I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.
Dated 15 September 2016
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Dan Tehan
Minister for Defence Personnel
Contents
Part 1—Introduction
1 Name
2 Commencement
3 Authority
4 Schedules
5 Definitions
Part 2—Army and Air Force Canteen Service Board of Management
Division 1—Establishment and constitution
6 Establishment
7 Constitution
8 Functions and powers
9 Membership
Division 2—Terms and conditions of Board members
10 Appointment
11 Term of appointment
12 Remuneration
13 Leave of absence
14 Resignation
15 Termination of appointment
Division 3—Board meetings
16 Holding meetings
17 Presiding at meetings
18 Quorum
19 Voting at meetings
20 Deputy members
Division 4—Miscellaneous
Subdivision A—Committees
21 Committees
22 Remuneration of Committee members
Subdivision B—Delegation
23 Delegation
Part 3—Army and Air Force Canteen Service
Division 1—Conduct of the Canteen Service
24 How the Canteen Service is to be conducted
25 Managing Director of the Canteen Service
26 Staff of Canteen Service
Division 2—Finance and reporting requirements
Subdivision A—Provisions relating to finance
27 Finance
28 Borrowing
Section 1 - Army and Air Force (Canteen) Regulation 2016 - Army and Air Force (Canteen) Regulation 2016 | Zoe
29 Application and investment of money
30 Restrictions on contracts
31 Distribution of profits
Subdivision B—Reporting requirements
32 Annual report
Part 4—Miscellaneous
Division 1—Application of other laws
33 Taxation laws
34 Exemption from laws relating to the supply of liquor
35 Licences
Division 2—Delegations
36 Delegation—Minister
Part 5—Application, savings and transitional provisions
37 Definitions
38 Savings—appointments
39 Savings—Board orders and instructions
40 Savings—Minister’s policy guidelines and directions etc.
41 Savings—staff of Canteen Service
42 Savings—licences
43 Savings—delegations
Schedule 1—Repeals
Army and Air Force Canteen Service Regulations 1959
Part 1—Introduction
1 Name
This is the Army and Air Force (Canteen) Regulation 2016.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
The whole of this instrument 1 October 2016. 1 October 2016
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under the Defence Act 1903.
4 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
5 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) ADF Cadets;
(b) Australian Defence Force;
(c) Chief of the Defence Force.
In this instrument:
Army or Air Force installation means any Army or Air Force unit, area, camp, barracks, fort, post, base or Command Headquarters.
Board means the Army and Air Force Canteen Service Board of Management continued in existence by section 6.
Board member means a person appointed under subsection 9(1) and the Managing Director.
Canteen Service means the Army and Air Force Canteen Service referred to in subsection 24(1).
Chair means the Chair of the Board.
Deputy Chair means the Deputy Chair of the Board.
Finance Minister means the Minister who administers the PGPA Act.
Managing Director means the Managing Director of the Canteen Service.
PGPA Act means the Public Governance, Performance and Accountability Act 2013.
Part 2—Army and Air Force Canteen Service Board of Management
Division 1—Establishment and constitution
6 Establishment
The Army and Air Force Canteen Service Board of Management established by subregulation 9(1) of the Army and Air Force Canteen Service Regulations 1959, as in force immediately before 1 October 2016, is continued in existence by force of this section.
Note: See also section 25B of the Acts Interpretation Act 1901.
7 Constitution
(1) The Board:
(a) is a body corporate with perpetual succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
Note: The PGPA Act applies to the Board. That Act deals with matters relating to Commonwealth entities, including reporting and the use and management of public resources.
(2) All courts, judges and persons acting judicially must:
(a) take judicial notice of the imprint of the Board’s seal appearing on a document; and
(b) presume that the document was duly sealed.
8 Functions and powers
(1) To further the purposes of the Canteen Service, the Board has the following functions:
(a) to purchase, lease, hire or otherwise acquire property;
(b) to sell goods and merchandise;
(c) to supply and provide services, entertainment and other amenities, either directly or through committees;
(d) to accept gifts and donations of money or other property;
(e) to open, conduct and close canteens or other facilities;
(f) to dispose of any property acquired by, or vested in, the Board;
(g) in consultation with officers commanding relevant Army or Air Force installations, to establish such State, area, base, unit or local canteen committees as the Board thinks fit;
(h) to issue, or authorise the issue of, orders or instructions in relation to the management, control or administration of the Canteen Service;
(i) to establish and maintain schemes to provide superannuation or retirement benefits for persons appointed or employed under this instrument and appoint trustees for the purposes of such schemes;
(j) to enter into contracts;
(k) to do such other things as are incidental to the purposes of the Canteen Service.
(2) Without limiting paragraph (1)(j), the Board’s power to enter into contracts includes contracts for other persons:
(a) to sell goods and merchandise; or
(b) to supply and provide services, entertainment and other amenities; or
(c) to conduct canteens and other facilities.
(3) The Board has power to do all things necessary or convenient to be done for and in connection with performing its functions.
9 Membership
(1) The Board consists of:
(a) one officer of the Army, not below the rank of Brigadier, appointed by the Chief of the Defence Force; and
(b) one officer of the Air Force, not below the rank of Air Commodore, appointed by the Chief of the Defence Force; and
(c) 3 persons appointed by the Minister, at least 2 of whom have had extensive business or commercial experience; and
(d) the Managing Director.
(2) The Minister must appoint one of the persons referred to in paragraph (1)(c) to be the Chair.
(3) The Chief of the Defence Force must appoint one of the officers referred to in paragraph (1)(a) or (b) to be the Deputy Chair.
(4) The power to appoint a person as a Board member under paragraph (1)(a) and (b) includes the power to appoint a person to be the deputy of that Board member.
Division 2—Terms and conditions of Board members
10 Appointment
A Board member, other than the Managing Director, is to be appointed, by written instrument, on a part‑time basis.
11 Term of appointment
A Board member holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note: A Board member is eligible for reappointment: see the Acts Interpretation Act 1901.
12 Remuneration
(1) A Board member appointed by the Minister is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Board member is to be paid the remuneration that is determined by the Minister.
(2) Any other Board member is not entitled to be paid in respect of any services performed by the Board member under this instrument.
(3) Nothing in this section:
(a) prevents the reimbursement of any out‑of‑pocket expenses reasonably incurred in respect of any services performed by a Board member under this instrument; or
(b) affects the right of any member of the Australian Defence Force to receive any salary, pay or allowances due to the member in his or her capacity as a member of the Australian Defence Force.
(4) The Minister may determine remuneration for the purposes of subsection (1).
13 Leave of absence
The Board may grant leave of absence to a Board member on the terms and conditions that the Board determines.
14 Resignation
(1) A Board member may resign his or her appointment by giving the appointer a written resignation.
(2) The resignation takes effect on the day it is received by the appointer or, if a later day is specified in the resignation, on that later day.
(3) To avoid doubt, a Board member appointed by the Chief of the Defence Force may resign his or her appointment as a Board member without resigning as a member of the Australian Defence Force.
15 Termination of appointment
Board members appointed by the Minister
(1) The Minister may terminate the appointment of a Board member whom the Minister has appointed:
(a) for misbehaviour; or
(b) if the member is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister must terminate the appointment of a Board member whom the Minister has appointed if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with one or more of his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b) the member is absent, except on leave granted by the Board, from 3 consecutive meetings of the Board otherwise than on business of the Board undertaken with the approval of the Board.
Note: The appointment of a Board member may also be terminated under section 30 of the PGPA Act (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
Board members appointed by the Chief of the Defence Force
(3) The Chief of the Defence Force may terminate the appointment of a Board member whom the Chief of the Defence Force has appointed:
(a) for misbehaviour; or
(b) if the member is unable to perform the duties of his or her office.
(4) The Chief of the Defence Force must terminate the appointment of a Board member whom the Chief of the Defence Force has appointed if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with one or more of his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b) the member is absent, except on leave granted by the Board, from 3 consecutive meetings of the Board otherwise than on business of the Board undertaken with the approval of the Board.
Note: The appointment of a Board member may also be terminated under section 30 of the PGPA Act (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
Division 3—Board meetings
16 Holding meetings
(1) The Board is to hold such meetings as are necessary for the performance of the Board’s functions.
(2) The Chair must convene at least one meeting in each quarter of a calendar year.
Note: Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.
17 Presiding at meetings
(1) The Chair presides at all meetings of the Board at which he or she is present.
(2) If the Chair is not present at a meeting, the Deputy Chair is to preside at the meeting.
18 Quorum
At a meeting of the Board, 3 Board members constitute a quorum so long as at least one of those Board members is a person appointed by the Chief of the Defence Force under section 9.
19 Voting at meetings
(1) All questions before the Board are decided by a majority of votes.
(2) Each Board member present at a Board meeting has a deliberative vote and, if the votes are equal, the person presiding at the meeting also has a casting vote.
20 Deputy members
If a Board member is absent from a Board meeting, the deputy of the Board member:
(a) may attend the meeting; and
(b) has, while attending the meeting, the powers of a Board member (other than those of the Chair or Deputy Chair).
Division 4—Miscellaneous
Subdivision A—Committees
21 Committees
(1) For the purpose of performing its functions, or exercising its powers, the Board may establish such State, area, base, unit or local canteen committees as it considers necessary.
(2) Before establishing a committee, the Board must consult with officers commanding the relevant Army or Air Force installation.
Note: The power to establish a committee under this section is separate from the requirement to have an audit committee under section 45 of the PGPA Act.
22 Remuneration of Committee members
(1) If the Board establishes a committee, a member of the committee not entitled to be paid in respect of any services performed by the member under this instrument.
(2) Nothing in this section:
(a) prevents the reimbursement of any out‑of‑pocket expenses reasonably incurred in respect of any services performed by a member of a committee under this instrument; or
(b) affects the right of any member of the Australian Defence Force to receive any salary, pay or allowances due to the member in his or her capacity as a member of the Australian Defence Force.
Subdivision B—Delegation
23 Delegation
The Board may, by writing under its seal, delegate any of its powers under this instrument (other than this section) to:
(a) the Chair; or
(b) the Deputy Chair; or
(c) the Managing Director; or
(d) an employee of the Board.
Part 3—Army and Air Force Canteen Service
Division 1—Conduct of the Canteen Service
24 How the Canteen Service is to be conducted
(1) The Army and Air Force Canteen Service is to be controlled and conducted by the Board in accordance with this instrument.
(2) The Canteen Service’s purposes are:
(a) to supply goods, facilities and services to, or for the entertainment and recreation of:
(i) members of the Army or Air Force; and
(ii) persons employed in, or in connection with, Army or Air Force installations; and
(iii) dependants of those members or persons; and
(iv) visitors to Army or Air Force installations; and
(v) members of the ADF Cadets; and
(b) to undertake activities with such purposes of a similar nature as the Minister approves, in writing, after considering the recommendations of the Board.
(3) The Board must conduct the Canteen Service in accordance with the following policy guidelines:
(a) the Canteen Service is to operate to enhance the living conditions and social environment of the persons referred to in paragraph (2)(a);
(b) the operations of the Canteen Service are to be conducted on a commercial and self‑supporting basis, with the aim of achieving profits sufficient to allow surplus funds to be distributed for the benefit of members of the Army or Air Force;
(c) the operations of the Canteen Service at each Army or Air Force installation are to be conducted in such a way as to make those operations:
(i) self‑supporting; and
(ii) commercially viable; and
(iii) sufficiently profitable so as to ensure, in conjunction with the operation of the Canteen Service at other Army or Air Force installations, the financial self‑sufficiency of the Canteen Service as a whole;
(d) policy guidelines approved by the Minister by written instrument.
(4) The Board may conduct the operations of the Canteen Service under a name registered under the legislation, relating to business names, of a State or Territory in which the operations of the Canteen Service are being conducted.
(5) The Minister may:
(a) approve activities for the purposes of paragraph (2)(b); and
(b) approve policy guidelines for the purposes of paragraph (3)(d).
25 Managing Director of the Canteen Service
(1) The Board must appoint a person to be the Managing Director of the Canteen Service.
(2) The Managing Director:
(a) is the executive member of the Board in relation to managing the Canteen Service in accordance with the policy guidelines referred to in subsection 24(3); and
(b) must perform such other duties in relation to the Canteen Service as the Board directs.
(3) The Managing Director is to be paid such remuneration as is determined by the Remuneration Tribunal or, in the absence of a determination by the Remuneration Tribunal, by the Minister.
(4) The Managing Director holds office on such other terms and as are determined by the Minister.
(5) The Minister may, by written instrument:
(a) determine remuneration for the purposes of subsection (3); and
(b) determine other terms and conditions for the purposes of subsection (4).
26 Staff of Canteen Service
(1) The Board may employ such persons as it considers necessary for the purposes of this instrument.
(2) The terms and conditions of employment of persons employed under subsection (1) are such as are determined by the Board, in writing, subject to written directions issued by the Minister.
(3) The Minister may issue written directions for the purposes of subsection (2).
Division 2—Finance and reporting requirements
Subdivision A—Provisions relating to finance
27 Finance
(1) The Board controls the finances of the Canteen Service.
(2) The Board may, from time to time, allocate to:
(a) the Managing Director; or
(b) an employee of the Board;
the funds of the Canteen Service that the Board considers necessary to administer and conduct the part of the Canteen Service for which that person has been given responsibility by the Board.
(3) For the purpose of subsection (2), funds means:
(a) money deposited with, or otherwise owing by, the Commonwealth or by a Department of the Australian Public Service; or
(b) money in hand or at credit in any fixed deposit or current account with a bank; or
(c) drafts, bills of exchange and other negotiable instruments;
but does not include investments made by the Board, stock‑in‑trade, plant, machinery, other property, book debts, rights of action, claims or demands, relating to or arising out of the conduct of the Canteen Service, unless and until they are converted into money.
28 Borrowing
(1) The Board may, with the written approval of the Finance Minister, borrow money (otherwise than from the Commonwealth) that is necessary to conduct the Canteen Service.
(2) The Board may give security over the whole or any part of its assets for:
(a) the repayment of amounts so borrowed; and
(b) the payment of interest on amounts so borrowed.
(3) The Board may not borrow money except in accordance with this section.
29 Application and investment of money
The Board’s money may be applied only:
(a) to pay or discharge the costs, expenses and other obligations of the Board relating to the conduct of the Canteen Service under these instrument; and
(b) to pay remuneration, allowances or other benefits to a person appointed or employed under this instrument; and
(c) to make payments in accordance with section 31.
30 Restrictions on contracts
The Board may not, except with the written approval of the Minister, enter into a contract involving the payment or receipt of an amount exceeding $500,000.
31 Distribution of profits
(1) The profits of the Board for a trading period are worked out according to the following formula:
Expenditure is the expenditure, and provision for expenditure, properly chargeable against revenue.
Revenue is the revenue received or receivable in respect of that trading period.
(2) The Board must distribute profits and other surplus funds not required for the future maintenance and operation of the Canteen Service:
(a) at least once in each financial year; and
(b) in accordance with principles approved by the Minister in writing.
(3) Before distributing profits and other surplus funds, as required by subsection (2), the Board must ensure that such provision as the Board considers proper is made for:
(a) the repayment of money borrowed by the Board under section 28; and
(b) the Board’s accrued or contingent liabilities; and
(c) reserves; and
(d) amounts required for allocation under subsection 27(2).
(4) The principles approved by the Minister under paragraph (2)(b) must include the following principles:
(a) the profits and other surplus funds distributed under subsection (2) are to be:
(i) distributed to Army or Air Force units or bases; and
(ii) applied for the provision of amenities, services and facilities at those units and bases for the benefit of members of the Army and the Air Force;
(b) the amount of the profits distributed to an Army or Air Force unit or base in respect of a trading period is to be related, in the manner specified by the Minister, to the contribution that the trading profits of the canteens at that unit or base made to the total trading profits of the Canteen Service during that period;
(c) the amount of the surplus funds, other than profits, distributed to an Army or Air Force unit or base in respect of a trading period is to be related, in the manner specified by the Minister, to:
(i) the contribution that the trading profits of the canteens at that unit or base made to the total trading profits of the Canteen Service during that trading period; or
(ii) the contribution that the sales of the canteens at that unit or base made to the sales of the Canteen Service during that trading period.
(5) The Minister may approve principles for the purposes of paragraph (2)(b).
(6) In this section:
trading period means such period as the Board determines having regard to principles approved by the Minister.
Subdivision B—Reporting requirements
32 Annual report
An annual report prepared by the Board and given to the Minister under section 46 of the PGPA Act for a period must set out, for the period to which the report relates:
(a) each policy guideline approved by the Minister by instrument under paragraph 24(5)(b); and
(b) each direction issued by the Minister under subsection 26(3).
Part 4—Miscellaneous
Division 1—Application of other laws
33 Taxation laws
(1) The Board is subject to taxation, other than income tax, under the laws of the Commonwealth, the States and the Territories.
(2) Subsection (1) does not in any way affect the operation of section 34.
34 Exemption from laws relating to the supply of liquor
It is not necessary, under or because of any law of a State or Territory, to have any licence or permission for:
(a) keeping; or
(b) supplying, on sale or otherwise; or
(c) permitting the consumption of;
liquor at a canteen or other facility established, conducted, maintained or operated in accordance with this instrument or under a licence granted under section 35.
35 Licences
(1) The Board may, with the approval of the Commanding Officer of an Army or Air Force installation, grant a licence to a person to provide a service not catered for in the Army or Air Force installation by the Canteen Service.
(2) A licence may be granted on such terms and conditions as the Board determines.
Division 2—Delegations
36 Delegation—Minister
The Minister may, by signed written instrument, delegate any of the Minister’s powers under this instrument (other than this section) to:
(a) an officer of the Navy who holds a rank not below the rank of Commodore; or
(b) an officer of the Army who holds a rank not below the rank of Brigadier; or
(c) an officer of the Air Force who holds a rank not below the rank of Air Commodore; or
(d) a person who for the time being is an SES employee.
Part 5—Application, savings and transitional provisions
37 Definitions
In this Part:
old law means the Army and Air Force Canteen Service Regulations 1959, as in force immediately before 1 October 2016.
38 Savings—appointments
Appointment of Board members
(1) A person holding office as a Board member under paragraph 10(1)(a) or (b) of the old law immediately before 1 October 2016 is taken to have been duly appointed by the Chief of the Defence Force on 1 October 2016 under subsection 9(1) of this instrument:
(a) for the balance of the person’s term of appointment that remained immediately before 1 October 2016; and
(b) on the same terms and conditions as applied to the person immediately before 1 October 2016.
(2) A person holding office as a Board member under paragraph 10(1)(c) of the old law as in force immediately before 1 October 2016 is taken to have been duly appointed by the Minister on 1 October 2016 under subsection 9(1) of this instrument:
(a) for the balance of the person’s term of appointment that remained immediately before 1 October 2016; and
(b) on the same terms and conditions as applied to the person immediately before 1 October 2016.
(3) A person holding office as the Managing Director under regulation 14 of the old law immediately before 1 October 2016 is taken to have been duly appointed by the Board on 1 October 2016 under subsection 25(1) of this instrument:
(a) for the balance of the term of appointment that remained immediately before 1 October 2016; and
(b) on the same terms and conditions as applied immediately before 1 October 2016.
Appointment of Chairman
(4) The appointment of a Board member to be the Chairman, as in force under the old law immediately before 1 October 2016, has effect, on and from that day, as if it had been made under subsection 9(2) of this instrument.
Appointment of Deputy Chairman
(5) A person appointed as the Deputy Chairman under subregulation 10(3) of the old law immediately before 1 October 2016 is taken to have been duly appointed by the Chief of the Defence Force on 1 October 2016 under subsection 9(3) of this instrument.
Appointment of trustees
(6) The appointment of a trustee for a scheme providing superannuation or retirement benefits, as in force under the old law immediately before 1 October 2016, has effect, on and from that day, as if it had been made under paragraph 8(1)(i) of this instrument.
39 Savings—Board orders and instructions
An order or instructions issued by the Board under paragraph 13(1)(h) of the old law and in force immediately before 1 October 2016, has effect on and after that day as if it were issued by the Board under paragraph 8(1)(h) of this instrument.
40 Savings—Minister’s policy guidelines and directions etc.
(1) A policy guideline approved by the Minister under paragraph 4(4)(d) of the old law and in force immediately before 1 October 2016, has effect on and after that day as if it were approved by the Minister under paragraph 24(3)(d) of this instrument.
(2) A direction issued by the Minister under subregulation 20(2) of the old law and in force immediately before 1 October 2016, has effect on and after that day as if it were issued by the Minister under subsection 26(3) of this instrument.
(3) A principle approved by the Minister under subregulation 24(2) of the old law and in force immediately before 1 October 2016, has effect on and after that day as if it were approved by the Minister under paragraph 31(2)(b) of this instrument.
41 Savings—staff of Canteen Service
A person employed by the Board under the old law immediately before 1 October 2016, continues to be employed, on and after that day:
(a) under subsection 26(1) of this instrument; and
(b) on the same terms and conditions that applied to the person’s employment immediately before that day.
42 Savings—licences
A licence granted by the Board under regulation 28 of the old law and in force immediately before 1 October 2016 is taken to be granted, on 1 October 2016, under subsection 35(1) of this instrument on the same terms and conditions that applied immediately before that day.
43 Savings—delegations
Delegation by the Board
(1) A delegation by the Board, as in force under subregulation 19(1) of the old law immediately before 1 October 2016, continues in force on and after that day as if it had been made under section 23 of this instrument.
Delegation by the Minister
(2) A delegation by the Minister, as in force under subregulation 3A(1) of the old law immediately before 1 October 2016, continues in force on and after that day as if it had been made under section 36 of this instrument.
Schedule 1—Repeals
Army and Air Force Canteen Service Regulations 1959