiration of the limited-tenure promotion or
relevant management initiated early retirement period.
Provisions dealing with the Chief of the
Defence Force, the Vice Chief of the Defence Force, the Chief of Army and the
Chief of Navy
17. Section 9 of the Defence Act
provides that the Governor-General may appoint an officer of an arm of the
Defence Force to be the Chief of the
7.
Defence Force and appoint an officer from an arm of
the Defence Force to be the service chief of that arm. Section 9AA of the
Defence Act provides that the Governor-General may appoint an officer of an arm
of the Defence Force to be the Vice Chief of the Defence
Force.
18. The Defence Legislation Amendment Act
1995 (Act No. 43 of 1995) inserted a new section 9BA into the Defence Act which
enables the appointments of the Chief of the Defence Force, the Vice Chief of
the Defence Force and the service chiefs to be for fixed terms. It also inserted
new provisions into the Defence Act and Naval Defence Act dealing with the
retirement and termination of officers. These included section 20 of the Defence
Act and section 13C of the Naval Defence Act. These provide that, when the term
of appointment of the Chief of the Defence Force, the Vice Chief of the Defence
Force, the Chief of Army and the Chief of Navy end, the Governor-General must
retire the officer as soon as is reasonably practicable unless the officer has
been re-appointed or appointed to another office under section 9 or 9AA of the
Defence Act before the appointment ended. (The corresponding Air Force provision
is contained in the Air Force Regulations.)
19. As
an alternative to the Governor-General’s power to retire these officers,
items 3 and 15 of this Schedule amend subsection 20(1) the Defence Act and
subsection 13C(1) of the Naval Defence Act to enable the Chief of the Defence
Force, the Vice Chief of the Defence Force, the Chief of Army and the Chief of
Navy to be transferred to the Reserve on the expiration of their appointments
where they are on fixed term appointments. The amendments ensure that these
officers will only be transferred to the Reserves where they request this
action. This will streamline the administrative processes for dealing with these
officers at the end of their statutory appointments, and avoid the more
cumbersome requirement of an officer being first retired from the Defence Force
and then appointed to the Reserves under separate processes. (A corresponding
amendment will be made to the Air Force Regulations which contain similar
provisions in relation to the Chief of Air
Force.)
20. Items 4, 5, 6, 7, 16, 17, 18 and 19 of
this Schedule make consequential amendments as a result of the above
amendments.
Provisions dealing with officers who
are subject to limited-tenure promotion or management initiated early
retirement
21. Section 10B of the Defence Act
and section 13A of the Naval Defence Act provide for the limited-tenure
promotion of officers of the Army and Navy.
8.
At the end of their limited-tenure promotion these
officers are presently retired under the provisions unless they are given
permission to revert to the rank they held immediately before their promotion.
Sections 25B and 25D of the Defence Act and sections 13K and 13M of the Naval
Defence Act provide for the management initiated early retirement of officers of
the Army and Navy with or without a special benefit. (The corresponding
provisions dealing with the limited-tenure promotion and management initiated
early retirement of officers in the Air Force are contained in the Air Force
Regulations.)
22. Items 1, 2, 13 and 14 of this
Schedule amend the Defence Act and Naval Defence Act to enable officers to be
transferred to the Reserve on the expiration of their limited-tenure promotion,
where they request this action. Items 8, 9, 10, 11, 20, 21, 22 and 23 of this
Schedule amend the Defence Act and Naval Defence Act to enable officers to be
transferred to the Reserve on the expiration of their relevant management
initiated early retirement period, where they request this action. Items 12 and
24 of this Schedule are savings provisions dealing with action that has occurred
prior to the commencement of these
provisions.
23. The amendments will maintain access
to these officers’ expertise, and avoid the more cumbersome requirement of
an officer being first retired from the Defence Force and then appointed to the
Reserves under separate processes.
Schedule
3 - Delegation of powers to retire, and terminate the appointments of,
officers
24. Sections 21, 22, 24 and 25 of
the Defence Act 1903 and sections 13D, 13E, 13G and 13H of the Naval Defence Act
1910 provide the Chief of Army and Chief of Navy with powers in relation to the
retirement of officers and termination of officer appointments. The
Chiefs’ powers of retirement and termination can only be exercised in
relation officers of the rank of Colonel (equivalent) or below. In addition,
sections 25B and 25D of the Defence Act and sections 13K and 13M of the Naval
Defence Act provide the Chief of Army and Chief of Navy with powers in relation
to the management initiated early retirement of officers. At present, the Chiefs
cannot delegate any of these powers.
25. The two
items of this Schedule amend subsection 120A(4AA) of the Defence Act and
subsection 44B(3A) of the Naval Defence Act to enable the
9.
Chief of Army and Chief of Navy to delegate these
powers to an officer not below the rank of Brigadier (in the case of Army) and
Commodore (in the case of Navy).
Schedule 4
- Amendment of the Defence Force Discipline Act
1982
26. This Schedule amends one provision
of the Defence Force Discipline Act and repeals an obsolete provision from that
Act.
27. Subsection 96(1) set a time limitation of
3 years on charging persons with most offences under the Act. Item 1 of this
Schedule amends subsection 96(1) by extending from 3 to 5 years the present time
limitation on charging persons with most offences under the Act. This measure
results from the Government’s response to the Report of the Senate Foreign
Affairs, Defence and Trade References Committee on the ‘Crash of RAAF
Nomad Aircraft A18-401 on 12 March
1990’.
28. Item 2 of this Schedule repeals
section 196B of the Defence Force Discipline Act. That provision required the
review of discipline law as soon as practicable after 3 years of the Act’s
operation. This review occurred in 1988-89 and its recommendations have been
implemented so the provision no longer serves any
purpose.
Schedule 5 - Repeal of the Supply
and Development Act 1939
29. Part 1 of this
Schedule repeals the obsolete Supply and Development Act 1939. That Act provided
the legislative framework for defence production activities which in the past
formed an integral part of the Defence organisation, and dealt with the
conditions of employment of persons employed at Defence factories and other
establishments. With the removal of defence production from the
Department’s functions and the creation of Government-owned companies such
as Australian Defence Industries in the late 1980s, the Act became largely
obsolete. However, it still played a residual role in providing the statutory
basis of employment for a limited number of persons at factories that were in
the process of being closed down. Those factories have now been closed. The
repeal of this Act will formally remove legislation that no longer serves a
useful purpose.
10.
30. Part 2 of this Schedule makes consequential
amendments to various references to the Supply and Development Act that are
contained in other Commonwealth
Acts.
Schedule 6 - Technical
amendments
31. This Schedule makes minor
technical drafting corrections to a provision in the Defence Force (Home Loans
Assistance) Act 1990 and a provision in the Defence Legislation Amendment Act
(No.1) 1997.