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2000
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
DEFENCE RESERVE
SERVICE
(PROTECTION) BILL
2000
EXPLANATORY
MEMORANDUM
(Circulated by the authority of
the Minister for Veterans’ Affairs,
the Hon.
Bruce Scott
MP)
ISBN: 0642 453454
Defence Reserve Service (Protection) Bill
2000
The Defence Service (Protection) Bill 2000 provides for
the protection of the Reserves in their employment and education, to facilitate
their return to civil life and for related purposes. The Bill will set out the
entitlements and prohibitions that apply in relation to people who are rendering
or have rendered defence service as members of the Reserves. In some cases, the
entitlements extend to their
dependants.
The Government has allocated $20m in the Financial Year
2000-01 for the Reserves enhancement initiatives contained in the Bill which
will fund initiatives such as:
• the Employer
Support Payment which is expected to cost approximately $8.9m in 2000-01. This
assumes an initial full-year annual cost of approximately $17.7m and a starting
operation of 1 January 2001;
• Defence Support
Reserve Committee enhancement is expected to cost
$0.681m;
• Communications and public awareness
strategies are expected to cost approximately $1.9m in
2000-01;
• Accreditation of reserve training in
accordance with the Australina Training Authority is expected to cost
approximately $4.8m in 2000-01;
• A swipe card
system for Reservists, to improve the efficiency of administration of the
Reserve, would cost approximately $1m;
• An
independent study to develop proposals to maximise the period of service
provided to Defence by individual Reservists is expected to cost approximately
$4.8m.
Defence Reserve Service
(Protection) Bill 2000
Part 1 contains introductory
matters:
1. Section 1 provides the the Act may be
cited as the Defence Reserve Service (Protection) Act
2000.
2. Section 2 provides for the
commencement of the Act on the 28th day after the day on which the
Act receives Royal Assent.
3. Section 3 provides
for an overview of the Act. The Act will provide for the
following:
• Entitlements and prohibitions that
apply in relation to people who are rendering, or have rendered , defence
service as members of the Reserves. In some cases, entitlements extend to their
dependants;
• The kinds of defence service
rendered by the member may determine the scope of the entitlements and
prohibitions available to him or her;
• Part 4
contains prohibitions against the conduct that discriminates against members in
their employment or other work. This Part applies to all types of defence
service;
• Part 5 sets out the consequences for
member’s employment if he or she was employed when he or she started to
render defence service. This Part will apply to all kinds of defence service
except for certain kinds of voluntary continuous full time
service;
• Part 6 protects members from having
their partnerships dissolved while the members are absent on defence
service;
• Part 7 will allow a member to re-enrol
in and resume a course that the member had to interrupt in order to undertake
continuous full time defence service (except for certain kinds of voluntary
continuous full time service);
• Part 8 will
postpone debts that a member (or his or her dependant) is liable to pay and
would otherwise fall due after the member starts rendering defence service as a
result of being called out. Interest however is payable by the member or
dependant on the postponed debts. Part 7 also stays proceedings in respect of
postponed debts;
• Part 9 deals with bankruptcy
of a member or his or dependant. It applies only if the member has rendered
service after being called out;
• Part 10 gives a
member who has rendered defence service after being called out access to loans
and guarantees to enable him or her to resume civilian life after returning from
that service;
• Part 11 deals with enforcement
and remedies;
• Part 12 deals with minor
miscellaneous matters.
4. Section 4 provides that
the act binds the Crown.
5. Subection 4(1)
provides that the Act binds the Crown in each of its
capacities.
6. Subsection (2) provides that in
particular, obligations that the Act imposes on employers or other persons are
imposed on the Crown just as they are imposed on every one
else.
7. Subsection (3) makes it clear that the
Crown is not liable to be prosecuted for an offence under the
Act.
8. Section 5 provides that the Criminal Code
applies to all offences against this Act. Chapter 2 of the Criminal Code sets
out the general principles of criminal
responsibility.
9. Section 6 provides that the
Act extends to every external Territory.
Part
2 provides all the definitions for the purposes of the
Act.
10. Section 7 is the interpretation
section. It defines such matters
as:
• “ADI” means an authorised
deposit taking institution that is a corporation that is an ADI for ther
purposes of the Banking Act 1959.
• “call out day” in relation to a
member means the day on which the member becomes liable to render continuous
full time service as a result of an order under section 50D, 51A, 51B or 51C of
the Defence Act 1903;
• “defence
service” means service (including training) in a part of the
Reserves;
• “employment” includes
appointment or employment by the Commonwealth, a State or a Territory or by an
authority of the Commonwealth, State or Territory, an apprenticeship,
traineeship arrangement full time, part time or casual work, but does not
include, work as a commission agent or work under a contract for
services;
• “land” includes buildings
and improvements on land, legal and equitable estates or interests in land any
company interest in land, right, power or privilege over or in relation to
land;
• “protected period” in
relation to a member who is rendering or has rendered defence service to which
Part 5 or Part 8 applies means the shorter of the following periods:
1. the period that begins immediately after the day on
which the member ceased to render the defence service and that is equal to the
length of that service;
2. the period of 12 months
beginning immediately after the day on which the member ceased to render that
service.
• “service chief” means the
Chief of Navy, Chief of Army or the Chief of Air
Force;
• “Reserves” has the same
meaning as in the Defence Act 1903.
11.
Section 8 also provides a definition of a member being “absent on defence
service”. It is during:
• any period which
the member is travelling from his or her residence to the place at which he or
she is required to report for defence
service;
• any period while he or she is
rendering defence service; and
• the period after
he or she has ceased to render that service until he or she resumes work or is
reinstated in employment under Part 4.
12.
Section 9 defines in detail “dependant” of a member who is rendering
continuous full time service as a result of an order under section 50D, 51A, 51B
or 51C of the Defence Act 1903. In essence it
means:
• if the member is a member of a couple
– the member’s partner;
• a person
who was wholly or partly dependant on the member for financial support
immediately before the member’s call out
day;
• a person who became or becomes wholly or
partly financially supported by the member while the member was or rendering
such service;
• a person who is wholly or partly
financially supported by a pension payable under the Veterans’
Entitlements Act 1986 because of the death or incapacity of a
member;
• if the member died while rendering such
service, the widow or widower of the member.
13. Subsection (2) provides that the expressions
member of a couple, partner, widow, widower, have the same meaning
in section 9 as in the Veterans’Entitlements Act
1986.
14. Section 10 provides for the meaning
of “contract of employment” in the context of the Act. It
includes a contract of apprenticeship and an appointment or employment of a
person under a law of the Commonwealth or a State or
Territory.
Part 3 outlines the Kinds of
Protection and benefits that apply to different kinds of defence service.
15. Section 11 includes a table which sets out
which Parts of the Act that apply in relation to which kinds of defence
service.
16. In table form, this section provides
that:
• Part 4 of the Act provides protection
against discrimination in respect of all kinds of defence
service;
• Part 5 provides employment protection
in respect of all kinds of defence service except for certain kinds of voluntary
continuous full time service;
• Part 6 provides
partnership protection in respect of all kinds of defence service except for
certain kinds of voluntary continuous full time
service;
• Part 7 provides education protection
in respect of all kinds of defence service except for certain kinds of voluntary
continuous full time service;
• Part 8 provides
financial liability protection in respect of continuous full time service
following a call out;
• Part 9 provides
bankruptcy protection in respect of continuous full time service following a
call out;
• Part 10 provides for loans and
guarantees in respect of continuous full time service following a call
out;
• Part 11 provides for enforcement of
remedies in respect of all kinds of defence
service;
• Part 12 provides for other matters in
respect of all kinds of defence service.
17.
Section 12 provides for Defence Service following a voluntary
undertaking. Parts 5, 6 and 7 do apply in relation to continuous full time
service that the member voluntarily undertook to render under subsection 32A(4)
of the Naval Defence Act 1910, subsection 50(3) of the Defence Act
1903 or subsection 4J (3) of the Air Force Act 1923, unless a service
chief has requested the member to give the undertaking on the basis that those
Parts would apply to the service and the member gave the undertaking on that
basis.
18. Subsection 12(2) provides that in deciding whether to request a member to give an undertaking on the basis outlined in subsection (1), the service chief must have regard to the following matters:
• The nature of the service to be rendered;
• The member’s military and civil skills and capabilities;
• The current needs of the Defence Force for the member’s skills and capabilities;
• The effect that rendering the service might have on the member’s employment and education (including the effect that it might have on third parties such as employers);
• Any other relevant matter.
19. Section 13 provides for Continuous full time service
following a call out. Parts 8, 9 and 10 apply only in relation to continuous
full time service that a member is rendering or has rendered as a result of an
order under section 50D, 51A, 51B or 51C of the Defence Act
1903.
20. Part 4 of the Act outlines
the protection against discrimination because of defence service.
21. Division 1 section 14, provides
the overview of the Part. The Part applies in relation to all types of defence
service. Essentially, the Part makes it unlawful to refuse to give work to a
person on the ground that the person is rendering, has rendered or might in the
future render defence service. A breach of the Part may be a criminal offence.
Breaches can also be redressed by civil means.
22.
Division 2 relates to Discrimination in
Employment
Section 15 provides that an employer
must not refuse or fail to employ another person because the person may
volunteer for defence service or is rendering defence service or is or may
become liable to render defence service or has previously rendered defence
service. A person who contravenes subsection (1) of this section is guilty of an
offence. The maximum penalty is 30 units. (Section 4AA of the Crimes Act 1914
sets out the current value of a penalty unit).
23.
Section 16 provides that an employer must not, for a prohibited reason, or for
any reasons that includes a prohibited
reason:
• change the terms and conditions of
employment of an employee to his or her
prejudice;
• discriminate against an employee in
his or her terms and conditions of
employment;
• dismiss an
employee.
24. Subsection (2) outlines what a
“prohibited reason” is in relation to conduct mentioned in
subsection (1). Conduct mentioned in subsection (1) is for a prohibited reason
if it is engaged in because the employee may volunteer to render defence service
or is rendering defence service or is or may become liable to render defence
service or has previously rendered defence
service.
25. A person who contravenes subsection
(1) is guilty of an offence attracting a maximum penalty of 30 units.
26. Section 17 provides that an employer must
not hinder or prevent a person in the employer’s employment from
volunteering to render defence service or rendering defence
service.
27. Subsection (2) provides that a
person who contravenes subsection (1) is guilty of an offence attracting a
penalty of 30 penalty units.
Division 3 relates to
“Discrimination in
Partnerships”
28. Section 18 provides
for refusing to offer a partnership to a person. Subsection (1) provides that a
person who proposes to form a partnership must not refuse or fail to invite
another person to become a partner in the partnership for a prohibited reason or
for reasons that include a prohibited reason.
29.
Subsection (2) provides that a person who is a partner in a partnership must not
refuse or fail to invite another person to become a partner in the partnership
for a prohibited reason or for reasons that include a prohibited reason.
“Prohibited reason” has the same meaning as in relation to section
16.
30. A person who contravenes subsection (1)
or (2) is guilty of an offence with a maximum penalty of 30
units.
31. Section 19 provides that a person who
is a partner in a partnership must not hinder or prevent another partner in the
partnership from volunteering to render defence service or rendering defence
service. A person who contravenes subsection (1) or (2) is guilty of an offence
attracting a maximum penalty of 30 penalty
units.
Division 4 relates to
“Discrimination against commission
agents”.
32. Section 20 provides that a
person must not refuse or fail to engage another person as a commission agent
for the reason or reasons that include the reason that, the other person, or an
officer or employee of the other person:
• may
volunteer to render defence service ;
• is
rendering defence service;
• is or may become
liable to render defence service;
• has
previously rendered defence service.
33. A person
who contravenes subsection (1) is guilty of an offence with a maximum penalty of
30 units.
34. Section 21 provides that a person
must not, for a prohibited reason, do or threaten to do either of the
following:
• discriminate against a commission
agent in relation to the terms and conditions of the contract for services that
the person enters into with the
agent;
• terminate the
contract.
35. Again, “prohibited
reason” has the same meaning as that discussed in relation to section 16
discussed above. A person who contravenes subsection (1) is guilty of an offence
with a maximum penalty of 30 units.
Division 5
relates to “Discrimination against
contractors”.
36. Section 22 provides
that a person must not refuse or fail to engage another person as a contractor
for the reason that or for reasons that include a reason, that the other person
is volunteering for defence service or is rendering defence service or is or may
become liable to render defence service or has previously rendered defence
service.
37. A person who contravenes subsection
(1) is guilty of an offence attracting a maximum penalty of 30
units.
38. Section 23 provides that a person must
not, for a prohibited reason or for reasons that include a prohibited reason do
or threaten to do either of the
following:
• discriminate against a contractor in
relation to the terms and conditions of the contract for services that the
person has entered in with the
contractor;
• terminate the contract for
services.
A person who contravenes subsection (1)
is guilty of an offence with a maximum penalty of 30
units
39. Conduct mentioned in subsection (1) as
being for a “prohibited reason” has the same meaning as in relation
to section 16.
Part 4 provides for Employment
Protection.
40. Division 1, section 24,
provides for an overview of the Part. This Part applies to all kinds of defence
service except certain kinds of voluntary continuous full time service. The Part
protects the status and entitlements, such as accrued leave, of members whose
defence service conflicts with their employment
obligations.
Division 2 relates to Leave during
Defence Service.
41. Subsection 25(1)
provides that the section applies if the member is employed under a contract of
employment or other arrangement that allows the member any type of leave whether
paid or unpaid.
42. Subsection (2) provides that
an employer must not require the member to take the leave concurrently while the
member is absent on defence service.
43.
Subsection (3) goes onto provide that the section does not apply to the extent
that the member agrees to take the leave concurrently with all or part of the
absence.
Division 3 provides for the effect of
defence service on a contract of
employment.
44. Subsection 26(1) makes it
clear that if a member was employed before starting to render defence service,
the contract is not terminated because of the member’s failure to perform
his or her duties under the contract while absent on defence service. Subsection
26(2) provides that the contract is suspended while the member is on defence
service, unless it is terminated earlier according to law.
45. Subsection 26(3) provides that a period
during which a contract of employment is suspended is taken not to be a period
of employment under the contract unless the Part provides otherwise.
46. Subsection (4) provides that a contract may
be terminated if the member does not apply to resume the employment under the
contract within 30 days after ceasing to render defence
service.
47. Section 27 provides for the
application by a member to resume employment after defence service.
Subsection (1) provides that a member covered by section 26 may apply to the
employer concerned to resume work under the contract. The application must be in
writing (unless the employer waives that
requirement).
48. Subsection 27(2) provides that
if the contract was terminated in accordance with law while the member was
absent on defence service but another employer is carrying
on:
• the business or undertaking in which
the member was employed under the contract;
or
• another business or undertaking which
includes that business or undertaking;
the member
may apply in writing to the new employer for reinstatement.
49. Subsection 27(3) provides that the member
must apply to the employer or new employer within 30 days after ceasing to
render the service.
50. Subsection 27(4) provides
that if an employee is reinstated in employment with a new employer, the
employment contract under which the member was previously employed is novated to
the new employer.
51. Section 28 requires an
employer to re-employ a member. As soon as reasonably practicable after
receiving an application under section 27, the employer
must:
• allow ther member to resume work, or
reinstate the member in employment in the same capacity in which the member was
employed immediately before the member started to render defence service;
and
• ensure that the member’s conditions
of employment (including remuneration) are at least as favourable as those that
would have applied to the member in that capacity but for the service.
52. Subsection 28(2) outlines the the
circumstances in which subsection (1) does not apply. These
are:
• he or she agreed to the resumption or
reinstatement but the member did not make himself or herself available for work
as agreed between them and did not have a reasonable excuse for doing so;
or
• because of changed circumstances since the
member was employed (except employing someone else to replace the member), it
was not within the employer’s power to allow the resumption or
reinstatement, or the employer offered to employ the member in a capacity and
under terms and conditions that were the most favourable that it was reasonably
practicable to offer the member.
Division 4 relates
to the Effect of Defence Service on particular entitlements of
members.
53. Section 29 provides that the
Division deals with determining the entitlements of a member or of someone else
arising because of the entitlements of a member, under a contract of employment
or otherwise after returning to work, in in relation to the
following:
• annual leave and leave
loadings;
• personal/carer’s leave or sick
leave family leave and other forms of
leave;
• long service leave or an amount in place
of long service leave;
• superannuation or
pension;
• parental leave, including maternity
leave and adoption leave;
• a prescribed
matter.
54. Section 30 provides for continuous
full time defence service. The section applies if a member resumes work or is
reinstated in employment under the Division after rendering continuous full time
defence service to which this Part applies. Part 3 sets out which kind of
defence service this Part applies to.
55.
Subsection 30(2) provides that the entitlements in relation to the
member’s employment in respect of the period of service must be no less
beneficial than they would have been if the member had been absent on leave
without pay from the employment during that
period.
56. Subsection 30(3) provides that the
continuity of a member’s employment is taken not to have been broken by
his or her absence on defence service.
57.
Section 31 outlines other defence service. This section applies if a
member resumes work, or is reinstated in employment under the Part after
rendering defence service other than continuous full time service.
58. Subsection 31(2) provides that if a member
resumes work, the period of absence is taken to have been paid service in the
employment and the continuity of the member’s employment is taken not to
have been broken by his or her absence on defence
service.
59. Subsection 31(3) provides that if
the member is reinstated in employment with a new
employer:
• the period of employment under
the suspended contract of employment is taken to have been served under the
contract of employment entered into on the reinstatement;
and
• the period of absence is taken to have been
paid serivce in the new employment; and
• the
continuity of the period of employment under the suspended contract of
employment with the period of employment that commenced on the reinstatement is
taken not to have been broken by the member’s absence on defence
service.
Division 5 relates to the Termination
of employment after resumption of
employment.
60. Section 32 applies to an
employer who has permitted a member to resume work or has reinstated a member in
employment after the member’s absence on defence service. Subsection (2)
provides that during the period that begins immediately after the member resumes
work or is reinstated in employment, and that is equal to the length of the
member’s absence on defence service, the employer must
not:
• terminate the member’s employment;
or
• vary the member’s employment by
employing the member in a capacity or under other conditions less favourable to
the member than the capacity in which, or the conditions under which, the member
was employed on resuming work or being reinstated in
employment.
61. Subsection 32(3) provides a
defence for an employer. If an employer has terminated the member’s
employment, it is a defence to that employer that, due to the changed
circumsatances since the member resumed work or was reinstated, it was not
within the employer’s power to retain the member in employment
62. Subsection 32(4) provides another defence
for an employer. Subsection (2) does not apply if the termination or variation
of the member’s employment was because of the misconduct by the member
that was serious enough to justify the termination or variation.
63. Subsection 32(5) makes it clear that the
member’s absence on defence service is not misconduct for the purposes of
subsection (4).
.
New Division
6 is headed “No additional obligations on employees”.
64. Section 33 makes it clear that the Act
does not oblige an employer of a member who is or has been absent on defence
service to do any of the following in respect of the period of
service:
• pay the member’s remuneration in
respect of the employment;
• grant the
member’s entitlements in respect of the
employment;
• meet the employer’s
obligations under workers’ compensation law to pay premiums, contributions
or similar payments in relation to the
member;
• meet the employer’s obligations
under the Superannuation Guarantee (Administration) Act 1992 in relation
to the member.
65. Subsection (2) provides that
the above does not apply to the extent that the member would have been entitled
to the benefit of the things mentioned anyway if the member’s absence had
been for a purpose other than the purpose of rendering defence service. An
example is provided:
66. An employer would still
have to pay the wages of a member who rendered defence service while on paid
annual leave, since the member’s absence on this form of leave would not
relieve the employer from having to pay wages. Once the member ran out of paid
leave, the employer would not have to pay the member any longer until the member
returned from rendering defence service.
67.
Subsection 33(3) goes onto to define “workers’ compensation
law” to mean a law that provides for compensation or other benefits
for work related trauma suffered by employees without requiring proof of any
breach by employers or their associates.
Part 6
relates to Partnership Protection.
68.
Section 34 provides an overview of the Part. The Part applies to all kinds of
defence service except for certain kinds of voluntary continuous full time
service. The Part protects members from having their partnerships dissolved
while the member is absent on defence service.
69.
Section 35 provides for dissolving partnerships involving a serving
member. Subsection (1) provides that a person must not take or continue
proceedings or other action against a member who is a partner in a partnership
to:
• dissolve the
partnership;
• expel the member from the
partnership;
• require the member to forfeit his
or her share in the partnership;
• subject the
member to any other detriment concerning the
partnership.
while the member is rendering defence
service.
70. Subsection (2) provides that it does
not matter whether the proceedings are taken or continued under a partnership
agreement or otherwise.
71. Subsection (3)
provides that subsection (1) does not apply if all the partners consented to
taking or continuing the proceedings or other action.
72. Section 36 mirrors section 35 except it
relates to former members. A person must not take or continue proceedings
or other action against a partner in a partnership who has rendered defence
service to:
• dissolve the partnership;
or
• expel the partner from the partnership;
or
• require the partner to forfeit his or her
share in the partnership; or
• subject the
partner to any other detriment concerning the
partnership;
before the end of the protected
period.
73. Subsection 36(2) provides that it
does not matter whether the proceedings are taken or continued under a
partnership agreement or otherwise.
74.
Subsection 36(3) provides that subsection (1) does not apply if the person
proves that all the partners consented to taking or continuing the proceedings
or other action.
Part 7 is the Part that provides
for Education Protections.
75. Section
37 provides an outline of the Part. The Part applies in relation all continuous
full time defence service except for certain kinds ofvoluntary continuous full
time service. The Part allows a member to re-enrol in and resume a course that
the member had to interrupt because he or she was required to render defence
service or voluntarily undertook defence service.
76. Section 38 applies the Part to a member who:
• is enrolled in a course at an Australian
education institution during all or any period he or she is rendering defence
service;
• does not complete the course before
ceasing to render the service;
• applies to
re-enrol (if necessary) and to resume the course within 30 days after ceasing to
render the service.
77. Section 39 provides for
the obligations of the body administering the institution. Subsection (1)
provides that the body administering the Australian education institution must
not exclude a member from the course or subject the member to any other
disadvantage because he or she did not complete a requirement of the course or
any assessment for the course, while rendering the defence service or otherwise
because of having rendered the defence service.
78.
Subsection 39(2) provides that the body administering the Australian education
institution must:
• allow the member to re-enrol
(if necessary) in the course;
• allow the member
to resume the course at a point that the body considers
appropriate;
• ensure that the conditions on the
re-enrolment and resumption are at least as favourable as those that would have
applied to a person who is not a member.
79.
Subsection 39(3) provide that subsection (2) does not apply however, because of
a change in the nature of the courses offered by the institution since the
member was previously enrolled:
• it was not
reasonable or practicable to allow the member to re-enrol or resume the course
in which he or she was previously enrolled;
• the
body administering the institution offered to enrol the member in another course
that most closely corresponded to the course in which he or she was previously
enrolled;
• the conditions on the re-enrolment
and resumption were the most favourable that it was reasonable or practicable to
offer the member.
Part 8 deals with Financial
Liability Protection.
80. Subsection 40(1)
provides an overview of the Part. The Part will only apply to continuous full
time service rendered as a result of a call out (see Part
3).
81. Subsection 40(2) provides for the
postponement of many debts that a member or his or her dependant would be liable
to pay after the member starts rendering defence service. The debts contemplated
in this Part are, for example, principal or interest under a loan or the
purchase price of something that the member or dependant agreed to buy. The
liability must have arisen before the member’s call out
day.
82. Subsection 40(3) provides for the period
for which debts are postponed. They are the shorter of the
following:
• the period that begins immediately
after the member ceased to render defence service and that is equal to the
length of that service;
• 12 months beginning
immediately after he or she ceased to render that
service.
83. Subsection 40(4) provides that
interest accrues on the postponed payments. This is so regardless of whether the
member of the dependant had to pay interest on the original
liability.
84. Subsection 40(5) provides that the
Part also stays proceedings in respect of the postponed
debts.
Division 2 provides for the Financial
Liabilities to which the Part applies.
85.
Section 41 sets out the financial liabilities that arise before a call out day.
Subsection 41(1) provides that the Part applies to a
liability of a member or his or her dependant that arose before the
member’s call out day to make a payment under one or more of the
following:
• a secured or unsecured
loan;
• an agreement to buy something (including
land)
• an agreement to lease something
(including land)
• a
guarantee;
• a hire purchase
agreement;
In the Part all the above are referred
to as “agreements”.
86. Subsection
41(2) provides that the section is subject to the exceptions in sections 44, 45
and 46.
87. Section 42 provides that the Part
also applies to a liability of a member or dependant to make a payment under an
agreement if:
• the member or dependant
had an option to buy or lease something (including land) that was granted before
the member’s call out day; and
• on
exercising the option under the agreement on or after that day, the member or
dependant became liable to make the payment.
88.
Subsection 42(2) provides that the section is subject to the exceptions in
sections 44, 45 and 46.
89. Subsection 43(1)
applies the Part to the liability of a member or dependant to pay rates or
other taxes in respect of land if the liability arose before the
member’s call out day or where section 42 applies, the liability arose on
or after the day on which the option to buy or lease the land was
exercised.
90. Subsection 43(2) provides that
the goods and services tax does not apply to the liability outlined in
subsection (1) relating to rates on land. Subsection 43(3) provides that the
section is subject to section 46 which relates to a members liabilities as a
trustee or in a representative capacity.
91.
Section 44 provides that the Part does not apply to a liability of a member or
dependant to make a payment under an agreement if, before the member’s
call out day, a court orders that a party to the agreement may exercise all or
any of its remedies to enforce the security under the agreement (including land
if the security is on the land).
92. Subsection
45(1) provides that the Part does not apply to a liability of a member or
dependant to make a payment under an agreement if, while liable to make the
payment, the member or dependant:
• becomes
bankrupt;
• applies to take the benefit of any
law for the relief of bankrupt or insolvent
debtors;
• compounds with his or her
creditors;
• makes an assignment of his or her
remuneration for the benefit of his or her
creditors;
• dies and his or her estate is being
administered in bankruptcy or insolvency.
93.
Subsection 45(2) provides that for the purposes of subsection (1), it does not
matter whether the bankruptcy, insolvency, assignment or death happened before
or after the commencement of the Act.
94. Section
46 provides for the a member’s liability in a trustee or
representative capacity. Subsection (1) provides that the Part does not apply in
relation to a liability of a member to make a payment as a trustee or in a
representative capacity except to the extent that in incurring the liability,
the member is acting for the benefit of, or on behalf of persons who are or who
include, the member one or more dependants of the
member.
95. Subsection (2) provides for the
dependant’s liability in a trustee or representative capacity. The
Part does not apply in relation to a liability of a member’s dependant to
make a payment as a trustee or in a representative capacity unless in incurring
the liability the dependant is acting for the benefit of or on behalf of persons
who are or who include the member or one or more other dependants of the
member.
96. Section 47 defines “liable to
make a payment” for the purposes of the Part. A person is liable to make a
payment if he or she is obliged to make a payment even if the due date for the
payment has not arrived.
97. Section 48 makes it
clear that a liability to which the Part applies may arise before or after the
commencement of the Act.
Division 3 provides for
the postponement of payments and the staying of
proceedings.
98. Subsection 49(1) provides
that the time for making a payment under an agreement to which the Part
applies is by force of the section postponed in accordance with the Division.
Subsection (2) mirrors subsection (1) however it applies to the postponement
of rates to which the Part applies.
99.
Subsection (3) provides that the time is postponed by the section even if the
time had already passed when the member began to render the relevant
service.
100. Subsection (4) provides that the
section does not prevent a person from making a payment before the time to which
a payment is postponed.
101. Section 50 relates
to Rescheduling Payments. Under subsection (1), if the payments are to be
made by the member or dependant by instalment and the first instalment falls due
before the end of the member’s protected period,
then:
• the time for paying the first unpaid
instalament is postponed so that the payment falls due at the end of the
member’s protected period;
• the time for
paying each later instalment is postponed for a period of the same length as the
member’s protected period.
102. Subsection
(2) provides that if only a single payment is to be made by the member or
dependant, and the payment falls due before the end of the member’s
protected period, the time for making the payment is postponed so that it falls
due at the end of the member’s protected period.
103. Subsection (3) provides that this section is subject to section 51 which outlines the situation where a payment falls due when a member dies while rendering defence service.
104. Section 51 deals with the scenario of a member dying whilst rendering defence service and payments fall due. Subsection (1) provides that if a member dies while rendering defence service, the time for making the payment is postponed so that the payment falls due on the first anniversary of the member’s death.
105. Subsection (2) provides that if the person liable to make the payment is a dependant of the member and the dependant dies while the member is rendering defence service, the time for making the payment is postponed so that the payment falls due on the first anniversary of the dependant’s death.
106. Subsection 51(3) provides that if subsections (1) and (2) apply to a payment, then the time for making the payment is postponed to the later of the two applicable times.
107. Section 52(1) provides that if an agreement to which the Part applies allows interest to be paid or accepted at a reduced or lower rate if it is paid before the due date, interest remains payable at the reduced or lowered rate even if it is not paid before the due date. Subsection (2) provides that no interest is payable under any other law on the late payment of rates on land if the payments were postponed under the Division.
108. Section 53 provides for the interest payable on postponed payments (except on rates on land). Subsection (1) provides that interest is payable by the member or dependant on a payment under an agreement that is postponed under the Division at the rate determined under subsection (3), until the payment is made. Subsection (2) provides that the interest is payable to the person to whom the postponed payments are required to be made.
109. Subsection (3) outlines the rate of interest. It is:
• the rate or rates specified in the agreemennt concerned before the interest falls due;
• if no rate of interest is specified in the agreement, the rate worked out in accordabnce with the regulations as in force at the start of the member’s call out day.
110. Subsection (4) provides that the interest is payable after the start of the postponement at the times specified in the agreement for paying the interest or, if no times are specified, at the end of 3 months after the start of the postponement and at the end of each successive period of 3 months.
111. Section 54 relates to the interest payable on payment of postponed rates of land. Subsection (1) provides that interest is payable by the member or dependant on payment postponed under section 43 until the payment is made.
112. Subsection (2) provides that the interest is payable to the person to whom the payments of the rates are required to be made and subsection (3) provides that the interest is payable at the end of each quarter that ends after the postponement.
113. Subsection (3) provides that the rate of interest is worked out in accordance with regulations as in force at the start of the member’s call out day.
114. Subsection (4) provides that the interest is payable at the end of each quarter that ends after the start of the postponement.
Subdivision B relates to Proceedings stayed.
115 Subsection 55 (1) provides that while one or more
payments are postponed, all proceedings against a member or dependant that were
instituted before the commencement of the Act either to enforce payments or in
respect of or because of non-payment. Subsection (2) provides that it does not
matter how or in what forum the proceedings were
instituted.
116. Subsection (3) provides that
while one or more payments are postponed, all remedies against the member or
dependant to recover the payments are stayed. Subsection (4) provides that the
Division does not prejudice or affect any stayed proceeding or remedy or affect
the rights or obligations of anyone. Subsection (5) provides that as soon as the
postponement ceases, all stayed proceedings may be continued and all stayed
remedies may be pursued.
117. Subdivision C
allows a Court to order that all or part of the Division does not apply.
118. Section 56 provides that a Court may order
that all or a specified part of this Division does not apply to a particular
payment if it is satisfied that the operation of those provisions would cause
hardship or unreasonable loss to someone other than the member or dependant.
119. Subsection (2) provides that in considering
an application for an order, the Court may make any interlocutory or final order
(including as to costs) that the Court considers just, having regard
to:
• if the liability arose under an agreement
– the terms and conditions of the
agreement;
• the circumstances of the member or
dependant; and
• the circumstances of the other
person.
Division 4 relates to General
Matters.
120. Section 57 provides that the
Powers of a security holder are not to be affected. The Part will not
affect the power of a security holder under an agreement to which the Part
applies to enforce the holder’s rights against the member or dependant
if:
• the security holder was or is in possession
of the security at the member’s call out day;
or
• if the security is land - the security
holder has appointed or appoints a receiver who, at the member’s call out
day was or is in possession of the land or is receiving the rents and the
profits of the land.
121. Section 58 provides
that the Part does not prevent or alter the effect of any instrument concerning
an agreement to which the Part applies that is made on or after the call out day
of the member concerned or anything done under the
instrument.
122. Section 59 relates to Joint
Liability. If a member or his or her dependant is liable jointly with one or
more others to make a payment under an agreement, the Part applies to the
member’s or dependant’s liability in the same way it would apply if
the member or dependant were solely liable. The Part does not apply to the
liability of the other parties who are jointly liable (but who are not
member’s or dependants to whose defence service this Part applies in their
own right).
123. Section 60 relates to the
operation of the Statute of Limitations. In working out a deadline
imposed by a staute of limitations or other Commonwealth, State or Territory law
for bringing actions or pursuing other remedies in respect of a liability to
which the Part applies, the following periods are not to be taken into
account:
• the period while the time for making
payments is postponed under the Part;
• the
period while proceedings or proposed proceedings are stayed under the
Part.
124. Section 61 outlines the
preservation of a member’s or dependant’s rights. Subsection
61(1) provides that the right of a member or his or her dependant to commence a
proceeding, or to enforce a right, exercise a power or pursue a remedy, in
relation to a liability to which the Part applies, is not barred during the
preservation period:
• by the end of a period of
limitation fixed by a Commonwealth, State or a Territory law;
or
• by an instrument with respect to the
right.
125. Subsection (2) provides that the
action, suit or other proceeding may be commenced and the right enforced, powers
exercised or remedy pursued at any time before the end of the preservation
period.
126. Subsection (3) says that it does not
matter whether the right arose before or after the commencement of the Act.
Subsection (4) provides that the section also applies in relation to a person
who became or becomes a member or dependant of a member after the right
arose.
127. Subsection (5) defines
“preservation period” for the purposes of the section. It means
the combined consecutive periods of the member’s absence on defence
service and the member’s protected
period.
Part 9 is the Part that provides for
Bankruptcy Protection.
128. Section 62
provides that the Part applies to continuous full time service rendered as a
result of a call out. The Part protects members from bankruptcy proceedings
while the member is rendering defence service following a call out.
129. Section 63 provides that bankruptcy
proceedings against a member or dependants are not allowed. Subsection (1)
provides that during a member’s protected period, a bankruptcy notice must
not be issued and a creditor’s petition must not be presented in relation
to the member or a dependant of the member if the notice or petition relates to
a debt that arose before the member’s call out day for the relevant
defence service.
130. Subsection (2) provides
that subsection (1) does not apply to a person who has leave of a Court with
jurisdiction in bankruptcy or insolvency to issue the notice or present the
petition. Subsection (3) goes onto provide that the Court must not grant leave
unless it is satisfied that, having regard to all the circumstances of the case,
including the conduct and the financial situation of the member or dependant and
of the applicant, it would be inequitable to refuse to grant
leave.
131. Section 64 outlines the orders that
the Court may make in relation to the bankruptcy of a member.
If:
• a creditor presents a bankruptcy
petition to a court against a member or his or her
dependant;
• and the member or dependant
satisfies the Court that he or she was unable to pay the relevant debts, because
of the circumstances (directly or indirectly) attributable to the member’s
defence service,
the Court may stay the proceedings
under the petition for such time and subject to such conditions as the Court
thinks fit.
132. Subsection 64(2) provides that
if:
• a Court has on the petition of a creditor,
made a sequestration order against a person who is a member or dependant of a
member; and
• on application the Court is
satisfied that if the sequestration is
annulled,
the business of that person will continue
to be carried on by the person on his or her behalf and the business will be
carried on successfully, the Court may make an order annulling the sequestration
order.
133. Subsection (3) provides that an order
under subsection (2) annulling a sequestration order has the same effect as an
annullment of the sequestration order under the Bankruptcy Act
1966.
134. Subsection (4) provides that an
order made under subsection (2) may be made on such conditions as the Court
thinks fit. This includes the reimbursement of the costs incurred by the
petitioning creditor in the bankruptcy.
Part 10
relates to Loans and Guarantees to former members on return from call
out.
135. Section 65 provides an Overview
of the Part. The Part applies in relation to continuous full time service
rendered as a result of a call out. This Part allows for a member who has
rendered defence service after being called out, to get access to loans and
guarantees to enable him or her to resume civilian life after returning from
that service.
136. Section 66 provides a
prescribed authority to make loans and give guarantees. To enable a member to
resume civilian life after he or she stops rendering defence service, a
prescribed authority may make a loan to the member or guarantee the repayment
of a loan to a member and the interest on the
loan.
137. Section 67 relates to the amount of
the loan or the guarantee. The amount of the loan or the guarantee must not
be more than the prescribed amount. Subsection (2) goes onto provide that if one
or more loan is made or guarantee given to a member, the sum of them must not be
more than the prescribed amount.
138. Section 68
provides that a loan is made or a guarantee given on the security and terms and
conditions that the prescribed authority determines in
writing.
139. Section 69 provides that interest
is payable on a loan under the Part at the rate and under the conditions
prescribed by the Regulations that were in force when the loan was
made.
140. Section 70 outlines the
pre-conditions for a loan or guarantee. Subsection (1) prohibits a
prescribed authority from making a guarantee or loan unles the requirements and
matters under the section are met and taken into account. These
are:
• the member must apply in the prescribed
form for the loan or guarantee within the prescribed period (subsection
(2));
• the prescribed authority must approve the
particular purpose for which the loan is made or guarantee given (subsection
(3));
• the prescribed authority must be
satisfied that the applicant is likely to repay the amount of the loan made or
guaranteed within a reasonable period (subsection
(4));
• in determining whether to make a loan or
give a guarantee, the prescribed authority must take into account the effect of
the applicant’s defence service on his or her capacity and opportunities
to establish or re-establish himself or herself in civilian life without
assistance under the Part (subsection 5));
141.
Section 71 provides that an application may be made to the Administrative Review
Tribunal for review of a decision to refuse to make a loan or give a
guarantee.
142. Section 72 provides for
agreements between prescribed authorities and States and Territories.
Subsection (1) provides that a prescribed authority may enter into an
agreement with a State or Territory, a State or Territory authority or an ADI
(the delegate) for the delegate to perform those functions of the prescribed
authority under the Part that are specified in the
agreement.
143. Subsection (2) provides that if
under an agreement the delegate makes or guarantees a loan to a member, the
delegate my take any security for the loan or guarantee the loan in its own
name.
144. Subsection (3) goes onto say that for
the purposes of the Part, a prescribed authority may make loans or give
guarantees to a State or Territory authority or an ADI that is itself making
loans or giving guarantees under an agreement.
145.
Subsection (4) provides that the prescribed authority must have the Finance
Minister’s consent to enter into an agreement mentioned in subsection (1)
and to make a loan or give a guarantee mentioned in subsection
(3).
Part 11 is the Part that provides for
Enforcement and Remedies. Division 1 deals with Civil
Enforcement.
146. Section 73 provides for
action for loss or damage. Subsection (1) provides that a person who
suffers loss or damage because another person contravenes or was involved in
contravening as provision of the Act may bring an action in a Court of competent
jurisdiction to recover the amount of the loss or damage from the other person.
This is so even if the other person did not commit an offence (if the
contravention is also an offence).
147.
Subsection (2) goes onto say that an action mentioned in subsection (1) may be
brought by a prescribed person on behalf of the person who suffers the loss or
damage.
148. Subsection (3) provides that an
action under subsection (1) may only be begun within 3 years after the day on
which the cause of action arose.
149 Subsection
(4) says that the section does not affect any right or liability that a person
has under any other law.
150. Subsection (5)
provides that for the purposes of the section, a person is involved in a
contravention if and only if the person
has
• Aided or abetted, counselled or procured
the contravention;
• Induced whether by threats
or promises or otherwise, the contravention;
• In any way by act or omission directly or
indirectly, been knowingly concerned in or party to the contravention;
or
• Conspired with others to effect the
contravention.
151. Section 74 provides that if a
person is convicted of an offence against the Act in relation to another person,
the Court may (whether or not it imposes a penalty) order the convicted person
to pay the other person such compensation as the Court thinks reasonable. An
order under subsection (1) may be enforced as if it were a judgement of the
Court.
152. Section 75 provides for
injunctions for contraventions of the Act.
153. Subsection (1) relates to applications
for injunctions. It provides that if a person has engaged, engages or
proposes to engage in conduct consisting of an act or omission that constitutes
an offence or other contravention under the Act the following persons may apply
for an injunction to a Court of competent jurisdictionunder subsection (2) or
(3):
• an interested
person;
• a prescribed person acting on behalf of
an interested person.
154. Subsection (2) relates
to prohibitory injunctions. It provides that if a person has engaged, is
engaging or is proposing to engage in conduct constituting an offence or other
contravention of the Act, the Court may grant an injunction restraining the
person from engaging in the conduct. The Court may grant the
injunction:
• whether or not it appears to the
Court that the person intends to engage asgain or continue to engage in conduct
of that kind; and
• whether or not the person has
previously engaged in conduct of that kind.
155.
Subsection (3) relates to mandatory injunctions. If a person has refused
or failed or is refusing or failing, or is proposing to refuse or fail to do an
act and the refusal or failure did, does or would constitute an offence under
the Act, the Court may grant an injunction requiring the person to do the act.
The Court may grant the injunction:
• whether or
not it appears to the Court that the person intends to refuse or fail again or
to continue to refuse or fail, to do the act;
and
• whether or not the person has previously
refused or failed to do the act.
156. Subsection
(4) relates to interim injunctions. Before deciding an application for an
injunction under the section, the Court may grant an interim injunction
restraining a person from engaging in conduct or requiring a person to do an
act.
157. Subsection (5) provides that the Court
may, on application, discharge or vary an
injunction.
158. Subsection (6) provides that a
presribed person cannot be required, as a condition of granting an interim
injunction, to give an undertaking as to
damages.
159. Subsection (7) says that the powers
conferred on a Court by the section are in addition to and do not limit any
other powers of the Court.
160. Section 76
provides that a Court may make other orders if transactions or proceedings are
in contravention of the Act.. Subsection (1) says that a Court of competent
jurisdiction may make any other order (including a declaratory order) it thinks
fit if a person enters a transaction or brings a proceeding in contravention of
the Act. Subsection (2) goes onto specify that only an interested person or a
prescribed person acting on behalf of an interested person may apply to the
Court under the section.
161. Subsection (3)
provides that an order under subsection (1) may be enforced as if it were a
judgement of the Court.
162. Subsection (4)
provides that the section does not affect a person’s liability to a
penalty for a contravention of the Act.
Part 12
deals with Other Matters.
163. Section 77
relates to the Jurisdiction of Courts. It specifies the Courts that may
hear and determine matters under the Act. They
are:
• all State and Territory courts (including
courts of summary jurisdiction), insofar as their jurisdiction extends to those
matters;
• The Federal Court of
Australia;
.
164. The Act
does not however confer on these Courts criminal jurisdiction (subsection
(2)).
165. To make it clear, subsection (3)
provides that nothing in the Act limits the jurisdiction of a Court or other
body under any other law of the Commonwealth, a State or Territory in relation
to matters covered under the Act.
166. Section 78
provides that the Act applies to an unincorporated body or association
(“the body”) as if it were a person other than an individual, but it
applies subject to the following:
• Obligations
that would be imposed on the body are imposed instead on – if the body is
a partnership – each partner;
• or in any
other case – each member of the committee of management of the body. The
obligations may be discharged by any of the partners or any of the
members;
167. Section 79 provides for
Delegation. A service chief may, by signed writing, delegate all or any
of his or her powers and functions under the Act to an officer (within the
meaning of the Defence Act 1903) in that
service.
Section 80 provides for
Severability
168. Subsection (1) provides
that the without limiting its effect apart from this section, the Act has effect
as provided for under the section.
169.
Subsection (2) provides that the Act also has the effect that it would have had
if its operation were expressly confined to acts or omissions of corporations to
which paragraph 51(xx) of the Constitution
applies.
170. Subsection (3) provides that the
Act also has the effect that it would have if its operation were expressly
confined to acts or omissions taking place in the course of or in relation to
trade or commerce:
• Between Australia and places
outside Australia;
• Among the
States;
• Within a Territory, between a State and
a Territory or between 2 Territories.
171.
Subsection (4) provides that the Act also has the effect that it would have if
its operation were expressly confined to acts or omissions taking place in a
Territory.
172. Section 81 is the Regulation
making section. The Governor-General may make Regulations prescribing
matters required or permitted by the Act to be prescribed or necessary or
convenient to be presribed for carrying out or giving effect to the Act. In
particular, the Regulations may prescribe penalties not exceeding a fine of 10
penalty units for offences against the Regulations.