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2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
DEFENCE LEGISLATION AMENDMENT
BILL
2003
(Circulated by authority of the Minister for
Veterans’ Affairs and Minister Assisting the Minister for Defence, the
Honourable Danna Vale)
The Bill proposes to:
• implement recommendations made by
Brigadier A.R. Abadee, Deputy Judge Advocate General, in his 1997 report in
relation to the military discipline system and to implement the findings of an
internal review of the military discipline system carried out subsequent to the
Abadee Report.
• make various amendments to the Defence Force
Discipline Act (DFD Act) that will continue the process of harmonising the
offence provisions contained in the DFD Act with the general principles of
criminal responsibility as codified by Chapter 2 of the Criminal Code Act
1995 (the Criminal Code);
• make amendments to modernise the
titles of the Cadet Corps;
• increase the penalties for breaches
of sections 80A and 80B of the Defence Act 1903, relating to persons who
falsely represent themselves to be returned servicemen or improperly use service
decorations;
• ensure that the regulation-making provision in the
Defence Act dealing with inquiries specifically covers inquiry assistants, and
ensure that the Defence Act will enable regulations to deal with the issue of
self-incrimination by witnesses when questioned as part of a Defence inquiry so
that those statements cannot be used against the witness otherwise than in
proceedings by way of a prosecution for giving false
testimony;
• make amendments to the Defence Force (Home Loans
Assistance) Act 1990 to permit certain classes of ex-members of the
Australian Defence Force to apply for a home loan subsidy beyond the current 2
year period in particular circumstances;
• correct an error in the
commencement date to the Defence Legislation Amendment (Application of
Criminal Code) Act 2001; and
• correct a typographical error
in the Defence Reserve Service (Protection) Act 2001.
The only financial impact is the extension of the eligibility to access
the Defence Force Home Loans Assistance Scheme. This extension is expected to
cost an additional $79,000 per year, which will be absorbed from the
administrative component of Departmental funding. The remaining amendments in
the Bill have no financial impact.
NOTES ON CLAUSES
1. This clause provides for the Act, when enacted, to be cited as the
Defence Legislation Amendment Act 2003.
2. This clause provides for the commencement of the Act.
Clause 3 - Schedule(s)
3. This clause provides that the
Acts and Regulations mentioned in the Schedules are amended according to the
applicable items of the Schedules.
Schedule 1
– Amendment of the Defence Force Discipline Act
1982
Item 1 inserts a new definition of a “competent reviewing
authority” into the DFD Act and provides that the term is defined by new
section 150A.
Item 2 changes the description of the assault
offence provision in section 34 into more appropriate and relevant military
terminology by changing the heading of the section from “Assaulting an
inferior” to “Assaulting a subordinate” and amending paragraph
34(1)(b) by substituting the word “subordinate” for
“inferior”.
Item 3 changes subsection 34(3) in a
similar manner to Item 2 by substituting the word “subordinate” for
“inferior”.
Item 4 repeals section 35 of the DFD Act
and substitutes a new section 35 which reformulates the offence. The new
formulation clarifies the operation of the fault element of
“negligence” with respect to the result of the conduct of the person
performing the duty. This amendment is necessary to eliminate the anomalous
effect of the definition of “negligence” as defined in section 5.5
of the Criminal Code on the previous formulation of this offence. The
definition of “negligence” under the Criminal Code provides that a
person is negligent with respect to a physical element of an offence (ie. his or
her conduct) if his or her conduct involves:
• such a great falling
short of the standard of care that a reasonable person would exercise in the
circumstances; and
• such a high risk that the physical element
exists or will exist;
that the conduct merits criminal
punishment.
The structure of the repealed offence is such that the
relevant physical element is simply the conduct of the person performing the
duty. The conduct has already occurred so it does not make sense to assess it
as existing or having a risk of existing. The new subsection 35(1) now
operates consistently with the Criminal Code in that the fault element of
“intention” applies to the physical element of conduct. The fault
element of “negligence” applies to the physical element of result of
conduct, that is, the failure to perform the duty to the required standard.
Consequently, it is not intended that this offence should proscribe an act or
omission that is the result of forgetfulness.
Subsection 11(2) of the DFD
Act applies to the assessment of the fault element of “negligence”
in relation to a member of the Defence Force. Subsection 11(2) must be referred
to when assessing “negligence” in the context of new paragraph
35(1)(c).
Item 5 repeals section 36A and substitutes two new
separate offence provisions of sections 36A and 36B.
Section 36A
currently contains the offences of both unauthorised discharge of a weapon and
negligent discharge of a weapon.
New section 36A provides for the
offence of unauthorised discharge of a weapon. It is deconstructed into three
subsections with subsection (a) relating to the physical element of conduct to
which the default fault element of “intention” applies. Subsection
(b) relates to the result of conduct to which the default fault element of
“recklessness” applies. Subsection (c) relates to the physical
element of circumstance to which the default fault element of
“recklessness” applies. The new section will only apply to offences
where an intentional act has caused or contributed to the discharge of a
weapon.
New section 36B provides for the offence of negligent discharge
of a weapon. The repealed subsection 36A(2) made it unclear as to whether the
fault element of “intention” or the fault element of
“negligence” applied to the physical element of conduct in the
offence. The amended provision now clarifies this by deconstructing the section
into three subsections. Subsection (a) relates to the physical element of
conduct to which the default fault element of “intention” applies.
Subsection (b) relates to the result of conduct to which the fault element of
“negligence” applies by virtue of subsection (c). The provision
will apply to offences where intentional conduct has occurred such as pulling a
trigger of a weapon or throwing a weapon down, and such conduct causes or
contributes to the discharge of the weapon in circumstances where the offender
was “negligent” as to that discharge. The surrounding circumstances
of how the discharge occurred will be used to prove the negligence. Such
circumstances could include the fact that a magazine had been negligently left
on a weapon when carrying out the “unload” procedure, or the failure
to ensure the safety catch was “safe”.
Item 6 repeals
section 40B of the DFD Act. Section 40B provided for the offence of negligent
conduct in driving. After further analysis of this offence in light of Chapter
2 of the Criminal Code it has been determined that the second limb of the
definition of “negligence” in section 5.5 of the Criminal Code,
namely “such a high risk that the physical element exists or will
exist” was meaningless in the context of the offence. Since the
relevant physical element was simply the “conduct” of the driver, it
could not sensibly be said that there was a “risk” that that conduct
would “exist” or not. That conduct has already occurred. It did
not appear meaningful to describe conduct as “existing” or having a
risk of “existing”.
Item 7 inserts a reference to the
Crimes Act 1914 within section 72(1) to make the provision more
meaningful. At present there is no reference within the provision to the
legislation to which the sections referred to in the provision
relate.
Item 8 changes the heading of section 101C so that it more
closely reflects the content of the section and amends subsection 101C(2) to
remove reference to repealed provisions. Sections 101C and 101D of the DFD Act
provide for the investigation of service offences and the requirement to caution
a person before they are questioned. Certain subparagraphs in section 101D have
been repealed, however, references to those subparagraphs in section 101C have
not been removed. The subsection now sets out the precise circumstances in
which the caution is required and its content without reference to any other
provision.
Item 9 inserts new subsections 101C(2A), 101C(2B) and
101C(2C). These subsections include additional requirements for the cautioning
and questioning of persons in custody that prescribe:
• the giving
of the caution in, or translating the caution into, a language in which the
person being cautioned is able to communicate with reasonable fluency;
• the requirement to tape record the giving of the caution and the
person’s response, where this is practicable; and
• that
where tape recording of the caution does not occur,
• the
prosecution bears the burden of proving that it was not
practicable.
Item 10 changes the heading of section 101D so that
it more closely reflects the content of the section and makes a minor technical
amendment to subparagraph 101D(4)(a) to clarify the ambit of the
provision.
Item 11 inserts a reference to subsection 130(5) into
subsection 103(1) to ensure that all provisions in relation to referral of
charges to a convening authority are correctly referred to in subsection 103(1).
Subsection 103(1) of the DFD Act sets out the courses open to a convening
authority when a charge has been referred to that convening authority under
provisions in the DFD Act. This subsection was amended in 1984 by the
Defence Legislation Amendment Act 1984 (Act No. 164 of 1984) to make
reference to paragraph 110(1)(d), subsection 129A(3), section 131A. When this
amendment was made the reference to subsection 130(5) of the DFD Act, which also
allows a summary authority trying a charge to refer that charge to a convening
authority, was inadvertently omitted. The amendment to subsection 103(1)
rectifies this omission.
Items 12, 13 and 14 add a note at the end
of subsections 103(1), 103(2) and 103(4) referring to new subsection 129C(1)
which provides that a charge referred to a Defence Force magistrate must be
referred to the magistrate nominated by the Judge Advocate
General.
Item 15 adds a note at the end of subsection 103(6)
referring to new subsection 129C(2) which provides that a charge or charges
referred to a Defence Force magistrate must be referred to the magistrate
nominated by the Judge Advocate General.
Item 16 inserts
additional subsections in section 103 to allow the referral of a charge from one
convening authority to another in certain circumstances. There is currently no
provision in the DFD Act that allows one convening authority to refer a charge
to another convening authority. In certain circumstances this may be required
in the interests of justice because of service exigencies or the need to
maintain the independence of the convening process. New subsections 103(8) and
103(9) now enable this to occur.
New subsection 103(10) addresses the
situation where a convening authority does not have sufficient power to convene
a general court martial when it may be appropriate. The new subsection permits
the referral of the charge to another convening authority who has such a
power.
Item 17 repeals section 118. This section proscribed the
appointment of biased officers or officers perceived to be biased, as members,
reserve members or judge advocate of a court martial. There is no longer a need
to retain this section is the question of bias is now covered in subsection
129B(2).
Items 18, 19 and 20 add a note at the end of subsection
119(1), section 123 and subsection 124(3) referring to new subsection 129B. New
subsection 129B provides that a convening authority must not appoint a member,
reserve member, or judge advocate of a court martial unless the person has been
appointed by the Judge Advocate General.
Item 21 adds a note at
the end of subsection 127, which makes reference to the new subsection 196(2A).
This new subsection provides that a member of the judge advocates’ panel
is appointed for a maximum period of 3 years but is eligible for
reappointment.
Item 22 adds a note at the end of subsection
129A(4) referring to new section 129C which provides that a charge referred to a
Defence Force magistrate must be referred to the magistrate nominated by the
Judge Advocate General.
Item 23 adds new Division 5 at the end of
Part VII of the DFD Act. Division 5 deals with the nomination of Defence Force
magistrates and members of courts martial by the Judge Advocate
General.
The previous arrangements under the DFD Act were that convening
authorities appoint the President, judge advocate and members of a court
martial. The new arrangements introduced by Division 5 provide that the
President and members of a court martial should be drawn from outside the
accused’s unit, and subject to the exigencies of service, from outside the
convening authority’s command. The selection of
these positions should occur independently of the convening authority. This
Item inserts a new section 129B into the DFD Act which provides for the Judge
Advocate General rather than a convening authority to appoint the President, a
judge advocate and the members or reserve members of a court martial.
At
present, convening authorities also appoint Defence Force magistrates to try
charges. The Item also inserts new section 129C which provides for the Judge
Advocate General to nominate the Defence Force magistrate to try the charge(s)
and provides that convening authorities may only refer a charge to the Defence
Force magistrate nominated by the Judge Advocate General.
Item 24
inserts new section 150A at the end of Division 1 of Part IX of the DFD Act.
Part IX sets out the procedure for the review of proceedings of service
tribunals. In all cases, proceedings that have resulted in a conviction must be
automatically reviewed as soon as possible after the conviction has been
recorded. In addition, a convicted person may lodge a petition for review
within 90 days of a conviction. A further application for review may be made to
a service chief if it appears to the service chief that there are sufficient
grounds to justify a review. In respect of all convictions, except those by the
lowest level of summary authority, a reviewing authority (which includes the
service chiefs) must obtain a legal report of the proceedings before conducting
a review. This report is binding on reviewing authorities on questions of
law.
Some difficulties have been experienced in relation to the sequence
of review under Part IX. Previously, a convicted person was required to lodge a
petition for review within 90 days of conviction despite the fact that it was
not always possible to complete an automatic review of the proceedings within
that period of time. In those circumstances, if the convicted person wished to
lodge a petition for review, he or she was compelled to do so before the
automatic review was completed. This was impractical because the automatic
review often addressed the issues that formed the basis of the member’s
petition.
This issue has been addressed by making an amendment to allow
a convicted person to lodge an application for review under Part IX within 30
days of an automatic review being completed. The convicted person is still able
to lodge a petition before an automatic review has been conducted if he or she
chooses to do so. The compulsion to lodge a petition where automatic review has
not been conducted within 90 days is removed.
The amendments at this
Item and Items 25, 26, 27, 28, 29 and 30 concern the review process.
The
new section 150A defines a “competent reviewing authority” for the
purposes of reviewing the proceedings of a service tribunal. This section will
restrict a reviewing authority from reviewing court martial proceedings it has
convened, or proceedings conducted by a Defence Force magistrate that it has
referred a charge to. Consequently, a “competent reviewing
authority” is an authority who has had no involvement in convening the
proceedings under review. The purpose of the amendment was to ensure the
impartiality of the reviewing authority.
Item 25 inserts new
subsection 151(6) into the section dealing with preliminary automatic review by
a commanding officer. The new subsection provides that where the legal officer
does not transmit the report under section 154 requested by the commanding
officer in subsection 151(3) and the record of proceedings in accordance with
subsection 151(5), the commanding officer must give written notice of the
results of the review to the person who was convicted of the service
offence.
Item 26 makes a consequential amendment to subsection
152(1) of the DFD Act as a result of the insertion of the new definition of a
“competent reviewing authority”.
Item 27 inserts a new
subsection 152(3) which provides that a reviewing authority must give written
notice of the results of the review to the person who was convicted of the
service offence or to the person in relation to whom a direction under
subsections 145(2) or (5) was given.
Item 28 amends subsection
153(1) to remove the requirement that a petition for review be lodged within a
90-day period.
Item 29 inserts new subsections 153(1A) and 153(1B)
which provide for lodgement of a petition within 30 days after completion of the
automatic review process. The new subsection 153(1A) enables a person to lodge
a petition within 30 days after receiving notice of the results of the review by
the reviewing authority pursuant to new subsection 152(3) or alternatively,
after receiving notice of the results by the commanding officer pursuant to new
subsection 151(6). The new subsection 153(1B) makes provision for a reviewing
authority to extend the 30 day period for lodgement of the petition for
review.
Item 30 makes a consequential amendment to subsection
153(2) of the DFD Act as a result of the insertion of the new definition of
“competent reviewing authority”.
Item 31 inserts new
subsections 154(1A) and 154(1B) to provide for fixed 3 year terms of appointment
for persons appointed as legal officers to conduct reviews for the purposes of
paragraph 154(1)(a) of the DFD Act, with provision for reappointment for a
further period or periods. Judge Advocates, Defence Force magistrates and
“section 154 reporting officers” were previously not subject to a
fixed term of appointment. Their appointments were open-ended and the holder of
an appointment fulfilled that role until their instrument of appointment was
withdrawn or until the appointee retired.
Item 32 amends
subsection 155(1) of the DFD Act to omit “Chief of Staff” and
substitute “Chief of the Defence Force or the service chief”.
Subsections 155(1), 155(2) and 196(2) of the DFD Act make reference to
“Chief of Staff”. These references were inserted into the DFD Act
by the Defence Legislation Amendment Act 1995 (Act No. 43 of 1995) which
contained amendments to remove gender specific language in all Defence
legislation including the DFD Act. The Defence Legislation Amendment Act
(No. 1) 1997 (Act No. 1 of 1997) contained amendments to subsections 155(1),
155(2) and 196(2) (among others) to replace references to “Chief of
Staff” with “service chief” which is now the accepted
terminology within Defence. Despite this action, the amendments to replace the
term Chief of Staff did not take effect. Item 32 corrects this position in
subsection 155(1).
Item 33 amends subsection 155(2) to omit
reference to “Chief of Staff” and substitute “Chief of the
Defence Force or the service chief”.
Item 34 inserts the
definition of “officer cadet” into section 169A of the DFD Act. It
includes a defence member who holds the rank of midshipman in the Navy and
officer cadet in the Army or Air Force. The purpose of this definition
provision is to extend the jurisdiction of the discipline officer scheme to
include “officer cadets” in addition to defence members below
non-commissioned rank. The discipline officer scheme in Part IXA of the DFD Act
is an administrative process designed to deal with disciplinary infringements.
Items 35 and 36 make consequential amendments to subsections 169C
and 169D(1) relating to the extension of the discipline officer
scheme.
Item 37 makes a technical amendment to subsection 169F(2)
to substitute the word “penalty” with “punishment”.
Item 38 inserts a new section 169FA after section 169F of the DFD
Act. There was previously no provision specifying when a punishment imposed by
a discipline officer took effect. Consequently, it was assumed that any
punishment imposed by a discipline officer should take effect immediately.
However, section 171 of the DFD Act provides that a summary authority may impose
a punishment to take effect on a specified date, but no later than 14 days after
the date on which it was imposed. The effect of this is that the punishment may
be delayed for 14 days. The new section 169FA provides, in a similar vein to
section 171, that a discipline officer may impose a punishment to take effect
immediately or to take effect on a specified day, but no later than 14 days
after the day on which the punishment is imposed.
Item 39 repeals
the heading to Part XI and substitutes a new heading to include reference to the
Chief Judge Advocate.
Item 40 adds a new division at the end of
Part XI. The new Division 2 provides for the establishment of a statutory
position of Chief Judge Advocate, who will administratively assist the Judge
Advocate General in such of his or her powers that he or she delegates to the
Chief Judge Advocate.
The new section 188A provides that the Judge
Advocate General may appoint an officer to be the Chief Judge Advocate for a
period not exceeding 3 years. Subsection 188A(3) provides that the appointment
may be extended for a further period or periods.
The new section 188B
sets out the role of the Chief Judge Advocate and provides that the Judge
Advocate General may delegate all or any of his or her powers to the Chief Judge
Advocate. This delegation power is limited by subparagraphs 188B(3)(a), (b) and
(c).
The new sections 188C and 188D set out the eligibility requirements
and procedure for resignation of the Chief Judge Advocate.
One of the
eligibility requirements for the Chief Judge Advocate included in the new
section 188C is that he or she must be a member of the judge advocates’
panel under section 196 of the DFD Act. Officers are appointed to the judge
advocates’ panel by the Chief of the Defence Force or a service chief
after being nominated by the Judge Advocate General.
Items 41, 42,
43 and 44 relate to the decision of the High Court
in Re Tracey: ex parte Ryan (1989) 166 CLR 518 concerning
subsections 190(3) and 190(5) of the DFD Act. Although affirming the
jurisdiction of service tribunals under the DFD Act, it declared that provisions
190(3) and (5) were invalid. These provisions addressed the issue of double
jeopardy and were intended to protect an individual from prosecution by both a
civil court and a service tribunal. Specifically the subsections sought to
protect individuals who had been acquitted or convicted of service offences (or
who have had service offences considered in relation to a service offence
conviction) from being tried by a civil court for a civil court offence that is
substantially the same.
Item 45 amends subsection 196(2) to omit
“Chief of Staff” and substitutes “Chief of the Defence Force
or the service chief”.
Item 46 inserts subsections 196(2A)
and 196(2B) which provide that appointment to the judge advocate’s panel
will be for a period of 3 years with provision for reappointment.
Item
47 repeals the table Item in relation to “Any other subordinate
summary authority” Table C of Schedule 3 and substitutes a new table item.
The new table item is required to bring the punishments into line with the scale
of punishments in section 68 of the DFD Act. It also makes it clear that
commanding officers and executive officers of ships and naval establishments
have the power to impose punishment on soldiers and airmen, as well as the power
to try soldiers and airmen under subsection 108(2).
Item 48
provides that amendments made by Items 21, 31 and 46 will only apply to
appointments made after the commencement of the DFD
Act.
Schedule 2 – Amendment of other
Acts
The amendments in Schedule 2 are described on a
subject by subject basis.
On 8 December 2000, the Government released Cadets: The Future, a
strategic plan for the Australian Cadet Services Scheme, which comprises the
Naval Reserve Cadets, the Australian Army Cadet Corps and the Air Training
Corps.
Amongst other things, the Report recommended contemporary terms be
used to described the training corps for each service as
follows:
• the Naval Reserve Cadets was to become the Australian
Navy Cadets; and
• the Australian Army Cadet Corps was to become
the Australian Army Cadets; and
• the Air Training Corps was to
become the Australian Air Force Cadets.
The Government agreed with this
recommendation. Amendments to the relevant legislation will give effect to the
change of name as follows:
Items 9-11 make consequential amendments to the cadet force
references in the Archives Act 1983.
Items 12-15 and 20
amend various provisions in the Defence Act to give effect to the new
references to the cadet forces. (In the case of the Australian Army Cadet
Corps, it will now be referred to in the provisions as the Australian Army
Cadets).
Item 25 is a transitional provision made for the purposes
of Defence Act to make clear that despite the changes in name, appointments to
the Australian Army Cadet Corps continue.
Items 30-32 make
consequential amendments to the cadet force references in the Freedom of
Information Act 1982.
Items 39-42 make consequential amendments to the cadet force
references in the Privacy Act 1988 and the Safety,
Rehabilitation and Compensation Act 1988.
These provisions will
commence on a day to be proclaimed, or alternatively 6 months after the Bill
receives Royal Assent. This is to allow other Regulations that have references
to the old names to be identified and changed. (See Clause 2 of the
Bill.)
The Bill contains provisions that will increase the maximum penalties for
section 80A of the Defence Act (which makes it an offence for a person to
falsely represent himself or herself to be a returned soldier, sailor or airman)
and section 80B of the Defence Act (which creates 3 offences dealing with the
improper use of service decorations). The section 80B offences cover the
situations of a person:
• other than a family representative,
wearing a service decoration that has not been conferred on that
person;
• falsely representing him-or-herself as a person on whom a
service decoration has been conferred; and
• defacing or destroying
a service decoration.
At present, the current maximum penalty for
contravening section 80A is a fine of $200, or 6 months imprisonment, while the
current maximum penalty for contravening an offence under section 80B is a fine
of $200.
The provisions are now being amended to increase the penalties
in order to:
• better reflect the gravity of these offences;
• preserve the integrity of the medal awards system; and
• deter behaviour such as representing oneself as a returned
soldier, sailor or airman.
With the exception of the offence of defacing
or destroying a service decoration in subsection 80B (5), the amendments will
increase the penalties in these sections to 30 penalty units (currently $3300
under the Criminal Code) or 6 months imprisonment. In the case of the offence
of defacing or destroying a service decoration in subsection 80B (5), the
amendments will increase the penalty to 60 penalty units (currently $6600) or 12
months imprisonment.
Items 16-18 make the changes to give effect
to the 30 penalty units or 6 months imprisonment.
Item 19 gives
effect to the change for the offence of defacing or destroying a service
decoration in subsection 80B (5).
These items will commence 28 days after
the day the Bill receives the Royal Assent. (see clause 2 of the Bill.)
Paragraph 124(1)(gc) of the Defence Act allows for the Governor-General
to make regulations for the appointment, procedures and powers of courts of
inquiry, boards of inquiry and investigating officers. The Defence (Inquiry)
Regulations 1985 set out the detail as to how inquiries operate. The
Defence (Inquiry) Amendment Regulations 2000 (No.1) (S/R 2000 No.327),
created, amongst other things, the concept of an “inquiry
assistant”.
These amendments make it clear that regulations can be
made to create the position of inquiry assistant. Item 21 makes the
necessary change to paragraph 124(1)(gc).
Subsections 124(2A) and (2B) of
the Defence Act 1903 enable the making of regulations dealing with
questions that can be put to witnesses. Subsection 124(2C) of the Defence
Act 1903 deals with the admissibility in evidence of statements made by a
witness. These provisions currently do not extend to circumstances where
information is provided to an investigating officer or an inquiry assistant.
The amendments made by Items 22-24 extend these provisions to inquiries
by investigating officers and inquiry assistants.
These amendments
commence on Royal Assent. (See clause 2 of the Bill.)
Amendments
relating to the Defence Home Owners Scheme
The Defence Force
(Home Loans Assistance) Act 1990 establishes the Defence Home Owner Scheme,
which provides subsidised home loan interest payments to serving and ex-members
of the Australian Defence Forces. The Act provides that having completed the
necessary qualifying service, members may apply for the loan subsidy at any time
during service. Ex-members must apply within 2 years of service. This is
because the Scheme’s primary focus is to support the serving member.
Whilst it aims to assist in the resettlement of ex-members, it does not intend,
nor purport to provide, indefinite and ongoing support to veterans. This is
reflected in the 2 year limit on the right to ex-members to apply for a
subsidy.
However, the Government has agreed to a request from the
Ombudsman to relax the 2 year limit on applying for a subsidy where someone is
discharged from the Defence Forces as a result of a physical or mental condition
that may prevent or inhibit their capacity for, or interest in, home ownership
in the 2 years immediately after discharge.
Item 26 adds a
paragraph 3(ba) to the Defence Force (Home Loans Assistance) Act to make
this decision (Item 27 refers) reviewable on merit in the Administrative Appeals
Tribunal.
Item 27 adds subsection 4(1A) and 4(1B) to the Defence
Force (Home Loans Assistance) Act to permit the Secretary to the Department of
Defence to make a determination that a person continues to be eligible
notwithstanding the 2 year limit. This determination can be made when there has
been a written application from an incapacitated person; and the Secretary is
satisfied that the compensable disability that caused the person’s
discharge also either caused or contributed to the person’s failure to
apply for a subsidy within the usual 2 year period. This will allow the person
to claim subsidy.
These provisions will commence on Royal Assent. (See
clause 2 of the Bill.)
Amendments to clarify the commencement date
of the Defence Legislation Amendment (Application of Criminal Code) Act
2001
The Defence Legislation Amendment (Application of
Criminal Code) Act 2001 (the 2001 Act) amends a number of Acts so
that criminal provisions contained within the legislation are drawn in a form
compatible with the Criminal Code.
Item 28 is a clarification
amendment that makes it clear that the 2001 Act commenced operation on 15
December 2001.
Clause 2 of the Bill ensures that the amendment in Item 28
is taken to be made immediately after the commencement of section 2 of the
Defence Legislation Amendment (Application of Criminal Code) Act. Related
regulation amendments are contained in Schedule 3.
Correction of
typographical error
Item 29 corrects an incorrect
reference to subsection 32A(4), made in subsection 12(1) of the Defence
Reserve Service (Protection) Act 2001, with a reference to subsection
32A(3). Clause 2 of the Bill ensures that the amendment commences immediately
after the original commencement of the Defence Reserve Service (Protection)
Act.
Schedule 3 – Amendment of
Regulations