Defence Legislation Amendment Act 1992
No. 91 of 1992
An Act to amend legislation relating to defence, and for related purposes
[Assented to 30 June 1992]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title
1. This Act may be cited as the Defence Legislation Amendment Act 1992.
Commencement
2.(1) The provisions of this Act, other than sections 13 and 14, commence on the day on which this Act receives the Royal Assent.
(2) Sections 13 and 14 commence on a day to be fixed by Proclamation.
(3) If sections 13 and 14 do not commence within the period of 6 months commencing on the day on which this Act receives the Royal Assent, they commence at the end of that period.
PART 2—AMENDMENTS OF THE DEFENCE ACT 1903
Principal Act
3. In this Part, “Principal Act” means the Defence Act 19031.
Interpretation
4. Section 4 of the Principal Act is amended:
(a) by inserting in subsection (1) the following definitions:
“ ‘AAT’ means the Administrative Appeals Tribunal;
‘AAT Act’ means the Administrative Appeals Tribunal Act 1975;
‘Conscientious Objection Tribunal’ means a Conscientious Objection Tribunal established under section 61CF;
‘exemption from service because of conscientious beliefs’ means exemption from service under paragraph 61A(1)(h) or (i) or exemption from combatant duties under subsection 61A(1A);
‘Federal Court’ means the Federal Court of Australia;”;
(b) by inserting at the end the following subsection:
“(3) For the purposes of Part IV, a person is taken to have a conscientious belief in relation to a matter if the person’s belief in respect of that matter:
(a) involves a fundamental conviction of what is morally right and morally wrong, whether or not based on religious considerations; and
(b) is so compelling in character for that person that he or she is duty bound to espouse it; and
(c) is likely to be of a long standing nature.”.
Insertion of heading
5. Before section 59 there is inserted in Part IV the following heading:
“Division 1—Liability to serve”.
Persons liable to serve in Defence Force in time of war
6. Section 59 of the Principal Act is amended:
(a) by omitting “male”;
(b) by adding at the end of paragraph (a) “and”;
(c) by omitting paragraph (b).
Proclamation calling upon persons to serve in time of war
7. Section 60 of the Principal Act is amended by omitting subsections (2), (3), (4) and (5) and substituting the following subsections:
“(2) A Proclamation under this section must call on persons in the order in which they are included in classes established for the purposes of this subsection under subsection (3).
“(3) The regulations may establish a series of classes of persons for the purposes of subsection (2).
“(4) A Proclamation must be laid before each House of the Parliament before, but not more than 90 days before, the day on which it is expressed to come into effect.
“(5) A Proclamation does not come into effect unless, within the period of 90 days before it is expressed to come into effect, it is approved, by resolution, by each House of the Parliament.”.
Registration and allotment for service
8. Section 61 of the Principal Act is amended:
(a) by omitting paragraphs (1)(d) and (e);
(b) by omitting subsection (2).
Persons exempt from service
9. Section 61A of the Principal Act is amended:
(a) by omitting from subsection (1) “or status” and substituting “, status, belief, or other reason stated in regulations made for the purposes of paragraph (j),”;
(b) by omitting from paragraph (1)(f) “and”;
(c) by omitting from paragraph (1)(g) “as prescribed.”, and substituting “as prescribed;”;
(d) by adding at the end of subsection (1) the following paragraphs:
“(h) persons whose conscientious beliefs do not allow them to participate in war or warlike operations;
(i) persons whose conscientious beliefs do not allow them to participate in a particular war or particular warlike operations; and
(j) persons who, for a reason stated in the Regulations, are declared by the Regulations to be exempt from service in the Defence Force in time of war.”;
(e) by inserting after subsection (1) the following subsection:
“(1A) Persons whose conscientious beliefs do not allow them to engage in duties of a combatant nature (either generally or during a particular war or particular warlike operations) are not exempt from, disability to serve in the Defence Force in time of
war but are exempt from such duties while members of the Defence Force as long as those beliefs continue.”.
Part not to apply to certain persons
10. Section 61C of the Principal Act is omitted and the following section is substituted:
“61C. Nothing in this Part applies to:
(a) a person whose presence in Australia is occasioned solely by his or her employment in the service of a government outside Australia; or
(b) a prescribed official of any international organisation; or
(c) a member of the Defence Force.”.
Insertion of new Divisions
11. After section 61C the following Divisions are inserted:
“Division 2—Determination of conscientious belief
Application for determination of conscientious belief
“61CA.(1) A person who claims to be exempt from service because of conscientious beliefs must, within 7 days after he or she is called on for service under section 60 apply to the Secretary, in writing, to have his or her claim determined by a Conscientious Objection Tribunal.
“(2) At any time after a Tribunal has made a determination that a person is or is not exempt from service because of conscientious beliefs either the applicant for that determination or the Commonwealth may apply to the Secretary, in writing, to have a Tribunal set aside the previous determination and, where appropriate, make a new determination in substitution for it on the grounds of a change in circumstances.
Secretary must refer application
“61CB. If the Secretary receives an application under subsection 61CA(1) or (2), the Secretary must refer the application to a Conscientious Objection Tribunal for determination.
Function of Conscientious Objection Tribunals
“61CC.(1) The function of a Conscientious Objection Tribunal is to determine, following an application that is referred to it by the Secretary, whether the person to whom the application related is exempt from service because of conscientious beliefs.
“(2) Subject to this Part, a determination under subsection (1) is final and binding for all purposes.
Parties to the hearing of an application
“61CD. In this Part, the parties to the hearing of an application by a Conscientious Objection Tribunal arc the applicant and the Commonwealth.
Notice of determination to be given to parties
“61CE.(1) If a Conscientious Objection Tribunal makes a determination it must notify the parties of the result of the determination as soon as possible.
“(2) A Tribunal must give the parties a statement in writing of the reasons for its determination within 28 days of making that determination.
“Division 3—Establishment and membership of Conscientious Objection Tribunals
Establishment of Conscientious Objection Tribunals
“61CF.(1) The Minister may, by notice in the Gazette, establish such Conscientious Objection Tribunals as he or she thinks necessary for the purposes of this Part.
“(2) Each Tribunal is to comprise:
(a) a presiding member; and
(b) 2 other members.
“(3) Members are to be appointed in writing by the Minister and may be appointed as either full-time or part-time members.
“(4) A person is not to be appointed as a presiding member of a Tribunal unless he or she is a legal practitioner of not less than 7 years standing.
“(5) A person is not to be appointed as another member of a Tribunal unless the Minister is satisfied that he or she is capable, by reason of training or experience, of ascertaining facts other than by adversarial procedures.
Period of appointment of members
“61CG. Members are to hold office for such period, not exceeding 5 years, as is specified in the instrument of appointment.
Remuneration and allowances of members
“61CH.(1) Members arc to be paid:
(a) such remuneration as is determined by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
“(2) If no determination of the remuneration of members by the Remuneration Tribunal is in operation, members are to be paid such remuneration as is prescribed.
“(3) This section has effect subject to the Remuneration Tribunal Act 1973.
Other terms and conditions
“61CJ. A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Part as are determined by the Minister in writing.
Leave of absence
“61CK. The Minister may grant leave of absence to a member on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.
Resignation
“61CL. A member may resign in writing signed by him or her and sent to the Minister.
Removal from office
“61CM. The Minister may remove a member from office for proved misbehaviour or physical or mental incapacity.
Member of a Tribunal unavailable to complete proceeding
“61CN.(1) If the hearing of an application has been commenced or completed by a Conscientious Objection Tribunal but, before the proceeding has been determined, one of the members constituting the Tribunal for the purposes of the application has:
(a) ceased to be a member; or
(b) ceased to be available for the purposes of the application; the following provisions have effect:
(c) if the member concerned is a member other than a member appointed as a presiding member—the hearing and determination, or the determination, of the application may be completed by the Tribunal constituted by the remaining 2 members;
(d) in any other case—the proceeding must be reheard by another Tribunal.
“(2) If an application that was being dealt with by one Tribunal is reheard by another Tribunal, that other Tribunal may, for the purposes of that application, have regard to any record of the proceedings before the first-mentioned Tribunal.
“(3) The reference in subsection (2) to a record of proceedings includes a reference to a record of any evidence taken in the proceeding.
Acting appointments
“61CO.(l) The Minister may appoint a person to act as a full-time member of a Conscientious Objection Tribunal during any period, or during all periods, when the member is absent from duty or from Australia or is, for any reason, unable to perform the duties of the member’s office.
“(2) The Minister may appoint a person to act as a part-time member of a Tribunal during any period, or during all periods, when the member is, for any reason, unable to perform the duties of the member’s office.
“(3) Where a person has been appointed under subsection (1) or (2), the Minister may direct that the person is to continue to act in the appointment after the normal terminating event occurs.
“(4) A direction under subsection (3) must specify the period during which the person may continue to act in the appointment.
“(5) The period specified under subsection (4) may be specified by reference to the happening of a particular event or the existence of particular circumstances.
“(6) A direction under subsection (3):
(a) is to be given only if there is a pending determination or other special circumstances justifying the giving of the direction; and
(b) may only be given before the normal terminating event occurs.
“(7) A person continuing to act under a direction under subsection (3) must not continue to act for more than 12 months after the normal terminating event occurs.
“(8) If a Tribunal includes a person acting or purporting to act under an appointment under this section, any decision of, or any direction given or any other act done by, the Tribunal is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
“(9) Anything done by or in relation to a person purporting to act under an appointment under this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
“(10) For the purposes of this section, the normal terminating event for an appointment under subsection (1) or (2) is:
(a) if the appointment is made under subsection (1)—the member ceasing to be absent or ceasing to be unable to perform the duties of the member’s office; or
(b) if the appointment is made under subsection (2)—the member ceasing to be unable to perform the duties of the member’s office.
“Division 4—Procedures of Conscientious Objection Tribunals
Tribunals’ way of operating
“61CP. A Conscientious Objection Tribunal, in carrying out its functions under this Part:
(a) must provide procedures which are informal, quick, fair, just and economical; and
(b) must act according to substantial justice and the merits of the case; and
(c) is not bound by technicalities, legal forms or rules of evidence.
Powers of tribunals
“61CQ. For the purposes of making a determination, a Conscientious Objection Tribunal may:
(a) take evidence on oath or affirmation; and
(b) summon a person to appear before it to give evidence; and
(c) summon a person to produce to it such documents as are referred to in the summons; and
(d) require a person appearing before it to give evidence either to take an oath or to make an affirmation that the evidence that the person will give will be true.
Procedure of Tribunals
“61CR.(1) The presiding member of a Conscientious Objection Tribunal may convene such hearings of the Tribunal as he or she thinks necessary for the performance of its functions.
“(2) The presiding member is to preside at all hearings of the Tribunal.
“(3) A Tribunal must keep records of its hearings.
Majority decision
“61CS. A question before a Conscientious Objection Tribunal on an application for a determination is to be decided according to the opinion of a majority of the members of the Tribunal.
Procedure where opinion of members equally divided
“61CT. If:
(a) an application is referred to a Conscientious Objection Tribunal for a determination; and
(b) section 61CS does not apply to a question before the Tribunal on the application;
the question is to be decided according to the opinion of the member presiding.
Hearings
“61CU.(1) Subject to this section, a Conscientious Objection Tribunal is to take oral evidence in public.
“(2) If a Tribunal is satisfied that it is necessary, in the interests of determining a matter which is before it, the Tribunal may direct that oral evidence is to be taken in private.
“(3) If a Tribunal makes a direction under subsection (2), it may give directions as to the persons who may be present when the oral evidence is given.
“(4) If a Tribunal is satisfied that it would be difficult for a person to give oral evidence, the Tribunal may accept a written statement from that person.
“(5) An applicant may be assisted in presenting his or her case by another person, whether or not that person is a lawyer.
Onus of proof
“61CV.(1) In proceedings before a Conscientious Objection Tribunal the onus of proving exemption from service because of conscientious belief rests with an applicant.
“(2) Such onus is to be discharged on the balance of probabilities.
Protection of members and persons giving evidence etc.
“61CW.(1) A member of a Conscientious Objection Tribunal has, in the performance of his or her duties as a member, the same protection and immunity as a Judge of the Federal Court.
“(2) Subject to this Part, an applicant, a person summoned to attend, or appearing, before a Conscientious Objection Tribunal to give evidence, a person representing the Commonwealth or a person who assists an applicant at a hearing, has the same protection and is, in addition to the penalties provided by this Part, subject to the same liabilities, as a witness in proceedings in the Federal Court.
Fees for persons giving evidence
“61CX.(1) A person, other than the applicant, summoned to appear before a Conscientious Objection Tribunal to give evidence is entitled to be paid, in respect of his or her attendance, fees, and allowances for
expenses, ascertained in accordance with a determination under subsection (2).
“(2) The Minister may determine the amounts of fees and allowances to be paid under subsection (1).
“(3) A determination under subsection (2) must be in writing and is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
“(4) The fees and allowances referred to in subsection (1) are to be paid by the Commonwealth.
Failure of witness to attend
“61CY. A person who has been served under paragraph 61CQ(b) with a summons to appear before a Conscientious Objection Tribunal to give evidence and tendered reasonable expenses must not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to appear and report from day to day unless excused, or released from further attendance, by a member.
Penalty: Imprisonment for 6 months.
Refusal to be sworn or to answer questions etc.
“61CZ.(1) A person must not, without reasonable excuse, refuse or fail to produce a document that a person is required to produce by a summons under paragraph 61CQ(c) served on the person.
“(2) A person appearing before a Conscientious Objection Tribunal to give evidence must not, without reasonable excuse:
(a) when required under paragraph 61CQ(d) either to take an oath or to make an affirmation—refuse or fail to comply with that requirement; or
(b) refuse or fail to answer a question that the person is required to answer by the presiding member.
“(3) A person appearing before a Conscientious Objection Tribunal to give evidence must not knowingly give evidence that is false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
Contempt of Tribunal
“61CZA. A person must not:
(a) obstruct or hinder a Conscientious Objection Tribunal, or a member of such a tribunal, in the performance of the functions of the Tribunal; or
(b) disrupt the taking of evidence by a Conscientious Objection Tribunal.
Penalty: Imprisonment for 12 months.
“Division 5—Reviews and appeals
Review of determinations of Conscientious Objection Tribunals
“61CZB. A party to a determination by a Conscientious Objection Tribunal may apply to the AAT for review of that determination.
AAT Act to apply subject to modification
“61CZC.(1) The AAT Act applies in relation to the review of a determination of a Conscientious Objection Tribunal subject to the modifications set out in this section.
“(2) Section 30 of the AAT Act applies in relation to such a review as if it read as follows:
Parties to proceedings before Tribunal
‘30. The parties to a proceeding before the AAT for a review of a determination of a Conscientious Objection Tribunal are:
(a) the person in relation to whom the determination was made; and
(b) the Commonwealth.’.
“(3) Sections 30A, 31, 44 and 44A of the AAT Act do not apply in relation to such a review.
“(4) Subsection 46(1) of the AAT Act applies in relation to such a review as if the words preceding paragraph (a) of that subsection read as follows:
‘(1) When a question of law is referred to the Federal Court of Australia in accordance with section 45:’.
Appeals from AAT
“61CZD.(1) A party to a decision by the AAT:
(a) may appeal from the decision to the Federal Court on a ground involving a question of law only; and
(b) may, with the leave of the Federal Court, appeal from the decision to that Court on any other ground.
“(2) An appeal, or an application for leave to appeal, by a person under subsection (1) must be instituted:
(a) within 28 days after the day on which the document setting out the terms of the decision of the AAT is given to the person or within such further time (whether before or after the end of that period) as the Federal Court allows; and
(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.
“(3) The Federal Court has jurisdiction to hear and determine appeals, and applications for leave to appeal, instituted in the Court in
accordance with subsection (2) and that jurisdiction must be exercised by the Court constituted as a Full Court.
“(4) The Federal Court:
(a) must hear and determine the appeal; and
(b) may affirm, vary or set aside the order of the AAT; and
(c) may give such judgment, or make such order, as in all the circumstances it thinks fit, or refuse to make an order; and
(d) may remit the case for rehearing and determination, either with or without the hearing of further evidence, by the AAT.
Operation etc. of decision subject to appeal
“61CZE.(1) Subject to this section, the institution of an appeal to the Federal Court from a decision of the AAT does not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the decision.
“(2) If an appeal is instituted in the Federal Court from a decision of the AAT, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.
“(3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of, either or both of the following:
(a) the decision of the AAT or a part of that decision;
(b) the decision to which the proceeding before the AAT related or a part of that decision.
“(4) The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).
“(5) An order in force under subsection (2):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i) where a period for the operation of the order is specified in the order—the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or
(ii) where no period is so specified—the giving of a decision on the appeal.”.
PART 3—AMENDMENTS OF THE DEFENCE FORCE (HOME LOANS ASSISTANCE) ACT 1990
Principal Act
12. In this Part, “Principal Act” means the Defence Force (Home Loans Assistance) Act 19902.
Definitions
13. Section 3 of the Principal Act is amended:
(a) by inserting “was or” before “is payable” in the definition of “compensable disability”;
(b) by omitting the definition of “incapacitated person” and substituting the following definition:
“ ‘incapacitated person’ means:
(a) a person who on or after the commencing day, is discharged from the Defence Force because of a compensable disability; or
(b) a person:
(i) whose first service in the Defence Force began after 14 May 1985; and
(ii) who is not covered by paragraph (ga) of the definition of ‘Australian Soldier’ in subsection 4(1) of the DSH Act; and
(iii) who before the commencing day, was discharged from the Defence Force because of a compensable disability;
and who immediately before the discharge:
(c) had been a non-DSH member engaged or appointed for a period that would have allowed the person to complete at least 6 years of effective full-time service; and
(d) had completed less than 16 years of effective full-time service;”.
When do former members stop being eligible members?
14. Section 4 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:
“(1) An eligible person who is not a member stops being an eligible person:
(a) if he or she is not an incapacitated person referred to in paragraph (b) of the definition of ‘incapacitated person’ in section 3—at the end of 2 years after the day on which his or her resignation, retirement or discharge from the Defence Force took effect; or
(b) if he or she is such an incapacitated person—at the end of
2 years after the commencement of section 14 of the Defence Legislation Amendment Act 1992.”.
Cancellation, variation or revocation of certificate
15. Section 13 of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:
“(2) If the Secretary is satisfied that a certificate issued to a person by the Secretary contains an error or omission, the Secretary may, by notice in writing:
(a) vary the certificate; or
(b) revoke the certificate and substitute another;
and, where the Secretary does so, the varied or substituted certificate has effect as if it had been issued at the time the original certificate was issued.
“(3) If the Secretary cancels a certificate under subsection (1), the Secretary must give a copy of the notice of cancellation to the Bank.
“(4) If the Secretary varies a certificate, or revokes a certificate and substitutes another, under subsection (2), the Secretary must give copies of the notice of variation or of the notice of revocation and substitution, as the case requires, to the person concerned and to the Bank.”.
PART 4—AMENDMENTS OF OTHER DEFENCE LEGISLATION
Amendments of other Acts
16. The Acts specified in Schedule 1 are amended in the manner specified in that Schedule.
PART 5—REPEAL OF ACTS
Repeal of Acts etc.
17.(1) The Acts specified in Schedule 2 are repealed.
(2) Despite the repeal of the National Service Act 1951, the provisions of the various Acts specified in Schedule 3 that are specified in that Schedule in relation to those Acts continue to apply as if the National Service Act 1951 had not been repealed.
SCHEDULE 1 Section 16
AMENDMENTS OF OTHER DEFENCE LEGISLATION
Defence Force Retirement and Death Benefits Act 1973
Subsection 9(8):
Omit the subsection, substitute:
“(8) In the absence of an ordinary member, that is to say, a member other than the Chairman or the Deputy Chairman, from a meeting of the Authority, the deputy of that ordinary member may attend the meeting and is to be taken, while so attending, to have all the powers and functions of an ordinary member.”.
Subsection 14(3):
After “the Chairman” insert “or his or her deputy”.
Defence Forces Retirement Benefits Act 1948
Subsection 4(1):
Omit the definitions of “prescribed authority of the Commonwealth”, “the Board” and “the Fund”.
Subsection 4(3):
Omit “sections 40 and 42,”.
Subsection 4(4):
Omit “sections 40 and 42,”.
Subsection 13(2):
Omit the subsection.
Part III:
Omit the Part, substitute the following section:
Benefits to be paid by Commonwealth after 1 October 1972
“15D. Any instalment of pension or any other benefit that became or becomes payable under this Act on or after 1 October 1972 must be paid by the Commonwealth and the Consolidated Revenue Fund is appropriated accordingly.”.
Heading to Part IV:
Omit the heading.
Headings to Divisions 1, 3, 4 and 5 of Part IV:
Omit the headings.
SCHEDULE 1—continued
Sections 23, 27 to 37 (inclusive), 40, 42, 42A, 49, 56A, 59 and 60A:
Omit the sections.
Part VIA:
Omit the Part.
First Schedule:
Omit the Schedule.
Defence Housing Authority Act 1987
Paragraph 12(1)(b):
Omit “3” (wherever occurring), substitute “4”.
Military Superannuation and Benefits Act 1991
Subsection 47(1):
(a) Omit paragraph (a), substitute:
“(a) a trustee (including the Chairperson) or an acting trustee (including an acting Chairperson) in the performance of his or her functions under the Trust Deed; or”.
(b) After paragraph (c), insert the following word and paragraphs:
“or (d) a member of an Incapacity Classification Committee established under the Rules; or
(e) a member of a Reconsideration Advisory Committee established under the Rules;”.
SCHEDULE 2 Subsection 17(1)
REPEAL OF ACTS
National Service Act 1951
National Service Act (No. 2) 1951
National Service Act 1953
National Service Act 1957
National Service Act (No. 2) 1957
National Service Act 1964
National Service Act 1965
National Service Act 1968
National Service Act 1971
National Service Termination Act 1973
SCHEDULE 3 Subsection 17(2)
PROVISIONS UNAFFECTED BY REPEAL OF NATIONAL SERVICE ACT 1951
Defence Forces Retirement Benefits Act 1948
Section 4AA.
Long Service Leave (Commonwealth Employees) Act 1976
Subsection 12(10).
Public Service Act 1922
Subsection 7(1), definition of “national service”.
NOTES
2. No. 14, 1991.
[Minister’s second reading speech made in—
House of Representatives on 26 February 1992
Senate on 1 April 1992]