Defence Amendment Act 1979

No. 132 of 1979

An Act to amend the Defence Act 1903, and for related purposes.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

PART I—PRELIMINARY

Short title, &c.

1. (1) This Act may be cited as the Defence Amendment Act 1979.

(2) The Defence Act 1903 is in this Act referred to as the Principal Act.

Commencement

2. (1) Subject to sub-sections (2) and (3), this Act shall come into operation on the day on which it receives the Royal Assent.

(2) Sub-section 6(1), section 9 and Part IV shall come into operation on 1 January 1982, or such later date as, before 1 January 1982, is fixed by Proclamation.

(3) Section 7 shall come into operation if, and only if, section 53 of the Defence Force Re-organization Act 1975 does not come into operation on or before the day on which this Act receives the Royal Assent.

PART II—AMENDMENTS OF PRINCIPAL ACT

Remuneration of chiefs of staff

3. (1) Section 9b of the Principal Act is amended—

(a) by omitting from sub-section (1) all the words after “Remuneration Tribunal”; and

(b) by omitting sub-section (2) and substituting the following sub-section:

“(2) An officer who is a chief of staff shall be paid such allowances as are fixed by determination under section 58b.”.

(2) Subject to section 14 of this Act, regulations in force at the commencement of this section for the purposes of sub-section 9b(2) of the Principal Act shall continue in full force and effect as if the amendment made by sub-section (1) of this section had not been made and may, subject to the Remuneration Tribunals Act 1973, be amended or repealed by interim determinations made under section 12 of this Act.

4. After section 9b of the Principal Act the following section is inserted:

Acting chiefs of staff

“9c. (1) The Governor-General may appoint an officer who is eligible for appointment to the office of Chief of Defence Force Staff or an office of chief of staff of an arm of the Defence Force to act in that office—

(a) during a vacancy in that office; or

(b) during any period, or during all periods, when the holder of that office is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office,

but an officer appointed to act during a vacancy shall not continue so to act for more than 12 months.

“(2) An appointment of an officer under sub-section (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

 

“(3) The Governor-General may—

(a) determine the terms and conditions of appointment, including remuneration and allowances, of an officer appointed under sub-section (1); and

(b) at any time terminate such an appointment.

“(4) Where an officer is acting in an office in accordance with paragraph (1)(b) and that office becomes vacant while the officer is so acting, then, subject to sub-section (2), the officer may continue so to act until the Governor-General otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

“(5) While an officer is acting in an office in accordance with sub-section (1)—

(a) he has, and may exercise, all the powers and shall perform all the functions of that office under this Act or any other law; and

(b) he has, and may exercise, the powers (if any) exercisable by the holder of that office by virtue of a delegation to the holder of that office of powers under this Act or any other law.

“(6) The validity of anything done by an officer purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had ceased.”.

5. After section 58 of the Principal Act the following Part is inserted:

“PART IIIa—REMUNERATION, ALLOWANCES AND OTHER BENEFITS

Interpretation

“58a. In this Part, unless the contrary intention appears—

‘cadet’ means—

(a) an officer or cadet in the Australian Cadet Corps; or

(b) an officer, instructor or cadet in the Naval Reserve Cadets or the Air Training Corps;

‘determination’ means a determination made under section 58b;

‘member’ includes a person who has ceased to be a member, whether by reason of death or otherwise;

‘member of the family’, in relation to a member, includes a member of the household of the member and a dependant of the member;

‘remuneration’ means remuneration by way of salary, pay, allowances or otherwise.

Determination of certain conditions of service

“58b. (1) The Minister may, by instrument in writing, make determinations, not inconsistent with this Act, the Naval Defence Act 1910 or the Air Force Act 1923, providing for and in relation to—

(a) the remuneration of members or cadets;

(b) the payment of allowances or other pecuniary benefits, not being allowances or benefits by way of remuneration, to or in respect of members or cadets;

(c) the payment of allowances or other pecuniary benefits to or in respect of members of the families of members;

(d) leave of absence and long service leave of members;

(e) the provision of other benefits to or in respect of members, or to or in respect of members of the families of members; and

(f) the payment of allowances and expenses to or in respect of, and the provision of travelling facilities for, applicants for appointment or engagement as members in respect of attendance at an enlistment centre of the Defence Force or attendance for interview or examination.

“(2) Sub-section (1) does not authorize the making of a determination providing for or in relation to the payment to or in respect of a member, or to or in respect of a member of the family of a member, of a benefit in the nature of a pension.

“(3) A determination shall not be made providing for or in relation to—

(a) forfeiture, or assignment, of the whole or part of the remuneration of a member or cadet or of allowances or other pecuniary benefits referred to in paragraph (1)(b) or (c);

(b) deductions from the remuneration of a member or cadet or from allowances or other pecuniary benefits referred to in paragraph (1)(b) or (c);

(c) the suspension, variation or cancellation of allotments of remuneration made by a member; or

(d) the liability of a member, or of a member of the family of a member, to pay an amount to the Commonwealth.

“(4) A determination takes effect—

(a) on the day on which it is made; or

(b) where another day (which may be a day earlier than the day on which it is made) is specified for the purpose in the determination, on the day so specified.

“(5) A determination shall not be expressed to take effect on a day earlier than the day on which it is made in any case where, if the determination so took effect—

(a) the rights of a person (other than the Commonwealth) existing immediately before the last-mentioned day would be affected in a manner prejudicial to that person; or

(b) liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before that last-mentioned day,

and where, in a determination, any provision is made in contravention of this sub-section, that provision shall be void and of no effect.

“(6) The determinations made in each secular year (including determinations amending or revoking other determinations) shall be numbered in regular arithmetic series, beginning with the number 1, as nearly as possible in the order in which they are made.

“(7) A determination may, without prejudice to any other manner of citation, be cited by reference to its number and the secular year in which it was made.

“(8) The Minister shall cause to be published in the Gazette, in respect of each determination, notice of—

(a) the fact that the determination has been made; and

(b) the place or places where copies of the determination can be obtained.

 

“(9) In this section, a reference to this Act does not include a reference to the regulations.

Tabling, disallowance, &c., of determinations

“58c. (1) Subject to sub-section (2), sections 48 (other than paragraphs (1) (a) and (b) and sub-section (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to determinations as if, in those sections, references to regulations were references to determinations and references to a regulation were references to a provision of a determination.

“(2) Where—

(a) a provision (in this sub-section referred to as the ‘disallowed provision’) of a determination is disallowed, or is to be deemed to have been disallowed, under section 48 of the Acts Interpretation Act 1901 as applied by sub-section (1); and

(b) the disallowed provision amended or revoked another determination, or a provision of another determination, in force immediately before the disallowed provision took effect,

the disallowance revives that other determination, or that provision of that other determination, as the case may be, from and including the date of the disallowance, as if the disallowed provision had not been made.

“(3) Determinations shall not be deemed to be statutory rules within the meaning of the Statutory Rules Publication Act 1903.

Evidence

“58d.For the purposes of section 5 of the Evidence Act 1905, a determination shall be deemed to be an order made by a Minister.

Delegation

“58e. The regulations may make provision for and in relation to the delegation by the Minister of his power to make determinations with respect to such of the matters with respect to which determinations may be made as are specified in the regulations.”.

Australian Cadet corps

6. (1) Section 62 of the Principal Act is amended by omitting paragraphs (a) to (e) (inclusive) of sub-section (7) and substituting the following paragraphs:

“(a) the periods and conditions of service of members, other than conditions of service with respect to which determinations under section 58b may be made; and

(b) the promotion of members.”.

(2) Section 62 of the Principal Act is amended by inserting in subsection (9) “, to any determinations in force under section 58b” after “regulations”.

Stoppage of pay in certain cases

7. Section 119 of the Principal Act is amended by inserting “or as provided by determination under section 58b” after “prescribed”.

Repeal of section 123e

8. Section 123e of the Principal Act is repealed.

 

Regulations

9. Section 124 of the Principal Act is amended—

(a) by omitting paragraphs (d), (da), (e) and (f) of sub-section (1) and substituting the following paragraphs:

“(b) forfeiture, or assignment, of the whole or part of the remuneration of a member or cadet or of allowances or other pecuniary benefits referred to in paragraph 58b(1)(b) or (c);

(c) deductions from the remuneration of a member or cadet or from allowances or other pecuniary benefits referred to in paragraph 58b(1)(b) or (c);

(d) the suspension, variation or cancellation of allotments of remuneration made by a member;

(e) the liability of a member or a person who has ceased to be a member (whether by reason of death or otherwise), or of a member of the family, or dependant, of a member or such a person, to pay an amount to the Commonwealth;”; and

(b) by adding at the end thereof the following sub-section:

“(4) In this section, ‘remuneration’ means remuneration by way of salary, pay, allowances or otherwise.”.

Formal amendments

10. The Principal Act is amended as set out in the Schedule to this Act.

PART III—INTERIM PROVISIONS

Interpretation

11. In this Part, unless the contrary intention appears—

“interim determination” means a determination made under section 12;

“interim period” means the period commencing on the commencement of this Part and ending immediately before the commencement of Part IV;

“relevant regulations” means—

(a) the Air Force Regulations;

(b) the Australian Military Regulations;

(c) the Cadet Forces Regulations;

(d) the Defence Force (Bounties and Gratuities) Regulations;

(e) the Defence Force (Furlough) Regulations;

(f) the Defence Force (Reserves) (Financial) Regulations;

(g) the Defence Force (Salaries) Regulations;

(h) the Military Financial Regulations;

(j) the Naval Financial Regulations;

(k) the Naval Forces Regulations; and

(l) the Royal Military College Regulations,

as amended (including amended by interim determinations) and in force from time to time, being those regulations to the extent to which they relate to matters with respect to which determinations may be made under section 58b of the Defence Act 1903.

Interim determinations

12. (1) During the interim period, the Minister may, by instrument in writing, make determinations amending or repealing any relevant regulations.

(2) An interim determination shall not be made amending any relevant regulations if the regulations as amended by the interim determination would be inconsistent with the Defence Act 1903, the Naval Defence Act 1910 or the Air Force Act 1923.

(3) The power to make interim determinations conferred on the Minister by sub-section (1) shall not be taken to derogate from the power to make regulations conferred on the Governor-General by the Defence Act 1903, the Naval Defence Act 1910 or the Air Force Act 1923.

Tabling, disallowance, &c., of interim determinations

13. (1) Sections 48, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to interim determinations as if, in those sections, references to regulations were references to interim determinations and references to a regulation were references to a provision of an interim determination.

(2) For the purposes of the Statutory Rules Publication Act 1903, interim determinations shall be deemed to be statutory rules.

Determinations prevail over inconsistent regulations

14. (1) Where a provision of a determination under section 58b of the Defence Act 1903 is inconsistent with any relevant regulations—

(a) the provision of the determination shall prevail; and

(b) subject to sub-section (2), those regulations shall, to the extent of the inconsistency, cease to have effect and, for the purposes of section 8 of the Acts Interpretation Act 1901, be deemed to have been repealed by this Act on the date on which the provision of the determination takes effect.

(2) Where—

(a) a provision (in this sub-section referred to as the “disallowed provision”) of a determination under section 58b of the Defence Act 1903 is disallowed, or is to be deemed to have been disallowed, under section 48 of the Acts Interpretation Act 1901 as applied by sub-section 58c(1) of the Defence Act 1903; and

(b) the disallowed provision was inconsistent with any relevant regulations in force immediately before the date on which the disallowed provision took effect,

the disallowance revives those regulations as so in force, from and including the date of the disallowance, as if the disallowed provision had not been made.

PART IV—MISCELLANEOUS

Interpretation

15. In this Part, “relevant date” means the date of commencement of this Part.

Termination of Part III

16. On the relevant date, Part III ceases to have effect and shall be deemed, for the purposes of section 8 of the Acts Interpretation Act 1901, to have been repealed on that relevant date by an Act other than this Act.

 

Saving

17. Notwithstanding the amendments made by sub-section 6(1) and section 9, the regulations that were in force under the Defence Act 1903 immediately before the relevant date (including any such regulations as amended by determinations made under section 12 of this Act) and any determinations, directions or approvals that were in force under those regulations immediately before the relevant date shall, to the extent that they are not inconsistent with the Defence Act 1903 as in force on the relevant date, continue in force on and after the relevant date as if those regulations had been made under that Act as so in force.

————

SCHEDULE                                            Section 10

FORMAL AMENDMENTS

Provision Amended	Omit—	Substitute—
Sub-section 4 (1) (definition of “Air Force Act”)	the day on which the Air Force Act 1939 came into operation	15 December 1939
	section five of the Air Force Act 1923-1956	section 5 of the Air Force Act 1923
Sub-section 4(1) (definition of “Army Act”)	the day on which the Defence Act 1956 came into operation	29 October 1956
Sub-section 4(1) (definition of “Officer”)	1910-1975.......................................	1910
Sub-section 4(1) (definition of “The Naval Discipline Act”)	1910-1964.......................................	1910
Section 5...........................	1910-1949.......................................	1910
	1923-1950.......................................	1923
Sub-section 9b(3).............	1973-1974.......................................	1973
Sub-section 10(2).............	the last preceding sub-section	sub-section (1)
Sub-section 10(4).............	the commencement of this sub-section	9 February 1976
Section 11.........................	three.................................................	3

 

SCHEDULE—continued

Provision Amended	Omit—	Substitute—
Section 16................................	Three.......................................................................	3
Section 27................................	two..........................................................................	2
Section 31................................	two..........................................................................	2
Sub-section 32(1)...................	four.........................................................................	4
Sub-section 32a(1).................	two..........................................................................	2
Sub-section 40(1)...................	three........................................................................	3
Sub-section 40(2)...................	the last preceding sub-section............................	sub-section (1)
Sub-section 41(1)...................	three........................................................................	3
Sub-section 41(2)...................	the last preceding sub-section............................	sub-section (1)
Sub-section 45(3)...................	the next succeeding sub-section and the next two succeeding sections...................................................................	sub-section (4) and sections 46 and 47
Sub-section 46(2)...................	the last preceding sub-section............................	sub-section (1)
Sub-section 46(3)...................	twelve.....................................................................	12
	the last preceding sub-section............................	sub-section (2)
Sub-section 46(4)...................	the last preceding sub-section............................	sub-section (3)
Sub-section 46(4a).................	the last two preceding sub-sections sub-section (4) of the last preceding section	sub-sections (3) and (4) sub-section 45 (4)
Sub-section 47(2)...................	the last preceding sub-section............................	sub-section (1)
Section 48................................	either of the last two preceding sections...........	section 46 or 47
Sub-section 50(1)...................	the next two succeeding sections.......................	sections 50a and 50b
Sub-section 50a(4).................	ten...........................................................................	10
Section 50b..............................	the last preceding section....................................	section 50a
Section 55................................	not exceeding Forty dollars................................	not exceeding $40
	exceeds Forty dollars...........................................	exceeds $40
Section 59................................	six............................................................................	6
	eighteen..................................................................	18
	sixty........................................................................	60
	the next succeeding section................................	section 60
Sub-section 60(1)...................	the last preceding section....................................	section 59
Sub-section 60(2)...................	the next succeeding sub-section........................	sub-section (3)
Sub-section 60(3)...................	the last preceding sub-section............................	sub-section (2)
	eighteen years and upwards, but under thirty-five years, who are unmarried	18 years and upwards, but under 35 years, who are unmarried
	thirty-five years and upwards but under forty-five years, who are unmarried	35 years and upwards, but under 45 years, who are unmarried
	eighteen years and upwards but under thirty-five years, who are married	18 years and upwards, but under 35 years, who are married
	thirty-five years and upwards, but under forty-five years, who are married	35 years and upwards, but under 45 years, who are married
	forty-five years and upwards, but under sixty years	45 years and upwards, but under 60 years
Sub-section 60(4)...................	the last preceding sub-section............................	sub-section (3)
Sub-section 60(5)...................	ten...........................................................................	10
Paragraph 61(1)(b).................	the last preceding section ...................................	section 60
Sub-section 61a(2).................	Forty dollars..........................................................	$40
Paragraph 61c(b)...................	seventeen...............................................................	17
Paragraph 61c(c)....................	one..........................................................................	1
	eighteen..................................................................	18
	twenty.....................................................................	20
Sub-section 69(2)...................	Forty dollars..........................................................	$40

 

SCHEDULE—continued

Provision Amended	Omit—	Substitute—
Section 72..................................	One hundred dollars ........................................	$100
Sub-section 73f(1).....................	any of the six last preceding sections	section 73, 73a, 73b, 73c,73d, or 73e
Sub-section 73f(2).....................	any of the six last preceding sections	section 73, 73a, 73b, 73c,73d or 73e
Paragraph 73f(2)(a)...................	Two hundred dollars .......................................	$200
	six ...................................................................	6
	Two thousand dollars.......................................	$2,000
	six ...................................................................	6
Sub-section 74(1).......................	twelve...............................................................	12
	Forty dollars.....................................................	$40
Sub-section 74(2).......................	One hundred dollars ........................................	$100
Section 75..................................	One hundred dollars.........................................	$100
	six ...................................................................	6
Section 77..................................	One hundred dollars ........................................	$100
	six ...................................................................	6
Section 78..................................	seven................................................................	7
Sub-section 79(1).......................	Forty dollars.....................................................	$40
	three.................................................................	3
Section 80..................................	Twenty dollars.................................................	$20
Sub-section 80a(1)....................	Two hundred dollars .......................................	$200
	six....................................................................	6
Section 81..................................	Forty dollars.....................................................	$40
Sub-section 82(1).......................	Two hundred dollars........................................	$200
	six ...................................................................	6
Sub-section 82(2).......................	One hundred dollars ........................................	$100
Sub-section 82(3).......................	Forty dollars.....................................................	$40
Sub-section 83(1).......................	One hundred dollars ........................................	$100
Sub-section 83(4).......................	One hundred dollars ........................................	$100
	Forty dollars.....................................................	$40
Sub-section 87(1).......................	the preceding section........................................	section 86
Paragraph 91(a)..........................	Forty dollars.....................................................	$40
	two ..................................................................	2
Section 92..................................	twenty-one.......................................................	21
Section 95..................................	Two hundred dollars .......................................	$200
Sub-section 99(3).......................	six ...................................................................	6
Sub-section 103(1).....................	three ................................................................	3
Sub-section 103(2).....................	three.................................................................	3
Sub-section 103(3).....................	member or within six ......................................	member or within 6
	service or within six.........................................	service or within 6
Paragraph 108(1)(a)...................	Forty dollars.....................................................	$40
Sub-paragraph 108(1)(b)(i)
...................................................	Forty dollars.....................................................	$40
Sub-paragraph 108(1)(b)(ii)
...................................................	Ten dollars ......................................................	$10
Sub-paragraph 108(1)(c)(i)
...................................................	Fourteen ..........................................................	14
Sub-paragraph 108(1)(c)(ii)
...................................................	twenty-one.......................................................	21
	seven................................................................	7
Sub-section 109(l)......................	one ..................................................................	1
Section 118................................	six....................................................................	6
Sub-section 118a(1)..................	Two hundred dollars .......................................	$200
Sub-section 118a(2)..................	Two hundred dollars .......................................	$200
Sub-section 118a(6)..................	Part III of this Act ...........................................	Part III
Section 123aa............................	Forty dollars.....................................................	$40
Paragraph 124(1)(qf).................	twenty-one.......................................................	21

 

SCHEDULE—continued

Provision Amended	Omit—	Substitute—
Paragraph 124(1)(r).......	Part VI of this Act..........................	Part VI
Paragraph 124(1)(t)........	Defence Forces as provided in Part III Division 4	Army as provided in Division 4 of Part III
Sub-section 124(3)........	paragraphs (qb), (qba), (qe) and(qf) of sub-section (1) the last preceding sub-section.........	paragraphs (1)(qb), (qba), (qe) and (qf) sub-section (2)
Section 148a.................	twenty-seven..................................	27