DEFENCE.
No. 92 of 1964.
An Act Relating to the Defence Force.
[Assented to 6th November, 1964.]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Short title and citation.
1.—(1.) This Act may be cited as the Defence Act 1964.
(2.) The Defence Act 1903–1956 is in this Act referred to as the Principal Act.
(3.) The Principal Act, as amended by this Act, may be cited as the Defence Act 1903–1964.
Commencement.
2. This Act shall come into operation on the day on which it receives the Royal Assent.
3. Section two of the Principal Act is repealed and the following section inserted in its stead:—
Parts.
“2. This Act is divided into Parts, as follows:—
Part I.—Introductory (Sections 1–7).
Part II.—Administration (Sections 8–28).
Part III.—The Defence Force.
Division 1.—Constitution of the Defence Force (Sections 30–32a).
Division 2.—The Raising of the Defence Force and the Enlistment and Discharge of Members thereof (Sections 33–44).
Division 3.—The Service of the Forces (Sections 45–51).
Division 4.—General Provisions (Sections 54–58).
Part IV.—Liability to Serve in the Citizen Forces in Time of War (Sections 59–61b).
Part V.—Cadets (Section 62).
Part VI.—Special Powers in Relation to Defence (Sections 63–72).
Part VII.—Offences (Sections 73–85).
Part VIII.—Courts-martial (Sections 86–100).
Part IX—Legal Procedure (Sections 101–116).
Part X.—Miscellaneous (Sections 117–123f).
Part XL—Regulations (Section 124).
Part XII.—Protection in Relation to Civil Employment (Sections 125—136).
Part XV.—Military College (Sections 147–151).”.
Definitions.
4. Section four of the Principal Act is amended—
(a) by adding at the end of the definition of “District Commandant” the words “and includes the officer commanding a Command ”;
(b) by omitting the definitions of “Governor-General”, “Minister” and “Oath”;
(c) by omitting from the definition of “Officer” the words “and warrant” (second occurring);
(d) by omitting the definition of “Regulations”;
(e) by omitting the definition of “ The Commonwealth ” and inserting in its stead the following definitions:—
“‘The Citizen Forces’—Includes the Citizen Naval Forces, the Citizen Military Forces and the Citizen Air Force.
‘The Commonwealth’—Includes the Territories of the Commonwealth to which this Act extends.
‘The Naval Discipline Act’ has the same meaning as in the Naval Defence Act 1910–1964.
‘The Reserve Forces’—Includes the Naval Emergency Reserve Forces, the Regular Army Emergency Reserve, the Regular Army Reserve, the Reserve Citizen Military Forces, the Air Force Emergency Force and the Air Force Reserve.”;
(f) by inserting after the definition of “This Act” the following definition:—
“‘Time of Defence Emergency’—Means the period between the publication of a proclamation declaring that a state of defence emergency exists in relation to Australia and the publication of a proclamation that that state of defence emergency no longer exists.”; and
(g) by omitting the definition of “War Substantive Rank” and inserting in its stead the following definition:—
“‘War Substantive Rank’—Means rank conferred on a member of the Military Forces in time of war, to be held only during that time, and conferred instead of or in addition to, any other rank held by the member.”.
Application of Act.
5. Section five of the Principal Act is amended by adding at the end thereof the words “and whether serving within or beyond the territorial limits of Australia”.
Power to appoint Commands, Military Districts, &c.
6. Section eight of the Principal Act is amended—
(a) by adding at the end of paragraph (a) the word “and”; and
(b) by omitting paragraphs (b), (c), (d) and (e).
Delegation of power to make appointments.
7. Section eight a of the Principal Act is repealed.
8. Section ten of the Principal Act is repealed and the following sections are inserted in its stead:—
Appointment and promotion of officers of the Military Forces.
“10.—(1.) The Governor-General may, in accordance with such conditions and subject to such qualifications or requirements as are prescribed or provided for by the regulations—
(a) appoint persons to be officers of the Military Forces; and
(b) promote officers of the Military Forces,
and may issue commissions to persons so appointed.
“(2.) The conditions, qualifications and requirements referred to in the last preceding sub-section may be prescribed or provided for by the regulations with respect to—
(a) appointments and promotions generally;
(b) appointments or promotions—
(i) to specified ranks;
(ii) in specified parts of the Military Forces; or
(iii) of a specified kind; and
(c) persons or officers included within a specified class of persons or officers.
“(3.) The regulations may provide that a prescribed condition, qualification or requirement does not apply, or may be dispensed with, in such cases or circumstances as are prescribed or otherwise provided for by the regulations.
Term of appointment.
“10a.—(1.) In appointing a person to be an officer, the Governor-General (or his delegate under section ten c of this Act)—
(a) shall specify the part of the Military Forces to which the appointment is made;
(b) may express the appointment to be for a specified period of service in that part of the Military Forces; or
(c) may express the appointment to be for a specified period of service in one part of the Military Forces, to be followed by a specified period of service in another part of the Military Forces.
“(2.) The last preceding sub-section does not affect any power expressly or impliedly conferred by any other provision of this Act to transfer an officer from one part to another part of the Military Forces or to terminate the appointment of an officer.
Promotion for distinguished service.
“10b. The Governor-General may appoint a soldier to be an officer, or promote an officer to higher rank, for distinguished service in time of war or for marked ability or gallantry on active service notwithstanding that the member has not complied with a condition, qualification or requirement in relation to appointment or promotion to the rank concerned for which provision is made by or under this Act.
Delegation of power to make appointments and promotions.
“10c.—(1.) The Governor-General may delegate to the Military Board or to an officer of the Military Forces any of the powers to appoint and promote officers of the Military Forces conferred upon him by sections ten and ten b of this Act.
“(2.) A delegation under this section may be made applicable to appointments or promotions of officers to specified ranks or to ranks of a specified kind and either in the Military Forces generally or in a specified part of the Military Forces.
“(3.) A delegation to an officer under this section may be made to a named officer, to the holder of a specified office or appointment or to an officer for the time being performing the duties of a specified office or appointment.
“(4.) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Governor-General.
“(5.) The Governor-General may, within three months after the making of an appointment or promotion by a delegate under this section, cancel the appointment or promotion.
“(6.) Whenever the Governor-General cancels an appointment or promotion, the officer whose appointment or promotion has been cancelled ceases, on the day on which he receives notice of the cancellation, to hold the rank or office to which he was appointed or promoted by the delegate.”.
Promotion from the ranks.
9. Section eleven a of the Principal Act is repealed.
Provisional appointments.
10. Sections fourteen and fifteen of the Principal Act are repealed.
11. Section seventeen of the Principal Act is repealed and the following section inserted in its stead:—
Resignation of officer.
“17.—(1.) An officer of the Military Forces may, by writing under his hand addressed to the Military Board, tender the resignation of his military office, but a resignation shall not be accepted, and is not effective, except as provided by this section.
“(2.) The Military Board may, without reference to the Governor-General, reject the resignation of an officer if—
(a) it is tendered in time of war or in time of defence emergency;
(b) acceptance of the resignation would, in the opinion of the Board, seriously prejudice the ability of the Military Forces to carry out military operations that they are carrying out or may be required to carry out; or
(c) in the case of an officer—
(i) who is engaged in, or has completed, a course of special training, a period of employment on special duties or a period of service outside Australia; or
(ii) who was appointed outside Australia and whose transport, or whose family’s transport, was at the expense of the Commonwealth,
the officer has not completed a period of service that, under a determination of the Military Board, and in the circumstances, the officer is required to complete.
“(3.) The Military Board shall forward to the Minister, for submission to the Governor-General, any resignation that has been tendered and has not been rejected in pursuance of the last preceding sub-section.
“(4.) Where the Minister considers that the resignation of the officer should not be accepted unless and until the officer has complied with a condition, the officer’s resignation shall not be submitted to the Governor-General for acceptance until the officer has complied with that condition.
“(5.) The Governor-General may accept, or refuse to accept, the resignation of an officer, and whenever he accepts the resignation of an officer, shall specify in the instrument of acceptance the date upon which the resignation becomes effective.”.
12. Sections nineteen and twenty of the Principal Act are repealed and the following section is inserted in their stead:—
Seniority.
“19. The seniority of officers of the Military Forces and soldiers in their respective ranks and in relation to other members shall be as prescribed by, or determined in accordance with, the regulations or, in any case for which provision is not made by the regulations, as determined by the Military Board.”.
Repeal of sections 21, 21a. 21b and 22.
13. Sections twenty-one, twenty-one a, twenty-one b and twenty-two of the Principal Act are repealed.
Unattached list.
14. Section twenty-four of the Principal Act is amended by omitting the words “, subject to sections fourteen and fifteen of this Act,”.
15. Sections thirty and thirty-one of the Principal Act are repealed and the following sections inserted in their stead:—
Defence Force.
“30. The Defence Force consists of three arms, namely, the Naval Forces of the Commonwealth, the Military Forces of the Commonwealth and the Air Force of the Commonwealth.
Division of Military Forces.
“31. The Military Forces of the Commonwealth consist of two parts, namely, the Permanent Military Forces and the Citizen Military Forces.
Permanent Military Forces.
“32.—(1.) The Permanent Military Forces consist of four forces, namely, the Australian Regular Army, the Regular Army Supplement, the Regular Army Emergency Reserve and the Regular Army Reserve.
“(2.) The Australian Regular Army consists of officers appointed to, and of soldiers enlisted in, that force.
“(3.) The Regular Army Supplement consists of officers appointed to, and of soldiers enlisted in, that force and of officers transferred to that force from any other part of the Permanent Military Forces or from the Citizen Military Forces.
“(4.) The Regular Army Emergency Reserve consists of soldiers enlisted in that force and of such officers as are appointed to that force or transferred to that force from any other part of the Permanent Military Forces or from the Citizen Military Forces.
“(5.) The Regular Army Reserve consists of soldiers enlisted in that force and of such officers as are appointed to that force or transferred to that force from any other part of the Permanent Military Forces.”.
16. Sections thirty-three and thirty-five of the Principal Act are repealed and the following sections inserted in their stead:—
Organization of Military Forces.
“33. The Military Forces shall be organized as prescribed or, where there is no provision or insufficient provision made by this Act or the regulations with respect to any matter relating to the organization of those Forces, as determined by the Military Board.
Voluntary entry.
“34. Except as provided by Part IV. of this Act or by any other Act, the Military Forces shall be kept up by the appointment to those Forces, or the enlistment in those Forces, of persons who volunteer and are accepted for service in those Forces.
Special force in time of war.
“35. In time of war, the Governor-General may authorize the raising of a military force for service in that time of war or for a specified period, and a force so raised is part of the Permanent Military Forces.”.
Enlistment.
17. Section thirty-six of the Principal Act is amended—
(a) by omitting all the words to and including the word “period:” (first occurring) and inserting in their stead the following words:—
“A person who volunteers to serve as a soldier in the Military Forces shall, if accepted, be enlisted as a soldier in a specified part of those Forces and, upon enlistment, shall be engaged to serve for a prescribed period:”; and
(b) by omitting from the proviso the words “Defence Force” and inserting in their stead the words “Military Forces”.
18. Sections thirty-seven and thirty-eight of the Principal Act are repealed and the following section is inserted in their stead:—
Oath on enlistment.
“37.—(1.) A person offering to be enlisted in any part of the Military Forces shall, if accepted, take and subscribe, before an officer or a Justice of the Peace, an oath in accordance with the appropriate form set out in the Second Schedule to this Act.
“(2.) The taking and subscribing of that oath by a person shall be regarded as the enlistment of that person in the Military Forces and binds him to serve in the Military Forces in accordance with the tenor of his oath until his service is lawfully terminated.”.
Discharge on expiration of period of engagement.
19. Section thirty-nine of the Principal Act is amended—
(a) by omitting sub-section (2.) and inserting in its stead the following sub-sections:—
“(2.) A soldier of the Australian Regular Army or of the Regular Army Supplement is not entitled to be discharged during a time of war, a time of defence emergency or a period for which any part of the Regular Army Emergency Reserve is called out for continuous service.
“(2a.) A soldier of the Regular Army Emergency Reserve or of the Regular Army Reserve is not entitled to be discharged during a time of war, a time of defence emergency or a period for which the part of the Military Forces to which he belongs is called out for continuous service.
“(2b.) A soldier of the Citizen Military Forces is not entitled to be discharged during a time of war or a time of defence emergency.”; and
(b) by omitting from sub-section (3.) the words “he shall remain a member of the Defence Force” and inserting in their stead the words “he remains a soldier of the Military Forces ”.
20. Section forty of the Principal Act is repealed and the following section inserted in its stead:—
Discharge of members of Active Citizen Military Forces.
“40.—(1.) Except in time of war or in time of defence emergency, a voluntarily enlisted soldier of the Active Citizen Military Forces may claim his discharge before the expiration
of the period of service for which he is engaged, if he has given not less than three months’ notice in writing to his commanding officer of his intention to claim his discharge.
“(2.) Whenever a voluntarily enlisted soldier of the Active Citizen Military Forces claims his discharge as provided by the last preceding sub-section, he shall, with all convenient speed, be discharged, but until he is discharged he remains a soldier of those Forces.”.
21. Sections forty-one and forty-two of the Principal Act are repealed and the following sections inserted in their stead:—
Discharge of members of Permanent Military Force Reserves at their own request.
“41.—(1.) Except—
(a) in time of war or in time of defence emergency;
(b) during a period for which the part of the force to which he belongs is called out for continuous service; or
(c) in the case of a member of the Regular Army Emergency Reserve—during any period for which he has volunteered to render continuous full time military service,
a soldier of the Regular Army Emergency Reserve or of the Regular Army Reserve may claim has discharge before the expiration of the period of service for which he is engaged, if he has given not less than three months’ notice in writing to his commanding officer of his intention to claim his discharge.
“(2.) Whenever a soldier of the Regular Army Emergency Reserve or of the Regular Army Reserve claims his discharge as provided by the last preceding sub-section, he shall be discharged with all convenient speed, but until he is discharged he remains a soldier of the Regular Army Emergency Reserve or of the Regular Army Reserve, as the case may be.
Enlistment in Reserve Force.
“42. A person who is discharged from the Active Military Forces may be enlisted as a soldier in the Regular Army Emergency Reserve or the Regular Army Reserve upon taking and subscribing, before an officer or a Justice of the Peace, an oath in accordance with the appropriate form set out in the Second Schedule to this Act.”.
22. Section forty-three of the Principal Act is repealed and the following section inserted in its stead:—
Exemption from jury service.
“43. Members of the Permanent Naval Forces, the Naval Emergency Reserve Forces, the Active Permanent Military Forces, the Regular Army Emergency Reserve, the Permanent Air Force and the Air Force Emergency Force, and, while called out for continuous service, members of the Regular Army Reserve and of the Citizen Forces, are exempt from serving as jurors, whether under a law of the Commonwealth or of a State or Territory of the Commonwealth.”.
23. Sections forty-five, forty-six, forty-seven, forty-nine and fifty of the Principal Act, and the headings to sections forty-five, forty-six, forty-nine and fifty-one, are repealed and the following sections inserted in their stead:—
Service of the Permanent Military Forces.
“45.—(1.) Members of the Australian Regular Army and of the Regular Army Supplement are bound to render continuous full time military service for the respective terms for which—
(a) in the case of officers—they hold their appointments in that force; or
(b) in the case of soldiers—they enlisted or re-engaged to serve in that force,
unless their services are sooner lawfully terminated.
“(2.) If the term of appointment or the term of engagement of a member of the Australian Regular Army or of the Regular Army Supplement expires during a time for which any part of the Regular Army Emergency Reserve is called out for continuous service, a time of defence emergency or a time of war, the term of his appointment, or of his engagement, as the case may be, in the Australian Regular Army or in the Regular Army Supplement, shall be deemed to be extended until the end of that time or, if more than one of those times successively occur, until the end of the last occurring of those times.
“(3.) Except as provided by the next succeeding sub-section and the next two succeeding sections, members of the Regular Army Emergency Reserve and of the Regular Army Reserve are not bound to serve continuously, but are bound to render military service for such periods as are fixed by or in accordance with the regulations.
“(4.) A member of the Regular Army Emergency Reserve may, at any time, voluntarily undertake to render continuous full time military service for a period specified by him and, if that undertaking is accepted, he is bound to render that form of service for that specified period, or for such period or periods within that specified period, as the prescribed authority directs.
Calling out of the Regular Army Emergency Reserve for continuous service.
“46.—(1.) Where the Governor-General considers it desirable to do so, he may, by notice in the Gazette, call out the Regular Army Emergency Reserve, or any specified part of that force, for continuous service.
“(2.) Subject to the succeeding provisions of this section, while the Regular Army Emergency Reserve, or a part of that force, is called out for continuous service in pursuance of the last preceding sub-section, a member of that force, or of that part of that force, as the case may be, is bound to render continuous full time military service for such period or periods as the prescribed authority directs.
“(3.) Where a member of the Regular Army Emergency Reserve has completed a period of twelve consecutive months’ full time military service, he shall be released from employment on that form of service with all convenient speed but, until he is so released, he remains bound, notwithstanding anything in the last preceding sub-section, to render that form of service.
“(4.) Where a member of the Regular Army Emergency Reserve has, whether in accordance with the last preceding sub-section or otherwise, been released from employment on continuous full time military service upon completion of a period of that form of service, then, except in time of war or in time of defence emergency, he is not liable to be again employed on continuous full time military service until the expiration of a period equal to the first-mentioned period.
“(5.) In time of war or in time of defence emergency, members of the Regular Army Emergency Reserve are bound to render continuous full time military service for such period or periods during that time as the prescribed authority directs.
Calling out of the Regular Army Reserve for continuous service.
“47.—(1.) In time of war or in time of defence emergency, the Minister may, by notice in the Gazette, call out the Regular Army Reserve, or any specified part of that force, for continuous service.
“(2.) Whenever the Regular Army Reserve, or a part of that force, is called out for continuous service in pursuance of the last preceding sub-section, a member of that force or part of that force, as the case may be, so called out is bound to render continuous full time military service for such period or periods during the time of war or the time of defence emergency as the prescribed authority directs.
Direction by prescribed authority.
“48. A direction by the prescribed authority under either of the last two preceding sections may be given with respect to different parts, or members within specified classes of members, of the Regular Army Emergency Reserve or of the Regular Army Reserve, as the case requires.
Application of certain regulations to the Reserves.
“49. Regulations made under this Act relating to the discipline and good government of members of the Military Forces, subject to such modifications and adaptations as are provided by the regulations, apply to and in relation to members of the Regular Army Emergency Reserve and members of the Regular Army Reserve, with such exceptions and subject to such modifications and adaptations as are provided by the regulations, with respect to any period for which they are required to render continuous full time military service, as if they were members of the Regular Army Supplement.
Service of the Citizen Military Forces.
“50.—(1.) Subject to this section and the next two succeeding sections, members of the Citizen Military Forces are not bound to serve continuously but are bound to render military service for such periods as are fixed by or in accordance with the regulations.
“(2.) The regulations may make provision for different periods of military training with respect to different parts, or members within specified classes of members, of those Forces.
“(3.) A member of the Citizen Military Forces may, at any time, voluntarily undertake to render continuous full time military service for a period specified by him and, if that undertaking is accepted, he is bound to render that form of service for that specified period or for such period or periods within that specified period as the prescribed authority directs.
Calling out of the Citizen Forces in time of war or defence emergency.
“50a.—(1.) In time of war or in time of defence emergency, the Governor-General may, by proclamation, call out the Citizen Forces, or any part of those Forces, for continuous full time service.
“(2.) The proclamation shall state the reason for the making of the proclamation.
“(3.) If the Parliament is in session at the date of publication of the proclamation, the Governor-General shall forthwith communicate to each House of the Parliament the reason for calling out those Forces or part of those Forces.
“(4.) If the Parliament is not in session at the date of the publication of the proclamation, it shall be summoned to meet within ten days after that date.
Service of the Citizen Forces after call out.
“50b. Whenever the Citizen Forces are, or part of the Citizen Forces is, called out for continuous full time service under the last preceding section, a member of those Forces or part of those Forces so called out is bound to render continuous full time naval, military or air-force service, as the case may be, for such period or periods as the prescribed authority directs, until the publication of a proclamation notifying that the employment of those Forces on that service, or, with respect to members of a part of those Forces, the employment of that part of the Forces on that service, is no longer required.
Territorial limits of service of Military Forces.
“50c.—(1.) Subject to this section, members of the Military Forces may be required to serve either within or beyond the territorial limits of Australia.
“(2.) A member of a part of the Citizen Military Forces specified in paragraph (b) or (c) of sub-section (2.) of section thirty-two a of this Act shall not be required to serve beyond the territorial limits of Australia unless he undertakes, voluntarily, so to serve.
“(3.) A member who, by writing under his hand, has undertaken to serve beyond the territorial limits of Australia whenever required so to serve is, until his service is lawfully terminated, bound so to serve whenever required so to serve.
“(4.) For the purpose of this section, service while on a voyage by sea or by air between the territorial limits of the Commonwealth and those of a Territory of the Commonwealth that does not form part of the Commonwealth shall be deemed to be service within the territorial limits of Australia.
Citizen Military Forces to be returned to districts.
“50d. Where any part of the Citizen Military Forces is employed on continuous full time military service, it shall, forthwith, after it ceases to be so employed, be returned to the locality of the Command or Military District to which it belongs.”.
Protection of States from domestic violence.
24. Section fifty-one of the Principal Act is amended—
(a) by inserting after the words “Permanent Forces” the words “(other than Reserve Forces)”;
(b) by omitting the words “ such of the Citizen Forces ” and inserting in their stead the words “ such of the Reserve Forces and the Citizen Forces ”; and
(c) by omitting from the proviso to that section the words “Citizen Forces of the Commonwealth” and inserting in their stead the words “Reserve Forces or the Citizen Forces”.
Repeal of ss. 52 and 53.
25. Sections fifty-two and fifty-three of the Principal Act are repealed.
26. Section fifty-four a of the Principal Act is repealed and the following section inserted in its stead:—
Military forces serving outside Australia.
“54. Members of the Military Forces, whether on war service or not, white—
(a) serving beyond the territorial limits of Australia;
(b) on their way from Australia for the purpose of so serving; or
(c) on their way to Australia after so serving or after war service,
shall be deemed to be on war service and are subject to the Army Act with such modifications and adaptations as are prescribed.”.
27. Section seventy-six of the Principal Act is repealed and the following section inserted in its stead:—
Refusal to take oath.
“76. A man who is liable to enlist for service in the Citizen Forces shall not refuse or neglect to take an oath in accordance with the appropriate form set out in the Second Schedule to this Act when tendered to him by a Justice of the Peace or by an officer.
Penalty: Imprisonment for six months.”.
28. Section seventy-eight of the Principal Act is repealed and the following section inserted in its stead:—
Absence for more than seven days deemed to be desertion.
“78. Where—
(a) a member of a Reserve Force, having been called out for continuous full time naval, military or air-force service and required so to serve;
(b) a member of the Citizen Forces, having been required to serve in pursuance of a proclamation under Part III. of this Act; or
(c) a person, having been required to serve in pursuance of Part IV. of this Act,
absents himself, without leave, from the unit or place at which he is required to be present, for a longer period than seven days, he shall be deemed to be a deserter and is liable to the punishment provided by the Naval Discipline Act, this Act or the Air Force Act, as the case may be.”.
Unauthorized use, possession or supply of uniforms and emblems.
29. Section eighty-three of the Principal Act is amended by inserting in sub-section (2.), after the words “in time of war”, the words “or in time of defence emergency”.
Certain officers may punish.
30. Section one hundred and eight of the Principal Act is amended—
(a) by omitting from paragraph (a) of sub-section (1.) the words “Five pounds” and inserting in their stead the words “ Twenty pounds ”;
(b) by omitting from paragraph (c) of that sub-section the words “where the member is a member of the Permanent Forces” and inserting in their stead the words “ where the member is employed on continuous full time naval, military or air-force service; and
(c) by omitting from paragraph (d) of that sub-section the words “where the member is a member of the Citizen Forces” and inserting in their stead the words “where the member is not employed on continuous full time naval, military or air-force service ”.
Power to arrest and detain in military custody.
31. Section one hundred and thirteen of the Principal Act is amended by omitting the words “Citizen Forces” and inserting in their stead the words “Reserve Forces or the Citizen Forces”.
Employer not to prevent employee from serving.
32. Section one hundred and eighteen a of the Principal Act is amended by adding at the end thereof the following sub-section:—
“(6.) This section does not apply in relation to personal service required of a person under Part III. of this Act if the person is a member, and the service is Defence service, within the meaning of Part XII. of this Act.”.
33.—(1.) After section one hundred and twenty-three b of the Principal Act the following sections are inserted:—
Affirmation in lieu of oath.
“123ba.—(1.) Where, under this Act, a person is required to take an oath in accordance with the appropriate form set out in the Second Schedule to this Act and that person conscientiously objects to take an oath, he may make an affirmation in accordance with the appropriate form set out in that Schedule instead of taking an oath.
“(2.) An affirmation so made has the same force and effect and entails the same consequences as the taking of the oath.
Female members.
“123bb. The regulations may provide that specified provisions of this Act do not apply to or in relation to female members of the Military Forces or that provisions of this Act do so apply subject to such modifications and adaptations as are provided by the regulations.
Modifications of applied provisions.
“123bc. Where by this Act it is provided that provisions of this Act or of the Army Act apply or may be applied subject to such modifications as are provided by the regulations, the regulations may make provisions in addition to or in substitution for any of the provisions that may be so modified.”.
(2.) It is hereby declared that the Defence Act 1903, or that Act as amended, in so far as it enacted that provisions of that Act, or of that Act as amended, or of any other law, applied, or might be applied, subject to such modifications as were provided by the regulations, authorized the making of regulations making provisions in addition to, or in substitution for, any of the provisions that might be so modified.
Regulations.
34. Section one hundred and twenty-four of the Principal Act is amended by omitting paragraph (b) of sub-section (1.).
35. After Part XI. of the Principal Act the following Part is inserted:—
“Part XII.—Protection in Relation to Civil Employment.
Interpretation.
“125.—(1.) In this Part, unless the contrary intention appears—
‘authority of the Crown’ means an authority constituted by or under a law of the Commonwealth, a State or a Territory of the Commonwealth;
‘contract of employment’ includes a contract of apprenticeship;
‘Defence service’, in relation to a member, means full-time service with the Reserve Forces or the Citizen Forces and includes full-time training prescribed or provided for by regulations under this Act, the Naval Defence
Act 1910–1964 or the Air Force Act 1923–1964, but does not include service rendered by virtue of an undertaking voluntarily made and accepted under this Act or either of those Acts;
‘member’ means a person who is, or has been, a member of the Reserve Forces or the Citizen Forces, but does not include a person referred to in paragraph (b) or (c) of sub-section (2.) of section thirty-two a of this Act;
‘period of absence on Defence service ‘, in relation to a member, means a period of absence from work or employment for the purpose of performing Defence service and, where the member resumes work or is reinstated in employment in accordance with this Part, includes the period from the completion of his period of Defence service until he so resumes work or is so reinstated in employment, as the case may be;
‘service tribunal’ means a court-martial and includes an officer of the Defence Force exercising jurisdiction summarily in respect of offences committed by members of the Defence Force.
“(2.) Where a member is required to report for full-time duty with the Reserve Forces or the Citizen Forces, the member shall, for the purposes of this Part, other than paragraph (a) of sub-section (6.) of section one hundred and thirty-two of this Act, be deemed to be performing Defence service during the time spent in travelling from the place where he resides to the place where he is to report for full-time duty.
Crown to be bound.
“126.—(1.) This Part binds the Crown in right of the Commonwealth or a State.
“(2.) Nothing in this Part shall be taken to subject the Crown in right of the Commonwealth or a State or an authority of the Crown to liability to be prosecuted for an offence.
Employer not to hinder a member from serving.
“127. An employer of a member shall not hinder or prevent the member from becoming a member of, or serving with, the Reserve Forces or the Citizen Forces.
Penalty: One hundred pounds.
Employer not to penalize member.
“128.—(1.) An employer of a member shall not penalise the member, or prejudice him in his employment, by reason that he is a member, whether by reducing his salary or wages, dismissing him from his employment or in any other way.
Penalty: One hundred pounds.
“(2.) In any proceedings for an offence against the last preceding sub-section, the burden is upon the employer to prove that a member proved to have been penalised or prejudiced in his employment was so penalised or prejudiced for some reason other than the reason alleged in the charge.
Leave to member during period of defence service.
“129. Where an employer of a member is required to allow annual or periodical holidays or leave to the member, the employer shall not, except at the request of the member, allow the holidays or leave at times comprised within any period of absence on Defence service of the member, but nothing in this section deprives a member of any right to any holidays or leave to which he would otherwise have been entitled.
Penalty: Fifty pounds.
Contract of employment not to terminate.
“130.—(1.) Subject to this section, where—
(a) a member is employed under a contract of employment immediately before commencing a period of Defence service; and
(b) in the case of a member who is employed under a contract of employment other than a contract of apprenticeship—has been so employed for not less than thirty days,
the contract shall not be, or be deemed to be, terminated by reason of the member’s absence from work during his period of absence on Defence service, but the contract—
(c) is suspended from the commencement of the period of absence on Defence service; and
(d) unless earlier terminated, ceases to be suspended at the expiration of the period of absence on Defence service.
“(2.) Nothing in the last preceding sub-section renders the employer under the contract of employment liable to pay the member for any time during his period of absence on Defence service.
“(3.) Sub-section (1.) of this section does not prevent the termination of a contract of apprenticeship if the Minister consents.
“(4.) Sub-section (1.) of this section does not prevent the termination of a contract of employment if the member, having completed a period of Defence service, does not apply to resume work under the contract within a period that the Minister, upon the application of the employer under the contract, determines to be a period within which the member could reasonably have been expected to have so applied.
“(5.) A period during which a contract of apprenticeship is suspended under sub-section (1.) of this section shall, except as the Minister otherwise directs, be deemed to be a period of work under the contract for the purpose of determining the date on which the member shall be deemed to have completed the period of employment under the contract.
“(6.) Except as otherwise provided by this Part or, in the case of a contract of apprenticeship, as the Minister otherwise
directs, a period during which a contract of employment is suspended under sub-section (1.) of this section shall be deemed not to be a period of employment under the contract.
Resumption or reinstatement after Defence service.
“131.—(1.) Where a member referred to in the last preceding section completes a period of Defence service, he may, as soon as is reasonably practicable after so doing—
(a) if his contract of employment has not been terminated, apply to the person (in this section called ‘ the employer’) who is the employer under that contract to resume work; or
(b) if his contract of employment has been terminated by reason of a change in the ownership of the business, undertaking or service in which the member was employed under the contract, apply to the person (in this section also called ‘ the employer’)—
(i) who is for the time being carrying on that business, undertaking or service; or
(ii) who is for the time being carrying on a business, undertaking or service with which has been amalgamated, or in which is comprised, that business, undertaking or service,
to be reinstated in employment.
“(2.) The employer shall, upon the member so applying, or as soon thereafter as is reasonably practicable, permit the member to resume work, or reinstate the member in employment, in the occupation in which the member was employed immediately before the commencement of the period of Defence service and under conditions not less favourable to the member than those that would have been applicable to the member in that occupation if he had not been absent, including any increase of remuneration to which the member would have become entitled if he had not been absent.
Penalty: One hundred pounds.
“(3.) In any proceedings for an offence against the last preceding sub-section, it is a defence for the employer to prove—
(a) that he agreed to the member resuming work or being reinstated in employment, but the member failed, without reasonable excuse, to present himself at the time and place agreed upon;
(b) that, by reason of a change of circumstances since the member was last employed (other than the employment of some other person to replace the member), it was not within the power of the employer, or was not reasonable or practicable, to permit the member to resume work or to reinstate the member in employment; or
(c) that, by reason of a change of circumstances since the member was last employed (other than the employment of some other person to replace the member), it was not reasonable or practicable to permit the member to resume work, or to reinstate the member in employment, in accordance with the last preceding sub-section, but that the employer had offered to employ the member in an occupation, and under conditions, that were the most favourable that it was reasonable or practicable to offer him.
Rights of member after resumption, &c.
“132.—(1.) For the purpose of determining the rights of a member who has resumed work, or been reinstated in employment, in accordance with this Part after a period of absence on Defence service, and, where applicable, of the dependants of the member, in respect of—
(a) annual leave for recreation;
(b) leave on the ground of illness;
(c) long service leave or pay in lieu of long service leave (including pay to dependants on the death of the member); and
(d) superannuation or pension (whether for the member or for his dependants),
the succeeding provisions of this section apply.
“(2.) Where a member has resumed work in accordance with the last preceding section, the continuity of the employment shall be deemed not to have been broken by the period of absence on Defence service.
“(3.) Where a member has been reinstated in employment in accordance with the last preceding section—
(a) the period of employment under the contract of employment that was terminated during his period of absence on Defence service shall be deemed to have been served under the contract of employment entered into on the member’s reinstatement in employment; and
(b) the continuity of that period of employment with the period of employment that commenced on reinstatement in employment shall be deemed not to have been broken by the period of absence on Defence service.
“(4.) Subject to this section, the period of absence on Defence service shall be deemed to be service in the employment.
“(5.) Subject to this section, where rights in respect of a benefit referred to in paragraph (a), (b) or (c) of sub-section (1.) of this section are dependent upon a number of shifts worked or attendances for work or both, shifts lost or non-attendances for work during the period of absence on Defence service shall be deemed to be shifts worked or attendances for work, as the case may be.
“(6.) The last two preceding sub-sections—
(a) do not apply, for the purpose of determining rights in respect of a benefit referred to in paragraph (a) or (b) of sub-section (1.) of this section, in relation to any part of the period of absence on Defence service during which the member was performing Defence service, other than training referred to in the definition of ‘Defence service’ in sub-section (1.) of section one hundred and twenty-five of this Act; and
(b) do not apply, in relation to the period of absence on Defence service, if, within a period after the member resumes work or is reinstated in employment equal to the period of absence on Defence service, the member resigns from or abandons the employment or is dismissed from the employment in circumstances justifying his dismissal without notice.
“(7.) Where the member—
(a) is required to make periodic contributions in respect of a benefit referred to in paragraph (d) of sub-section (1.) of this section; and
(b) does not, during or within one month after the expiration of the period of absence on Defence service, make the contributions that he would have been required to make if he had not been absent during that period,
sub-sections (4.) and (5.) of this section do not apply, for the purpose of determining rights in respect of that benefit, in relation to that period.
“(8.) Where the member is, during the period of absence on Defence service—
(a) absent on leave exceeding seven days;
(b) absent without leave or a deserter; or
(c) unavailable for duty by reason of proceedings against him for an offence against any law or by reason of a sentence of a court or of a service tribunal,
sub-sections (4.) and (5.) of this section do not apply, for the purpose of determining rights in respect of a benefit referred to in paragraph (a), (b) or (c) of sub-section (1.) of this section, in relation to the period of absence, with or without leave, of desertion or of unavailability for duty.
Termination of employment after resumption, &c.
“133.—(1.) Where an employer has, in accordance with this Part, permitted a member to resume work or reinstated a member in employment after a period of absence on Defence service, the employer shall not, within a period after the member resumes
work or is reinstated in employment equal to the period of absence, without reasonable cause, terminate the employment of the member or vary it by employing the member in an occupation, or under conditions, less favourable to the member than the occupation in which, or the conditions under which, the member was employed when he resumed work or was reinstated in employment.
Penalty: One hundred pounds.
“(2.) In any proceedings for an offence against the last preceding sub-section, the burden is upon the employer to prove that he had reasonable cause for terminating or varying the employment.
“(3.) This section does not apply in relation to a member employed under a contract of apprenticeship.
Penalty may be paid to member.
“134. Where an employer is convicted of an offence against sub-section (1.) of section one hundred and twenty-eight, section one hundred and twenty-nine, sub-section (2.) of section one hundred and thirty-one or sub-section (1.) of section one hundred and thirty-three, of this Act with respect to a member—
(a) the court may order that the whole or a part of the fine imposed on the employer shall be paid to the member; and
(b) whether or not an order is made under the last preceding paragraph, the court may order that the employer shall pay to the member such compensation as the court thinks reasonable.
Special civil remedy against the Crown.
“135.—(1.) Where a member considers that the Crown (whether in right of the Commonwealth or a State) or an authority of the Crown has failed to comply with a provision of this Part requiring the member to be permitted to resume work, or to be reinstated in employment, under the conditions prescribed by this Part or prohibiting the termination or variation of the member’s employment, the member may apply to a court of summary jurisdiction, constituted by a Police, Stipendiary or Special Magistrate, for compensation.
“(2.) The court shall hear the application and, if it finds that there has been a failure to comply with any provision referred to in the last preceding sub-section, the court may order that the Crown or the authority of the Crown shall pay to the member such amount by way of compensation as the court thinks reasonable.
“(3.) Proceedings may be taken upon an order under this section as if the order were a judgment or order of the court in favour of the member.
“(4.) A court referred to in sub-section (1.) of this section, being a court of a State, is hereby invested with federal jurisdiction to hear and determine an application under this section.
“(5.) Jurisdiction is hereby conferred on a court referred to in sub-section (1.) of this section, being a court of a Territory of the Commonwealth, to hear and determine an application under this section.
“(6.) The regulations may make provision with respect to the practice and procedure of a court referred to in sub-section (1.) of this section in relation to applications under this section.
Delegation by the Minister.
“136.—(1.) The Minister may, either generally or in relation to a matter or a class of matters and either in relation to the whole of the Commonwealth or to a State or part of the Commonwealth, by writing under his hand, delegate all or any of his powers and functions under this Part, except this power of delegation.
“(2.) A power or function so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.
“(3.) A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Minister.”.
Military College.
36. Section one hundred and forty-seven of the Principal Act is amended by omitting from sub-section (1.) the words “all arms of”.
37. Sections one hundred and forty-seven a and one hundred and forty-seven b of the Principal Act are repealed and the following section is inserted in their stead:—
Admission of students, &c.
“147a.—(1.) The regulations may make provision for or in relation to—
(a) the admission to the Military College or any other military instructional institution of persons, including persons who are not British subjects or are not ordinarily resident in Australia, for instruction and training;
(b) the ranks and status of students at a military instructional institution;
(c) the instruction, training, conditions of service, discipline, discharge and removal of students at a military instructional institution;
(d) the organization and administration of the Military College and other military instructional institutions; and
(e) the conditions of service of members employed in connexion with the Military College or any other military instructional institution.
“(2.) The regulations may make different provisions with respect to different classes of persons undergoing instruction at the Military College or any other military instructional institution and may provide that specified provisions of this Act do not apply to or in relation to students at the Military College or other military instructional institution or do so apply subject to such modifications and adaptations as are provided by the regulations.”.
Appointment of officers.
38. Section one hundred and forty-eight of the Principal Act is amended by inserting in paragraph (b) of sub-section (2.), after the words “ in time of war ”, the words “ or on active service ”.
Second Schedule.
39. The Second and Third Schedules to the Principal Act are repealed and the following Schedule is inserted in their stead:—
“SECOND SCHEDULE.
Sections 37, 42 and 76.
Form of Oath on Enlistment.
I, , do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, as a soldier in the for the period , or until my service is sooner lawfully terminated, that I will resist Her enemies and that in all matters appertaining to my service I will faithfully discharge my duty according to law.
So help me God!
——
Section 123ba.
Form of Affirmation on Enlistment.
I, , do solemnly and sincerely promise and declare that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, as a soldier in the for the period , or until my service is sooner lawfully terminated, that I will resist Her enemies and that in all matters appertaining to my service I will faithfully discharge my duty according to law.”.
Saving, &c.
40.—(1.) Members of the Military Forces who are serving at the date of commencement of this Act shall continue to serve in accordance with the Principal Act as amended by this Act and the Permanent Military Forces and the Citizen Military Forces in existence immediately before the commencement of this Act shall be deemed to have been organized in accordance with section thirty-three of the Principal Act as amended by this Act.
(2.) An officer or soldier serving in the Regular Army Special Reserve immediately before the date of commencement of this Act shall be deemed to have been duly appointed to, or enlisted in, the Regular Army Supplement, and the provisions of the Principal Act as amended by this Act apply to and in relation to him and his service accordingly.
(3.) All regulations made under the Principal Act that were in force immediately before the date of commencement of this Act continue in force except in so far as they are inconsistent with the Principal Act as amended by this Act, but any such regulation may be amended or repealed by regulations under the Principal Act as amended by this Act.
(4.) Any reference in the regulations continued in force by the last preceding sub-section to the Regular Army Special Reserve shall be read as a reference to the Regular Army Supplement.
Termination of service in certain cases.
41.—(1.) Where a member of the Military Forces serving at the date of commencement of this Act—
(a) has not voluntarily agreed to serve beyond the territorial limits of Australia whenever required so to serve; and
(b) has, within thirty days after the date of commencement of this Act, by writing under his hand addressed to his commanding officer—
(i) stated that he is unwilling to serve beyond the territorial limits of Australia whenever required so to serve; and
(ii) applied, on that account, to resign his military office or to be discharged,
his resignation shall be accepted or he shall be discharged, as the case requires, with all convenient speed.
(2.) Where a member of the Citizen Military Forces serving at the date of commencement of this Act has, within thirty days after that date, by writing under his hand addressed to his commanding officer—
(a) stated that he is unwilling to be liable to be called out for continuous service in time of defence emergency; and
(b) applied, on that account, to resign his military office or to be discharged,
his resignation shall be accepted or he shall be discharged, as the case requires, with all convenient speed.