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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DEFENCE LEGISLATION AMENDMENT (FLEXIBLE CAREER PRACTICES) BILL 2000
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Veterans’ Affairs and Minister Assisting the Minister for Defence, the Hon Bruce Scott MP)
ISBN: 0642 436673
The Bill contains amendments to the Defence Act 1903 and the Naval Defence Act 1910 to assist with the implementation of flexible employment practices for members of the Australian Defence Force. The corresponding changes to the conditions of service for members of the Air Force will be dealt with by amendment of the Air Force Regulations. The Bill will:
• extend the Limited-Tenure Promotion scheme to the promotion of officers of the Army to the rank of Lieutenant-Colonel and to the promotion of officers of the Navy to the rank of Commander;
• allow rejection of an officer’s resignation tendered during an initial minimum period of service; and
• allow members to volunteer to change the nature of their appointment (in the case of officers) or enlistment (in the case of enlisted members) from open-ended to fixed.
This bill does not have any significant financial impact.
PRELIMINARY
Clause 1 of the Defence Legislation Amendment (Flexible Career Practices) Bill 2000 sets out how the amending Act is to be cited.
Clause 2 specifies that the amending Act commences on the date to be fixed by proclamation. However, if the amending Act does not commence within a period of 6 months of the date of Royal Assent, it will commence on the first day after the end of that period.
Clause 3 provides that each Act that is specified in a Schedule to the amending Act is amended or repealed in accordance with the applicable items in those Schedules. In addition, this clause specifies that any other item in a Schedule has effect according to its terms.
Finally, clause 4 provides that the amendments made by items 3, 4, 5, 8, 9 and 11 (rejection of resignations), do not apply in relation to appointments made before the commencement of the amending Act.
Schedule 1 - Amendments
1. Summary of proposed changes
The amendments in Schedule 1 will assist with the implementation of flexible employment practices for members of the Australian Defence Force. These amendments will:
• extend the Limited-Tenure Promotion scheme to the promotion of officers of the Army to the rank of Lieutenant-Colonel and to the promotion of officers of the Navy to the rank of Commander;
• allow rejection of an officer’s resignation tendered during an initial minimum period of service; and
• allow members to volunteer to change the nature of their appointment (in the case of officers) or enlistment (in the case of enlisted members) from open-ended to fixed.
2. Background
A fundamental tenet of the Australian Defence Force Personnel Strategy is the development of flexible employment practices to provide Service Chiefs with an enhanced ability to shape the uniformed workforce. The availability of these tools will assist career management and workforce planning staff to pro-actively manage the total personnel asset.
Subsection 10B(1) of the Defence Act currently provides that the Governor-General may promote officers of the Army to the rank of Colonel, or a higher rank, for a specified period. Subsection 13A(1) of the Naval Defence Act is in similar terms with respect to the promotion of officers of the Navy to the rank of Captain or a higher rank.
Extending the Limited-Tenure Promotion scheme to the promotion of officers of the Army to the rank of Lieutenant-Colonel, or a higher rank, and to the promotion of officer of the Navy to the rank of Commander, or a higher rank, will introduce greater flexibility in the management of mid-senior officers in the Army and Navy.
Section 17 of the Defence Act provides that an officer of the Army may, by writing to the Chief of Army, tender the resignation of his or her military office, but that the resignation shall not be accepted, and is not effective, except as provided by that section. Section 13 of the Naval Defence Act is in similar terms for officers of the Navy.
Subsection 17(2) of the Defence Act and subsection 13(2) of the Naval Defence Act set out the reasons for which the Chief of Army, or the Chief of Navy , may reject the resignation of an officer without reference to the Governor-General. The reasons for rejecting a resignation include the fact that:
• It was tendered in time of war, or defence emergency;
• Its acceptance would, in the opinion of the relevant Service Chief, seriously prejudice the ability of the particular Service to carry out its operations;
• It was tendered when the officer had not completed a period of twelve months service following promotion to the rank of Major or Lieutenant-Commander or a higher rank; or
• It was tendered before the officer had completed a period of service that the relevant Service Chief had determined that the officer had to complete.
In order to require officers to serve for an initial period of service, amendment of the Defence Act and the Naval Defence Act will enable the Chief of Army or the Chief of Navy, as the case may be, to reject the resignation of an officer, without reference to the Governor-General, if it is tendered during the officer’s initial period of service. The provisions provide that the officer’s initial period of service will be determined by instrument in writing by the relevant Service Chief.
Section 10C of the Defence Act provides than an officer of the Army appointed for a specified period of service, may, on or before the expiration of that period, volunteer for a further period of service or for a permanent appointment. If the Chief of Army accepts the request, then the appointment of the officer is extended for a further specified period of service or the appointment is converted to a permanent appointment. Section 11 of the Naval Defence Act is in similar terms for officers of the Navy.
While there is the ability to convert an appointment for a specified period into a permanent appointment (that is, an appointment which expires when the officer attains retiring age), there is no power to convert an appointment which expires on attaining retiring age to an appointment which is for a specified period.
So as to introduce greater flexibility in relation to the employment of officers, the Bill amends the Defence Act and the Naval Defence Act to allow officers to convert their permanent appointment to an appointment for a specified period. The new provisions will provide that this would only occur when the officer volunteers for the conversion.
Section 36 of the Defence Act provides that a person may volunteer to serve as a soldier in a particular part of the Army for either a fixed period or until attaining retiring age. Section 37 of that Act provides that where a soldier is enlisted otherwise than attaining retiring age, the soldier may volunteer to extend the period of his or her enlistment for a fixed period or until attaining retiring age. Section 25 and 26 of the Naval Defence Act are in similar terms in relation to sailors.
While there is the ability to convert an enlistment for a fixed period into an enlistment that expires when the soldier, or sailor, attains retiring age, there is no power to convert an enlistment that expires when the soldier, or sailor, attains retiring age to an enlistment for a fixed period.
So as to introduce greater flexibility in relation to the employment of soldiers and sailors, amendment of the Defence Act and the Naval Defence Act will allow soldiers and sailors to convert their enlistment which expires on attaining retiring age to an enlistment for a fixed period.
3. Clauses and Schedule involved in the changes
Clause 2: provides the commencement rules for the Schedule.
Clause 3: provides that each Act that is specified in the Schedule is amended as set out in the Schedule.
Clause 4: provides that the provision pertaining to the rejection of resignations (items 3, 4, 5, 8, 9 and 11) do not apply in relation to appointments made before commencement of the amending Act.
Schedule 1
Defence Act 1903
Item 1: amends subsection 10B(1) of the Defence Act.
Item 2: amends section 10C by adding new subsection 10C(2).
Item 3: makes minor technical amendments to paragraphs 17(2)(a), (b) and (ba)
Item 4: inserts new paragraph (ca) into subsection 17(2).
Item 5: makes consequential amendments to subsection 27AA(3).
Item 6: inserts new section 37A.
Naval Defence Act 1910
Item 7: inserts new subsection 11(2).
Item 8: makes minor technical amendments to paragraphs 13(2)(a), (b) and (ba)
Item 9: inserts new paragraph (ca) into subsection 13(2).
Item 10: amends subsection 13A(1)
Item 11: makes consequential amendments to subsection 17B(3).
Item 12: inserts new section 26A.
4. Explanation of the changes
The amendments effected by items 1 and 10 amend subsection 10B(1) of the Defence Act and subsection 13A(1) of the Naval Defence Act respectively. These amendments give effect to the extension of the Limited-Tenure Promotion Scheme to promotion to the ranks of “Lieutenant-Colonel” and “Commander” respectively.
As noted above, section 17 of the Defence Act relates to resignation of officers in the Army. In particular, subsection 17(2) provides the Chief of Army with a power to reject the resignation of an officer (without reference to the Governor-General) in a number of circumstances. The amendments effected by item 4 extend this power to reject resignation to situations where an officer has not completed an initial minimum period of service. Item 3 makes minor technical amendments to paragraphs 17(2)(a), (b) and (ba) to make it clear that the paragraphs are each separate circumstances in which the power can be exercised, rather than cumulative requirements. Item 5 makes consequential amendments to section 27AA. Section 27AA allows the transfer of officers to other arms of the Defence Force. Subsection 27AA(3) currently provides that, where an officer is required to complete a period of service under paragraph 17(2)(c), the requirement continues to apply after the transfer takes effect and the Chief of Navy and the Chief of Air Force (as the case may be) are able to reject the officer’s resignation in the same way the Chief of Army could under paragraph 17(2)(c). Item 5 inserts a reference to new paragraph 17(2)(ca) in subsection 27AA(3) to ensure comprehensive application of the provision. Items 8, 9 and 11 make similar amendments to the equivalent provisions of the Naval Defence Act.
Item 2 inserts new provisions 10C(2) into the Defence Act to ensure that an officer is able to convert a permanent appointment to an appointment for a fixed period. The conversion of a permanent appointment may only be done on the request of the officer (ie, voluntarily) and, after such a request is made, is done by the Chief of Army by written instrument. Item 7 makes similar amendments for the Navy by inserting new subsection 11(2) into the Naval Defence Act.
New section 37A is inserted immediately after current section 35 by item 6 to enable members other than officers (ie, soldiers) who have enlisted until retiring age to convert this to an enlistment for a fixed period. The conversion of the soldiers enlistment is only possible on the voluntary request of the soldier and, if the soldier’s offer is accepted, new subsection 37A(2) provides that the enlistment is converted automatically by force of the subsection.
Item 12 makes similar amendments to the Naval Defence Act by inserting new section 26A into that Act.
5. Commencement
The amendments in Schedule 1 will commence on proclamation (or six months after the date of Royal Assent if they are not proclaimed by that date).