Defence Legislation Amendment (First Principles) Act 2015 (164 of 2015)
Schedule 1 Amendment of the Defence Act 1903
Part 1 Amendments
Defence Act 1903
7 Parts II and III
Repeal the Parts, substitute:
Part II - Control and administration
8 The Minister
(1) The Minister has general control and administration of the Defence Force.
Note: Command in chief of the Defence Force is vested in the Governor-General: see section 68 of the Constitution.
(2) In performing and exercising functions and powers under this Part, the Chief of the Defence Force and the Secretary must comply with any directions of the Minister.
9 Command of the Defence Force
(1) The Chief of the Defence Force has command of the Defence Force.
(2) The Chief of the Defence Force must advise the Minister on matters relating to the command of the Defence Force.
(3) The Vice Chief of the Defence Force is to assist the Chief of the Defence Force in the command of the Defence Force.
(4) In so assisting, the Vice Chief of the Defence Force must comply with any directions of the Chief of the Defence Force.
10 Administration of the Defence Force
(1) The Secretary and the Chief of the Defence Force have joint administration of the Defence Force.
(2) The administration of the Defence Force does not include any matter:
(a) falling within the command of the Defence Force; or
(b) specified by the Minister.
(3) The Vice Chief of the Defence Force is to assist with the administration of the Defence Force as directed by the Chief of the Defence Force.
(4) An instrument made under paragraph (2)(b) is not a legislative instrument.
11 Defence Instructions
(1) For the purposes of the administration of the Defence Force, the Secretary and the Chief of the Defence Force together may issue instructions known as Defence Instructions .
(2) A document purporting to be a Defence Instruction, or a copy of a Defence Instruction, is taken to be a Defence Instruction unless the contrary is established.
(3) Despite section 46AA of the Acts Interpretation Act 1901, a Defence Instruction may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
12 Appointments
(1) The Governor-General may, by writing, appoint an officer of an arm of the Defence Force to be Chief of the Defence Force.
(2) The Governor-General may, by writing, appoint an officer of an arm of the Defence Force to be Vice Chief of the Defence Force.
(3) The Chief of the Defence Force and the Vice Chief of the Defence Force hold office for the periods specified in their instruments of appointment.
(4) A person appointed as Chief of the Defence Force or Vice Chief of the Defence Force ceases to hold office if he or she ceases to be an officer of an arm of the Defence Force.
13 Acting appointments
Vice Chief must act as Chief of the Defence Force
(1) The Vice Chief of the Defence Force must act as the Chief of the Defence Force:
(a) during a vacancy in the office of the Chief of the Defence Force; or
(b) during any period, or during all periods, when the Chief of the Defence Force:
(i) is absent from duty; or
(ii) is, for any reason, unable to perform the duties of the office.
Acting Vice Chief of the Defence Force
(2) The Governor-General may, by writing, appoint an officer of an arm of the Defence Force to act as the Vice Chief of the Defence Force:
(a) during a vacancy in the office of the Vice Chief of the Defence Force; or
(b) during any period, or during all periods, when the Vice Chief of the Defence Force:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
14 Resignation
(1) The Chief of the Defence Force or the Vice Chief of the Defence Force may resign his or her appointment by giving the Governor-General a written resignation.
(2) However, the resignation does not have effect unless and until it is accepted by the Governor-General.
15 Termination of appointment
(1) The Governor-General may, on the recommendation of the Prime Minister and by notice in writing, terminate the appointment of the Chief of the Defence Force or the Vice Chief of the Defence Force.
(2) Before recommending to the Governor-General that the appointment be terminated, the Prime Minister must have received a report about the proposed termination from the Minister.
16 Remuneration and allowances
(1) The Chief of the Defence Force and the Vice Chief of the Defence Force are to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, they are to be paid the remuneration that is prescribed by the regulations.
(2) The Chief of the Defence Force and the Vice Chief of the Defence Force are to be paid the allowances determined under Part IIIA.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
Note: The remuneration of the Chief of Navy, the Chief of Army and the Chief of Air Force is also determined by the Remuneration Tribunal. For appointment etc. of service chiefs, see the regulations.
Part III - The Australian Defence Force
Division 1 - Constitution of the Australian Defence Force
17 The Australian Defence Force
The Australian Defence Force (or ADF ) consists of the following arms:
(a) the Royal Australian Navy;
(b) the Australian Army;
(c) the Royal Australian Air Force.
18 Royal Australian Navy
(1) The Royal Australian Navy (or RAN ) consists of:
(a) the Chief of Navy; and
(b) the Permanent Navy; and
(c) the Naval Reserve.
(2) The Permanent Navy consists of:
(a) officers appointed to, and sailors enlisted in, the Permanent Navy; and
(b) members of the Defence Force transferred to the Permanent Navy.
(3) The Naval Reserve consists of:
(a) officers appointed to, and sailors enlisted in, the Naval Reserve; and
(b) members of the Defence Force transferred to the Naval Reserve.
19 Australian Army
(1) The Australian Army consists of:
(a) the Chief of Army; and
(b) the Regular Army; and
(c) the Army Reserve.
(2) The Regular Army consists of:
(a) officers appointed to, and soldiers enlisted in, the Regular Army; and
(b) members of the Defence Force transferred to the Regular Army.
(3) The Army Reserve consists of:
(a) officers appointed to, and soldiers enlisted in, the Army Reserve; and
(b) members of the Defence Force transferred to the Army Reserve.
20 Royal Australian Air Force
(1) The Royal Australian Air Force (or RAAF ) consists of:
(a) the Chief of Air Force; and
(b) the Permanent Air Force; and
(c) the Air Force Reserve.
(2) The Permanent Air Force consists of:
(a) officers appointed to, and airmen enlisted in, the Permanent Air Force; and
(b) members of the Defence Force transferred to the Permanent Air Force.
(3) The Air Force Reserve consists of:
(a) officers appointed to, and airmen enlisted in, the Air Force Reserve; and
(b) members of the Defence Force transferred to the Air Force Reserve.
21 Ranks and corresponding ranks
The ranks and corresponding ranks of members of the Defence Force (other than chaplains) are set out in Schedule 1.
Division 2 - Service in the Defence Force
22 Voluntary entry
(1) Members of the Defence Force must be persons who volunteer and are accepted for service in the Defence Force.
(2) Subsection (1) has effect subject to Part IV and any other Act.
23 Service in the Permanent Forces
(1) Members of the Permanent Forces are bound to render continuous full time service.
Note: Permanent Forces means the Permanent Navy, the Regular Army and the Permanent Air Force: see subsection 4(1).
Flexible service determinations
(2) The requirement to render continuous full time service does not prevent the Chief of the Defence Force determining hours of duty or periods of duty for a member of the Permanent Forces under a flexible service determination .
(3) A flexible service determination:
(a) must be in writing; and
(b) may be revoked or varied by the Chief of the Defence Force at any time; and
(c) has effect subject to any terms and conditions (the flexible service terms and conditions ) set out in the determination.
(4) Flexible service terms and conditions may relate to remuneration, allowances, availability for duty outside the hours of duty or periods of duty set out in the determination or any other relevant matter.
(5) A flexible service determination is not a legislative instrument.
24 Service in the Reserves
A member of the Reserves is not bound to render continuous full time service unless the member:
(a) is involved in a period of training that requires continuous full time service; or
(b) is required to render continuous full time service after volunteering to do so (see section 26); or
(c) is called out under Division 3 of this Part or Division 1 of Part IV.
Note: Reserves means the Naval Reserve, the Army Reserve and the Air Force Reserve: see subsection 4(1).
25 Training for Reserves
Members of the Reserves must render service during training periods in accordance with the regulations.
26 Volunteer service by Reserves
(1) A member of the Reserves may volunteer to render the following for a period or periods specified by the member:
(a) continuous full time service;
(b) service other than continuous full time service.
(2) The Chief of the Defence Force may accept some or all of the service.
(3) The member is bound to render the service accepted by the Chief of the Defence Force.
27 Service is not a civil contract
No civil contract of any kind is created with the Crown or the Commonwealth in connection with a member's service in the Defence Force.
Division 3 - Calling out the Reserves
28 Governor-General may call out Reserves
(1) The Governor-General may, by call out order published in the Gazette, call out some or all of the Reserves for continuous full time service.
(2) A call out order is not a legislative instrument.
Circumstances for call out order
(3) However, a call out order may only be made in circumstances (whether within or outside Australia) involving one or more of the following:
(a) war or warlike operations;
(b) a time of defence emergency;
(c) defence preparation;
(d) peacekeeping or peace enforcement;
(e) assistance to Commonwealth, State, Territory or foreign government authorities and agencies in matters involving Australia's national security or affecting Australian defence interests;
(f) support to community activities of national or international significance;
(g) civil aid, humanitarian assistance, medical or civil emergency or disaster relief.
Advice to Governor-General
(4) In making or revoking a call out order, the Governor-General is to act with the advice of:
(a) the Executive Council; or
(b) if, after the Minister has consulted the Prime Minister, the Minister is satisfied that, for reasons of urgency, the Governor-General should act with the advice of the Minister alone - the Minister.
When call out order takes effect
(5) A call out order takes effect on:
(a) the day specified in the order; or
(b) if no day is specified - the day on which the order is published in the Gazette.
When revocation takes effect
(6) A revocation of a call out order takes effect on:
(a) the day specified in the revocation; or
(b) if no day is specified - the day on which the revocation is published in the Gazette.
Effect of revocation
(7) To avoid doubt, if a call out order is revoked the call out under that order ends.
Further orders
(8) The making of a call out order in relation to particular circumstances does not prevent the making of further call out orders in relation to those circumstances.
29 Period of service during call out
Period specified by Chief of the Defence Force
(1) A member of the Reserves covered by a call out order is bound to render continuous full time service for the period specified in writing by the Chief of the Defence Force.
Length of period
(2) The period of service:
(a) must start on the day on which the call out order takes effect; and
(b) may be indefinite or limited.
(3) Unless it ends earlier, and despite any specification by the Chief of the Defence Force, the period ends on the day on which the call out ends.
Further periods
(4) The specification of a period under a call out order does not prevent the specification of further periods under the call out order.
Other continuous full time service not affected
(5) This section does not limit a requirement to render continuous full time service otherwise than under this section.