EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 323

 

Issued by the authority of the Minister for Defence

 

Defence Force Discipline Act 1982

 

Defence Force Discipline Amendment Regulations 2009 (No. 1)

 

 

Subsection 197(1) of the Defence Force Discipline Act 1982 (the Discipline Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Discipline Act, prescribing all matters required or permitted by the Discipline Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Discipline Act.

 

The Defence Force Discipline Regulations 1985 (the Principal Regulations), among other things, enable a summary authority (a service tribunal appointed under the Discipline Act) to try offences against certain provisions of the Discipline Act which it does not ordinarily have jurisdiction to deal with. These offences are, by definition, ‘prescribed’ offences, which carry a penalty of more than two years imprisonment. These offences include theft, receiving stolen property or looting.

 

‘Prescribed offence’ is defined in section 104 of the Discipline Act. These offences may only be dealt with by a court martial or a Defence Force magistrate. However, some offences, specifically, those mentioned above, have been ‘de-prescribed’ by the operation of paragraph 44(a) of the Principal Regulations on the basis that they are considered to be offences whose seriousness is peculiar to their factual context and can therefore, in some circumstances, be appropriately dealt with by a summary authority.

 

The Regulations include an offence against section 60 of the Financial Management and Accountability Act 1997 (misuse a Commonwealth credit card) within the same category as those other ‘de-prescribed’ offences discussed above. This enables a summary authority to try such an offence which it does not otherwise have jurisdiction to deal with (as section 60 carries a penalty of more than two years imprisonment).

 

Details of the Regulations are contained in the Attachment.

 

The Discipline Act does not specify any conditions that need to be met before the power to make the proposed Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after which they are registered on the Federal Register of Legislative Instruments

 

There has been no consultation in the making of this instrument as it relates to the management and service of members of the ADF.

 

ATTACHMENT

 

 

Details of the Defence Force Discipline Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Defence Force Discipline Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

The Regulations commence on the day after which they are registered on the Federal Register of Legislative Instruments

 

Amendment of the Defence Force Discipline Regulations 1985

 

This regulation provides that the Principal Regulations are amended as set out in Schedule 1.

 

Schedule 1- Amendment

 

Item [1] omits and substitutes paragraph 44(a) of the Principal Regulations to include a reference to the section 60 of the Finance Act.

 

 

 

 

 

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