Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


DEFENCE RESERVE SERVICE (PROTECTION) REGULATIONS 2001 2001 NO. 325

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 325

Issued by the Authority of the Minister for Veterans' Affairs

Defence Reserve Service (Protection) Act 2001

Defence Reserve Service (Protection) Regulations 2001

Subsection 81 (1) of the Defence Reserve Service (Protection) Act 2001 (the Act) provides that the Governor-General may make Regulations prescribing matters required or permitted to be prescribed, or which are necessary or convenient for giving effect to the Act. The Act provides for, among other things, loans and guarantees to be available to returned members.

Part 10 of the Act applies to continuous full time service as a result of a call out. It allows 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. It also provides for the conditions required for loans and guarantees. Access to loans or guarantees are via a "prescribed authority".

The purpose of the Regulations is to facilitate the scheme envisaged by Part 10 of the Act. The Regulations, among other things:

•       establish the Office of Reserve Service Protection as the "prescribed authority";

•       outline the functions of the Office;

•       prescribe the maximum amount of a loan or guarantee; and

•       outline the procedures by which a person may make a complaint about an alleged contravention of the Act.

Details of the Regulations are set out in the Attachment.

This Regulations commenced on gazettal.

ATTACHMENT

DEFENCE RESERVE SERVICE (PROTECTION) REGULATIONS 2001

Part 1 - Introductory

Regulation 1 names the Regulations as the Defence Reserve Service (Protection) Regulations 2001.

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 defines various terms used in the Regulations. For example, the "Office" means the "Office of Reserve Service Protection" and a "call out member" means "a member who has rendered or is rendering continuous full time service as a result of a call out". It relies on the definition section in the Act (section 7) for certain terms including "defence service", "employment" and "member".

Part 2 - Powers and functions of the Office of Reserve Service Protection. Division 1 -Office and its office holders

Regulation 4 provides for the establishment of the Office of Reserve Service Protection (the Office). The Office is controlled by the Director of the Office in accordance with the Regulations. The Office is a prescribed authority for the purposes of Part 10 of the Act.

Regulation 5 establishes the Office of Director of the Office of Reserve Service Protection who is to be appointed (in writing) by the Assistant Chief of the Defence Force (Reserves). The Assistant Chief of the Defence Force (Reserves) is also be able to appoint a person to act as Director during a vacancy in the Office of Director or during any period when the Director is absent or otherwise unable to perform the functions of the Office. A person must be appointed in the Office of Director when there is no person holding or acting the position of Deputy Director. A person holding or acting in the Office of Director is a prescribed person for the purposes of Part 11 of the Act.

Regulation 6 provides for the Office of Deputy Director of the Office of Reserve Service Protection. This regulation mirrors Regulation 5. It requires the Assistant Chief of the Defence Force (Reserves) to appoint a Deputy Director.

Sections 73, 75 and 76 of the Act allow certain actions to be brought by a person where there has been a contravention of provisions of the Act. In particular, it allows a prescribed person (that is the Director or Deputy Director of the Office of Reserve Service Protection) to seek injunctive relief Regulation 7 makes it clear that a certificate signed by an authorised person in relation to a proceeding under sections 73, 75 or 76 of the Act to the effect that a person is the holder of the Office of Director or Deputy Director or a person has been appointed to act in either office, is evidence of that fact.

An authorised person is defined to mean the Secretary to the Department of Defence, the Chief of the Defence Force, the Vice Chief of the Defence Force or the Assistant Chief of the Defence Force (Reserves).

Division 2-Loans and Guarantees to returned call out members

Regulation 8 prescribes the maximum amount of a loan or guarantee allowed under the Regulations. The maximum amount of a loan that the Office may make or a guarantee that the Office may give to a call out member before 1 October 2001 is $500,000. After 1 October 2001 the amount will still be $500,000 but is to be adjusted in accordance with the indexation scheme outlined in Regulation 9.

Regulation 9 sets out the manner by which indexation of loan amounts are to be calculated in accordance with the formula outlined and define terms such as "indexation period" and "index number". "Indexation period" means the 6 month period starting on 1 October 2001 and each subsequent 6 month period. "Index Number" for a quarter means the All Groups Consumer Price Index number (the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.

Regulation 10 provides for the rate of interest on a loan made under Part 10 the Act to be 2% below the Residential-secured Term Lending Rate for Small Business published by the Reserve Bank for the month occurring immediately before the month in which the loan is made.

Regulation 11 specifies the period within which an application must be made by a call out member as being while the member is rendering continuous full time defence service as a result of a call out or within 12 months after he or she stops rendering that service.

Regulation 12 requires a person to provide certain information to the Director about a matter that might affect the grant of a loan to a particular member. Where the Director reasonably believes that a person is capable of providing such information, the Director may give to that person a notice stating

•       the nature of the information that might affect the grant of a loan; and

•       that the person give the information to the Office, in writing, within 14 days after the person receives the notice.

A note indicates that it is an offence to give false or misleading information to a person who is exercising powers or performing functions under a law of the Commonwealth. The penalty for such an offence is imprisonment for 12 months pursuant to Division 137 of the Commonwealth Criminal Code.

Division 3 - Complaints and investigations

Regulation 13 outlines the procedures by which a person may make a complaint about an alleged contravention of the Act. If a complaint is made to the Office orally, the Office may record the complaint in writing or require the complainant to record the complaint in writing. Where a complaint is required in writing and this is not complied with, the Office may decline to consider the complaint or investigate the complaint until the Office receives the written complaint.

Subregulation 13(4) provides for the requirements of a written complaint. These are to -

•       state the nature of the complaint;

•       state the name, postal address, fax number (if any) and e-mail address (if any) of the complainant;

•       be signed by the complainant; and

•       set out any other relevant information that the Office reasonably requires.

Any e-mail correspondence must be capable of being printed in the form in which it was created (subregulation 13(5)). However, substantial compliance with subregulations 13(4) and (5), rather than strict compliance, will be sufficient (subregulation 13(6)). A note is added to the effect that a signature may not be required for a written complaint if the complaint is an electronic communication within the meaning of the Electronic Transactions Act 1999.

Regulation 14 provides for the notification of a complaint. As soon as practicable after receiving a complaint, the Office is required to give a notice stating that the complaint has been received, to the complainant and the person alleged to have contravened the Act. The notice must give details of the complaint and invite the complainant and the person alleged to have contravened the Act to send written submissions to the Office with supporting documents.

Regulation 15 provides for the consideration of complaints. The Office must consider a written complaint and decide whether it is justified and may also consider an oral complaint and decide whether it is justified. When considering a complaint, it is a requirement that the Office take certain things into account such as any written submissions and the results of any investigation into the complaint. Mediation is also an option. At any time after receiving a complaint, the Office may refer the parties to its mediation service pursuant to Regulation 22.

Regulation 16 outlines what the requirements are in relation to the investigation of a complaint. The Office may investigate any complaint unless the Office considers on reasonable grounds that the complaint is frivolous, vexatious or is not being made in good faith. If an investigation has been conducted, then as soon as practicable after it has been completed, the Office is required to give to the complainant and the person alleged to have contravened the Act that a notice that summarises the results of the investigation.

A note is included in relation to regulation 16. Principle 11 of the Privacy Act 1988 sets out the limits on disclosure by a Department or Agency of personal information about an individual in the possession or control of the Department or Agency.

Paragraph 11 (1)(a) allows the Department or agency to disclose information to a person (other than the individual concerned) if the individual concerned is likely to have been aware, or made aware that information of that kind is usually passed to that person. Under paragraph 1 (d) of Principle 11, the Department or Agency may disclose the information to a person (other than the individual concerned) if the disclosure is required or authorised by or under the law.

Regulation 17 provides that if the Office of Reserve Service Protection becomes aware of a possible contravention of the Act, it may investigate the complaint.

Regulation 18 gives the Director of the Office of Reserve Service Protection the power to obtain information and documents that are relevant to an investigation being conducted under the Regulations. If the Director reasonably believes that an employer, partner in a partnership, a principal or an educational institution (referred to as the relevant person) is capable of producing a document or providing information that is relevant to an investigation under the Regulations, he or she may give a notice -

•       requiring the relevant person to give the document to the Director within 14 days after the notice is received; or

•       stating the nature of the information and requiring the relevant person to give the information to the Director in writing within 14 days after the notice is received.

The relevant person must comply with the notice.

Terms such as "employer" and "member" used in this Regulation correspond with the Act.

Regulation 19 makes it an offence to fail to comply with a notice sent pursuant to regulation 18. A penalty of 10 penalty units is provided for. If a person fails to comply with a notice, the Director may be able to draw an adverse inference from that. This Regulation has a note to the effect that it is an offence to give false or misleading information to a person who is exercising powers or performing functions under a law of the Commonwealth. The penalty for such an offence is 12 months imprisonment pursuant to Division 137 of the Commonwealth Criminal Code.

Regulation 20 preserves the privilege against self incrimination where a person is required to give a document or information to the Director under Regulation 18. However, if a person waives his or her rights under the Regulation, then this protection does not apply.

Regulation 21 allows the Office to copy or take extracts and retain documents or information for as long as is necessary for an investigation.

Regulation 22 provides for resolving disputes by mediation. The Office may operate a mediation service to which it may refer parties to a dispute arising between persons whose interests are affected by the Act or the Regulations. The Office must ensure that such a mediation service is staffed by appropriately qualified mediators.

A mediation conference must be conducted as a structured process in which the mediator assists the parties to a dispute by encouraging and facilitating discussion between the parties so that they communicate effectively and devise strategies for resolving the dispute.

The mediator must not give legal advice (except in relation to procedural matters) and must terminate the process if requested to do so by a party or if satisfied that the mediation process is no longer appropriate.

A note added to this Regulation outlines the way a matter may be resolved where mediation fails to resolve the dispute. This includes referral to the Australian Federal Police or the police force of a state or territory where there has been an offence committed in contravention of the Act.

Regulation 23 provides for the giving of information about an investigation to a member or his or her legal representative. Information envisaged by this Regulation is copy of extracts from an investigation report about a possible contravention of the Act that affects the interests of a member and that is reasonably necessary for the purposes of a member making a decision about applying to a Court under the Act. "Member" is defined to mean a person who may volunteer to render defence service.

A note outlines the requirements set out in the Privacy Act 1988 in relation to the disclosure of personal information by a Department or an Agency.

Division 4 - Miscellaneous

Regulation 24 outlines the functions of the Office to be -

•       responding to inquiries about the Act or Regulations;

•       monitoring compliance with the Act and the Regulations;

•       conducting training about the provisions of the Act and the Regulations for the benefit of interested persons;

•       preparing and distributing information about the Act and the Regulations to members, employers and other members of the public; and

•       making recommendations for enhancing the protection provided by the Act and

•       improving the Act or the Regulations in other respects to the Minister.

Furthermore, the Office may financially assist or provide other support to members who apply to a Court under the Act for a remedy.

Regulation 25 provides for the interest rate to be payable on postponed payments under an agreement pursuant to subsection 53(3) of the Act to be 2% below the Residential-secured Term Lending Rate for Small Business published by the Reserve Bank for the month immediately before the month in which the loan is made.

Regulation 26 specifies the interest rate on the payment of postponed rates on land pursuant to subsection 54(3) to be the same rate as that in Regulation 25.


[Index] [Related Items] [Search] [Download] [Help]