Commonwealth Numbered Regulations - Explanatory Statements

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DEFENCE FORCE REGULATIONS (AMENDMENT) 1995 NO. 51

STATUTORY RULES 1995 No. 51

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

Defence Act 1903

Defence Force Regulations (Amendment)

Background

Paragraph 124 (1) (b) of the Defence Act 1903 (the Act)provides that the Governor-General may make regulations providing for and in relation to the forfeiture, or assignment, of the whole or part of the remuneration of a member or cadet or of allowances or other pecuniary benefits payable in respect of a member or cadet.

The Defence Force Regulations (the Principal Regulations) prescribe various matters concerning the administration of the Defence Force. Regulation 68 provides for the forfeiture of salary by a member of or a period in which the member is undergoing the punishment of detention.

The Regulations amend the Principal Regulations, to correct references to salary determinations which have now been superseded.

Paragraph 68 (1) (a) of the Principal Regulations prescribes the amount of salary to be forfeited by a member of the Permanent Forces undergoing detention. It was the difference, if any, between the member's salary during detention, and the salary of a normal entry recruit undergoing basic recruit training as specified in "Determination 0101, Salary of Permanent Force Members, made under section 58B of the Act, as in force from time to time as modified from time to time by determinations made under section 58H of that Act".

Determination 0101 has not dealt with rates of salary since 4 June 1992 when a Defence Force Remuneration Tribunal determination (Determination No. 6 of 1992), made under section 58H of the Act, took over coverage of this matter. on that date the provisions dealing with the rates of salary were omitted from Determination 0101 by a determination made under section 58B of the Act (Determination No. 21 of 1992).

Paragraph 68 (2) (a) of the Principal Regulations provided for the salary which is forfeited during a period of detention, by a member of the Emergency or Reserve Forces rendering other than continuous full-time service, to be calculated with reference to "Determination 0199, Pay of Reserve Force Members, made under section 58B of the Act, as in force from time to time as modified from time to time by determinations made under section 58H of that Act".

Determination 0199 ceased to deal with the rates of salary for Reserve Force members on 4 June 1992, when Determination No. 6 of 1992 took over coverage of this matter also. On that date, Determination 0199 was repealed under section 58B of the Act by Determination No. 21 of 1992.

In order to identify correctly the source of salary for the regulations in question, the references to Determinations 0101 and 0199 needed to be replaced by references to Determination No. 6 of 1992. The amendment needed to be retrospective so that the references to Determination No. 6 of 1992 had effect from 4 June 1992. when that Determination replaced Determinations 0101 and 0199.

The Attorney-General's Department has advised that the amendment to the Principal Regulations is not prevented by the Acts Interpretation Act 1901. That Act prohibits retrospective regulations which affect rights disadvantageously or impose liabilities. The Attorney-General's Department has concluded that the correction of the wrong cross-references is merely a "tidying-up" exercise and does not substantively affect rights.

Changes

The Regulations amend the incorrect references retrospectively, to apply Determination No. 6 of 1992 with effect from 4 June 1992. This is achieved by replacing the references to Determination 0101 and Determination 0199 in the Principal Regulations with references to Determination No. 6 of 1992.

The effect of the amendment is to correct, with effect from 4 June 1992, the references that provide the basis for the forfeiture of salary by members while undergoing the punishment of detention.

Commencement

The Regulations are taken to have commenced on 4 June 1992.