Commonwealth Numbered Regulations - Explanatory Statements

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AIR FORCE REGULATIONS (AMENDMENT) 1995 NO. 273

STATUTORY RULES 1995 No. 273

Issued by the Authority of the Minister for Defence Science and Personnel

Air Force Act 1923

Air Force Regulations (Amendment)

The Air Force Regulations, made under the Air Force Act 1923, prescribe various matters relating to the organisation and administration of the Air Force.

The Defence Legislation Amendment Act 1995 includes amendments to the Defence Act 1903 and the Naval Defence Act 1910 that replace provisions under which Army and Navy officers hold their appointments at the Governor-General's pleasure with specific procedures for the retirement of officers or termination of their appointments, and with procedures for the management initiated early retirement and limited-tenure promotion of officers.

The equivalent conditions of service for Air Force officers are contained in the Air Force Regulations, as opposed to the Air Force Act. The purpose of the Statutory Rule is therefore to make corresponding changes to the Air Force Regulations for Air Force officers. Details of these amendments are contained in the Attachment to this Explanatory Statement.

There was also a requirement to deem the ranks that Air Force chaplains notionally hold for the purposes of the new retirement and termination provisions. This is necessary because chaplains are classified by division but do not hold rank, other than the rank of chaplain. The Statutory Rule amends the Air Force Regulations by inserting a new regulation 51A which deems chaplains to hold rank in accordance with their divisional classification.

The Statutory Rule comes into operation on the same date as the related Defence Act and Naval Defence Act provisions, which have been proclaimed to commence on 1 November 1995.

ATTACHMENT

DETAILS OF THE RETIREMENT AND TERMINATION AMENDMENTS TO THE AIR FORCE REGULATIONS

The following amendments to the Air Force Regulations correspond to amendments to the Defence Act 1903 and Naval Defence Act 1910 made by the Defence Legislation Amendment Act 1995.

Limited-tenure promotions

New regulation 66 provides for the promotion of selected senior Air Force officers for a specific period. This is intended to allow for a limited number of senior officer promotions in situations where an individual is identified as having skills relevant to a particular appointment rather than skills that will enable wider employability at the higher rank level.

The new regulation provides for limited-tenure promotions to be applied where an officer is promoted to Group Captain rank or above for a set period (which would normally be for a minimum of 3 years).

The new regulation ensures that an officer has the right to refuse a limited-tenure promotion and to continue service at the lower rank. However, where a limited-tenure promotion is accepted, an officer will be retired on completion of its period, unless offered an extension of service at the higher rank or a continuation at the original rank level.

Officers promoted under the limited-tenure promotion provisions are not entitled to the financial benefits of the management initiated early retirement provisions outlined below.

Replacement of appointments "at pleasure"

Regulation 72 of the Air Force Regulations provided that Air Force officers held their appointments at the pleasure of the Governor-General.

The amendments made by the remaining provisions of the Statutory Rule replace regulation 72 with procedures for the Air Force which set out the specific grounds for the retirement of officers and termination of their appointments, and with procedures for the management initiated early retirement of Air Force officers.

Retirement and Termination of Officers

New regulations 75, 76, 77 and 78 provide that an officer in the Air Force may be retired for one of the following reasons:

a.       that the period of the officer's statutory appointment has expired in the case of an officer appointed to a statutory office under section 9 or 9AA of the Defence Act;

b. that the period of service, expressed in accordance with regulation 46, for which the officer was appointed (including any extension of the period) has expired;

c.       that the officer is, as a result of some physical or mental incapacity, not within his or her control, incapable of rendering effective service; or

d.       that the officer is inefficient or incompetent for causes not within his or her control.

New regulations 80 and 81 provide that the appointment of an officer in the Air Force may be terminated for one of the following reasons:

a.       that the officer has been absent without leave for a continuous period of at least 3 months;

b.       that the officer has been convicted by a court or service tribunal of a criminal or service offence, or that a court or service tribunal has found (without recording such a conviction) that the officer has committed an offence, and the Chief of the Air Staff is of the opinion that, having regard to the nature and seriousness of the offence, the retention of the officer is not in the interests of the Defence Force;

c.       that the officer is inefficient or incompetent for reasons or causes within his or her own control; or

d.       that the officer's behaviour or performance, due to circumstances within his or her control, is such that the retention of the officer is not in the interests of the Defence Force.

New regulations 78 and 81 require (subject to the exceptions specified in the next sentence) that an officer, who is to be retired or have an appointment terminated, should be given adequate particulars of the reasons for the proposed retirement or termination of appointment and an opportunity to show cause why he or she should not be retired or have the appointment terminated. The exceptions are where the officer has been retired because his or her period of appointment or service (including extensions) has expired or where the officer's appointment has been terminated because he or she has been absent without leave for a continuous period of at least 3 months.

New regulations 74; 75, 76, 77, 78, 80 and 81 specify the persons who may retire an officer or terminate the appointment of an officer. With the exception of officers who are absent without leave, these are: at Air Vice-Marshal rank and above, the Governor-General; at Air Commodore rank, the Minister; and at Group Captain rank and below, the Chief of the Air Staff. In the case of officers who are absent without leave, these are: at Air Commodore rank and above, the Minister; and at Group Captain rank and below, the Chief of the Air Staff.

New regulations 79 and 82 provide that a retirement or termination of appointment is to be effected by instrument. That instrument must specify the day on which the retirement or termination takes effect. With the exception of officers who are absent without leave, this must be a date not earlier than the day the instrument is given to the officer and not later than 3 months after that date. In the case of officers who are absent without leave, this must be a date not earlier than the date the instrument is signed.

The following amendments are associated with the above changes:

a.       The omission of subregulation 46(2) is a consequential change tied to the specified grounds of retirement.

b.       New subregulations 88(2A) and 118(2A) make it clear that a member who attains the prescribed retiring age retires automatically at that point without the need for any formal action.

c.       New regulation 51A prescribes the ranks that chaplains are to be deemed to hold for the purposes of the retirement and termination provisions.

Management Initiated Early Retirement

New regulations 83, 84, 85 and 85A provide separate procedures for the management initiated early retirement of Air Force officers.

New regulation 83 empowers the Chief of the Air Staff to initiate an early retirement by giving an officer written notice that the officer is entitled to a special financial benefit if he or she retires within a specified period (one month commencing not earlier than the day the notice is given.)

New regulation 85 enables the Chief of the Air Staff to compulsorily retire without a special financial benefit an officer who does not retire within the period specified in the notice under regulation 8.3, if the Chief of the Air Staff considers that the officer needs to be removed for organisational effectiveness. The regulation also provides that the retirement of an officer who does not accept an offer of a financial benefit will take effect not earlier than 13 months after the officer is given a retirement notice under this provision.

New regulation 84 provides that, before the Chief of the Air Staff can initiate an early retirement, the officer must be given, in writing, reasons for his or her retirement and an opportunity to show cause why that action should not proceed. In addition, new regulation 85A provides that the periods described in the previous two paragraphs will be suspended while any associated redress of grievance complaint made by an affected officer under the Defence Force Regulations or complaint under the Ombudsman Act is being finalised.