ARMY AND AIR FORCE (CANTEEN) REGULATION 2016 (F2016L01455) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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ARMY AND AIR FORCE (CANTEEN) REGULATION 2016 (F2016L01455)

EXPLANATORY STATEMENT

Issued by authority of the Minister for Defence Personnel

Defence Act 1903

Army and Air Force (Canteen) Regulation 2016

 

The Defence Act 1903 (the Act) prescribes the control, administration, constitution and service of the Australian Defence Force.

 

Subsection 124(1) of the Act, provides that the Governor-General may make regulations not inconsistent with the Act, prescribing all matters which by the Acts are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the good government of the Defence Force, or for carrying out or giving effect to the Act

Specifically subparagraph 124(1) (o) of the Act provides that the Governor-General may make regulations for the establishment, maintenance, operation and control of canteens. 

 

The purpose of the Army and Air Force (Canteen) Regulation 2016 (the Regulation) is to repeal the Army and Air Force Canteen Service Regulations 1959 which are due to sunset on 1 October 2016. The Regulation will replace the existing regulation and be similar in substance with modern language consistent with current drafting practice and also to take into account the new governance arrangements for the ADF as the result of the Defence Legislation Amendment (First Principles) Act 2015 which amended the Defence Act 1903 on 1 July 2016. There are no substantial changes which will affect the management or operation of the canteen services currently provided as the Regulation continues the operation of the Army and Air Force Canteen Service and the Army and Air Force Canteen Service Board of Management to provide for the welfare, recreation and entertainment of Defence personnel and their families in their current format.

 

 

 

Consultation and other Issues

The Department of Finance, the Australian Government Solicitor and the Army and Air Force Canteen Service Board have been consulted during the remake of this Instrument.    

 

The Regulation will have a minor regulatory impact. Therefore no Regulation Impact Statement is not required (Office of Best Practice Regulation reference number is 21040).

The Regulation is a legislative instrument for the purposes of the Legislation Act 2003.

The Regulation commences on 1 October 2016 and the details of the Regulation are set out in the Attachment.


Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Army and Air Force (Canteen) Regulation 2016

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The purpose of this Instrument is to repeal the Army and Air Force Canteen Service Regulations 1959 which are due to sunset on 1 October 2016 and remake similar in substance with a modern language consistent with current drafting practice and also take into account of the new governance arrangements for the ADF which came into effect on 1 July 2016. There are no substantial changes which will affect the management or operation of the canteen services currently provided and continues the operation of the Army and Air Force Canteen Service and the Army and Air Force Canteen Service Board of Management to provide for the welfare, recreation and entertainment of Defence personnel and their families in their current format.

 

Human rights implications.

 

The Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

The Instrument is compatible with human rights as it does not raise any human rights issues.

 


ATTACHMENT

 

 

Details of the Army and Air Force (Canteen) Regulation 2016

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Army and Air Force (Canteen) Regulation 2016.

 

Section 2 - Commencement

 

This section provides for the Regulation to commence on 1 October 2016.   

 

Section 3- Authority

 

This Regulation is made under the Defence Act 1903.

 

Section 4 - Schedules

 

This section provides that the Army and Air Force Canteen Service Regulations 1959 as specified in the Schedule to this Regulation be repealed. 

 

Section 5 - Definitions

 

This section provides definitions of words and phrases used throughout the Regulation.

 

Section 6 - Establishment

 

This section provides that the Board established by subregulation 9(1) of the Army and Air Force Canteen Service Regulations 1959, as in force immediately before 1 October 2016, is continued in existence by force of this section.

 

Section 7 - Constitution

This section provides the constitution of the Board.

 

Section 8 - Functions and powers

 

This section provides for the functions and powers of the Board. Generally, the Board has power to do all things necessary or convenient to be done for and in connection with performing its functions.

 

Section 9 - Membership

 

This section provides for the membership of the Board. The Board consists of two officers appointed by the Chief of the Defence Force; three persons appointed by the Minister, at least two have had extensive business or commercial experience, and the Managing Director.

 

The Minister must appoint one of the persons he/she has appointed under this section to be the Chair. The Chief of the Defence Force must appoint one of the officers he/she has appointed under this section to be the Deputy Chair.

 

Division 2 - Terms and conditions of the Board members

 

Division 2 sets out the terms and conditions of Board members. 

 

Section 10 - Appointment

 

This section provides that a Board member, other than the Managing Director, is to be appointed, by written instrument, on a part-time basis.

 

Section 11 - Term of appointment

 

This section provides that a Board member's term of appointment must not exceed 3 years.

 

Section 12 - Remuneration

 

This section provides that a Board member appointed by the Minister is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Board member is to be paid the remuneration that is determined by the Minister.

 

Any other Board member is not entitled to be paid in respect of any services performed by the Board member under the Regulation.

 

Nothing in this section prevents the reimbursement of any out-of-pocket expenses reasonably incurred in respect of any services performed by a Board member under this instrument, or affects the right of any member of the Australian Defence Force to receive any salary, pay or allowances due to the member in his or her capacity as a member of the Australian Defence Force.

 

Section 13 - Leave of absence

 

This section provides that the Board may grant leave of absence to a Board member on the terms and conditions that the Board determines.

 

Section 14 - Resignation

 

This section provides that a Board member appointed by the Minister may resign his or her appointment by giving the Minister a written resignation, which takes effect on the day it is received by the Minister or a later date if specified in the resignation.

 

A Board member appointed by the Chief of the Defence Force may resign his or her appointment without resigning as a member of the Australian Defence Force.

 

Section 15 - Termination of appointment

 

This section provides the specific grounds for termination for appointment for Board members appointed by the Minister and the Chief of Defence Force.

 

Division 3 - Board meetings

 

Division 3 provides for the Regulations of Board meetings and procedures.

 

Section 16 - Holding meetings

 

This section provides that the Board is to hold such meetings as necessary. At a minimum, the Chair must convene at least one meeting in each quarter of a calendar year.

 

Section 17 - Presiding at meetings

 

This section provides that the Chair presides at all meetings of the Board at which he or she is present. If the Chair is not present at a meeting, the Deputy Chair is to preside at the meeting.

 

Section 18 - Quorum

 

This section provides that at a meeting of the Board, 3 Board members constitute a quorum so long as at least of those Board members is a person appointed by the Chief of the Defence Force under section 9.

 

Section 19 - Voting at meetings

 

This section provides that all questions before the Board are decided by a majority of votes. Each Board member present at a Board meeting has a deliberative vote and, if the votes are equal, the person presiding at the meeting also has a casting vote.

 

Section 20 - Deputy members

 

This section provides that if a Board member is absent from a Board meeting, the deputy of the Board member may attend the meeting and has the power of a Board member.

 

Division 4 - Miscellaneous

 

Division 4 provides for the Board's power to establish committees for the purpose of performing its functions and delegations of its power in the Regulation.

 

Subdivision A - Committees

 

Subdivision A provides for the establishment and remuneration of committee members.

 

Section 21 - Committees

 

This section provides that for the purpose of performing its functions, or exercising its powers, the Board may establish such committees as it considers necessary after consulting with officers commanding the relevant Army or Air Force installation.

 

Section 22 - Remuneration of Committee members

 

This section provides that a member of the committee is not entitled to be paid in respect of any services performed by the member under the Regulation.

 

Nothing in this section prevents the reimbursement of any out-of-pocket expenses reasonably incurred in respect of any services performed by a member of a committee under this Regulation or affects the right of any member of the Australian Defence Force to receive any salary, pay or allowances due to the member in his or her capacity as a member of the Australian Defence Force.

 

Subdivision B - Delegation

 

Subdivision B provides for the Board's power to be delegated.

 

Section 23 - Delegation

 

This section provides that the Board may, by writing under its seal, delegate any of its powers under this Regulation (other than this delegation section) to the Chair, the Deputy Chair, the Managing Director or an employee of the Board.

 

Part 3 - Army and Air Force Canteen Service

 

Part 3 provides for the conduct of the Army and Air Force Canteen Service and financial and reporting requirements.

 

Division 1 - Conduct of Canteen Service

 

Division 1 provides for the conduct of the Canteen Service.

 

Section 24 - How the Canteen Service is to be conducted

 

This section provides that the Canteen Service is to be controlled and conducted by the Board in accordance with the Regulation and sets out the purposes of the Canteen Service.

 

This section also provides that the Board must conduct the Canteen Service in accordance with the following guidelines:

 

The Board may conduct the operations of the Canteen Service under a name registered under the legislation, relating to the business names, of a State or Territory in which the operations of the Canteen Service are being conducted.

 

Section 25 - Managing Director of the Canteen Service

 

This section provides that the Board must appoint a person to be the Managing Director of the Canteen Service. The Managing Director is the executive member of the Board in relation to managing the Canteen Service in accordance with the policy guidelines in section 24. The Managing Director is to be paid such remuneration as is determined by the Remuneration Tribunal or by the Minister. The Managing Director holds office on such other terms and as are determined by the Minister.

 

Section 26 - Staff of Canteen Service

 

This section provides that the Board may employ and determine the terms and conditions of employment of such persons as it considers necessary. The Minister may issue written directions.

 

Division 2 - Finance and reporting requirements

 

The Division 2 contains provisions relating to finance and reporting requirements.

 

Subdivision A - Provisions relating to finance

 

Subdivision A includes provisions relating to finance.

 

Section 27 - Finance

 

This section provides that the Board controls the finances of the Canteen Services. The Board may allocate to the Managing Director or an employee of the Board the funds of the Canteen Service that the Board considers necessary to administer and conduct the part of the Canteen Service for which that person has been given responsibility by the Board.

 

The section also provides the definition of 'funds' under the section.

 

Section 28 - Borrowing

 

This section provides that the Board may, with the written approval of the Finance Minister, borrow money (otherwise than from the Commonwealth) that is necessary to conduct the Canteen Service and may give security over the whole or any part of its assets.

 

Section 29 - Application and investment of money

 

This section provides that the Board's money may be applied only:

 

Section 30 - Restrictions on contracts

 

This section provides that the Board may not, except with approval of the Minister, enter into a contract involving the payment or receipt of an amount exceeding $500,000.

 

Section 31 - Distribution of profits

 

This section provides the formula for the distribution of profits by the Board and the definition of 'expenditure' and 'revenue'.

 

Subdivision B - Reporting requirements

 

Subdivision B provides for the reporting requirements by the Board.

 

Section 32 - Annual report

 

This section provides that an annual report prepared by the Board and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must set out each policy guideline approved by the Minister under paragraph 24(5)(b) and each direction issued by the Minister under subsection 26(3).

 

Part 4 - Miscellaneous

 

Part 4 provides for the application of other laws and delegations by the Minister and the Finance Minister.

 

Division 1 - Application of other laws

 

Division 1 provides for the application of other laws to the Board.

 

Section 33 - Taxation laws

 

This section provides that the Board is subject to taxation, other than income tax, under the laws of the Commonwealth, the States and the Territories.

 

Section 34 - Exemption from laws relating to the supply of liquor

 

This section provides that it is not necessary to have any licence or permission for keeping, supplying, on sale or otherwise, or permitting the consumption of liquor at a canteen or other facility established, conducted, maintained or operated in accordance with the Regulation or under a licence granted under section 35.

 

Section 35 - Licences

 

This section provides that the Board may, with the approval of the Commanding Officer of an Army or Air Force installation, grant a licence to a person to provide a service not catered for in the Army or Air Force installation by the Canteen Service.

 

A licence may be granted on such terms and conditions as the Board determines.

 

 

 

Division 2 provides for delegations by the Minister

 

Section 36 - Delegation - Minister

 

This section provides that the Minister may, by written instrument, delegate any of the Minister's powers under the Regulation to:

 

Part 5 - Application, savings and transitional provisions

 

Part 5 sets out the application, savings and transitional provisions. The new Regulation aims to continue the operations of the Army and Air Force Canteen Service and the Army and Air Force Canteen Service Board of Management after 1 October 2016 under this Regulation maintaining (saving) the provisions in place prior to the repeal of the old law.

 

Section 37 - Definitions

 

This section provides that 'old law' means the Army and Air Force Canteen Service Regulations 1959, as in force immediately before 1 October 2016.

 

Section 38 - Savings - appointments

 

This section provides for savings provisions in relation to appointment of Board members, Chairman, Deputy Chairman and trustees.

 

Section 39 - Savings - Board orders and instructions

 

This section provides that an order or instructions issued by the Board under paragraph 13(1) (h) of the old law and in force immediately before 1 October 2016, has effect on and after that day as if it were issued by the Board under paragraph 8(1) (h) of this Regulation.

 

Section 40 - Savings - Minister's policy guidelines and directions

 

This section provides that policy guideline approved by the Minister under paragraph 4(4) (d), a direction issued under subregulation 20(2) or a principle approved under subregulation 24(2) of the old law and in force immediately before 1 October 2016 has effect on and after that day as if they were issued under paragraph 24(3) (d), subsection 26(3) and paragraph 31(2) (b) respectively of this Regulation.

 

Section 41 - Savings - staff of Canteen Service

 

This section provides that a person employed by the Board under the old law immediately before 1 October 2016 continues to be employed on and after that day under subsection 26(1 of this Regulation.

 

Section 42 - Savings - licences

 

This section provides that a licence granted by the Board under regulation 28 of the old law and in force immediately before 1 October 2016 is taken to be granted, on 1 October 2016, under subsection 35(1) of this Regulation on the same terms and conditions that applied immediately before that day.

 

Section 43 - Savings - delegations

 

This section provides for delegations by the Board (under subregulation 19(1) of the old law) and the Minister (under subregulation 3A(1) of the old law) that were in force immediately before 1 October 2016 continues in force on and after that date as if it had been made under sections 23 and 36 respectively of this Regulation.

 

Schedule 2 - Repeals

 

Section 1 - The whole of the regulations

 

This provision repeals the Army and Air Force Canteen Service Regulations 1959 on 1 October 2016.    

 

 


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