Commonwealth Numbered Regulations - Explanatory Statements
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MILITARY JUSTICE (INTERIM MEASURES) (REMUNERATION AND ENTITLEMENTS) REGULATIONS 2011 (SLI NO 90 OF 2011)
EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 90
Issued by the authority of the Minister for Defence
Military Justice (Interim Measures) Act (No.1) 2009
Military Justice (Interim Measures)(Remuneration and Entitlements) Regulations 2011
Schedule 4, Item 2 of the Military Justice (Interim Measures) Act (No.1) 2009 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulations resolve some discrepancies in the remuneration arrangements of certain statutory office holders following the High Court of Australia decision of Lane v Morrison [2009] HCA 29 (Lane v Morrison decision) and the operation of certain provisions of the Act. The Regulations apply relevant salary adjustments to these positions.
On 1 October 2007, the Australian Military Court (AMC) commenced operation. The AMC comprised a Chief Military Judge (CMJ), Military Judges (MJ) (and the Registrar of the Australian Military Court (RAMC)). Then Part XI of the Defence Force Discipline Act 1982 (DFDA) provided for, among other things, the remuneration arrangements for these positions as determined by the Remuneration Tribunal (the Tribunal). The provisions in the DFDA which established and supported the AMC were declared invalid in the Lane v Morrison decision. It also called into question the validity of the positions of the CMJ, MJ and RAMC, including their purported terms and conditions provided for by Tribunal Determination. As a result, the previous system of trials by Court martial or Defence Force magistrate was reinstated.
The positions of Chief Judge Advocate (CJA), judge advocate (JA) and Registrar of Military Justice (RMJ) were reintroduced and the CMJ, MJ and RAMC were taken to have been appointed as the CJA, JA and RMJ respectively, on the same terms and conditions that applied to them before the Lane v Morrison decision (contained in Tribunal Determination 2008/09, 5 June 2008). The Act provides that any variations to the remuneration arrangements for these positions are to be prescribed by Regulation.
Subsequent Tribunal Determinations adjusted all judicial and related statutory office holders' remuneration (2009/17, 1 October 2009 and 2010/12, 1 August 2010). The positions would have been awarded the increases consistent with the Determinations, but for the Lane v Morrison decision and the Act. The adjustments in the 2009/17 Determination were not applied to the CJA and JA, but the 2010/12 Determination purportedly applied the increase to the CJA.
However, the Act provides that the remuneration and allowances to which these positions are entitled are only those that are contained in Tribunal Determination 2008/09 Judicial and Related Offices - Remuneration and Allowances; any subsequent Determinations are not applicable and any adjustments to the remuneration and allowances of the CJA and JA positions can only be prescribed by Regulation.
The Military Justice (Interim Measures)(Remuneration and Entitlements) Regulations 2011 (the Regulations) apply the remuneration adjustments for the CJA and JA retrospectively. The retrospective operation of the Regulations will not offend 'Principle B' of the Senate Standing Committee on Regulations and Ordinances Principles that 'retrospectivity should not disadvantage any one except the Commonwealth'. The Regulations have a beneficial retrospective application.
Details of the Regulations are contained in the Attachment.
The Act does not specify any conditions that need to be met before the power to make the Regulations may be exercised.
After consulting the Office of Best Practice Regulation in respect of the need for, and preparation of, a Regulation Impact Statement, it advised that a Regulation Impact Statement was not required (OPBR reference 12430, 11 March 2011), as there were no regulatory impacts on business or the not-for-profit sector made by the Regulations.
Apart from the Remuneration Tribunal, no consultations were necessary because the amendments do not have any potential implications relating to other government departments or agencies or non-government organisations.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced with effect from 1 October 2009. This is the effective date of Tribunal Determination 2009/17 which would have applied to the positions but for the Lane v Morrison decision and the operation of the Act.
1019250A
Attachment
Details of the Military Justice (Interim Measures)(Remuneration and Entitlements) Regulations 2011
Regulation 1 - Name of Regulations
Regulation [1] identifies these Regulations as the Military Justice (Interim Measures)(Remuneration and Entitlements) Regulations 2011(the Regulations).
Regulation 2 - Commencement
Regulation [2] provides that the Regulations commenced on 1 October 2009.
Regulation 3 - Definitions
Regulation 3 defines the Act to mean the Military Justice (Interim Measures) Act (No.1) 2009.
Regulation 4 - Remuneration for Chief Judge Advocate
Regulation 4 refers the reader to paragraph 2 (4) (a) of the Act which appoints the Chief Military Judge (CMJ) as the Chief Judge Advocate (CJA). The Note to this regulation also provides that the CJA is appointed on the same terms and conditions which applied before the Lane v Morrison decision, that is, the Remuneration Tribunal Determination 2008/09: Judicial and Related Offices - Remuneration and Allowances.
Subregulations 4 (2) and (3) outline the total remuneration and base salary of the CJA. Subregulation 4 (4) provides that any other terms and conditions which applied before the Lane v Morrison decision are unaffected by this regulation. This ensures that earlier Remuneration Tribunal Determinations which determine, for example, allowances and recreation leave, continue to apply.
Regulation 5 - Remuneration for judge advocate's panel
Regulation 5 is, except for the amounts of total remuneration and base salary, in identical terms to regulation 4. However, it applies to a member of the judge advocate's panel, appointed by virtue of paragraph 4 (3) (b) of the Act. The total remuneration and base salary is as outlined in the provision.
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