These regulations are the Defence Force Regulations 1952.
3 Interpretation
(1) In these Regulations, unless the contrary intention appears:
affidavit includes an affirmation, statutory or other declaration, acknowledgment or examination.
oath includes an affirmation or declaration.
sworn includes affirmed or declared.
the Act means the Defence Act 1903.
(2) In these Regulations, a term used in relation to the Navy, the Army or the Air Force has the same meaning as in the Naval Forces Regulations, the Australian Military Regulations or the Air Force Regulations, as the case may be.
3A Delegations
(1) The Minister may delegate, in writing, any of his or her powers under these Regulations to:
(a) an officer of the Navy who holds the rank of Commodore, or a higher rank; or
(b) an officer of the Army who holds the rank of Brigadier, or a higher rank; or
(c) an officer of the Air Force who holds the rank of Air Commodore, or a higher rank; or
(d) the Secretary of the Department; or
(e) an SES employee performing duty in the Department; or
(f) any other APS employee who, for the time being, is performing duties in the Department at a classification for which the minimum rate of salary exceeds the maximum rate of salary that applies to the Executive Level 2 classification in the Department.
(2) The Minister may also delegate, in writing, his or her powers under regulation 58G to:
(a) an officer of the Navy who holds the rank of Captain; or
(b) an officer of the Army who holds the rank of Colonel; or
(c) an officer of the Air Force who holds the rank of Group Captain; or
(d) an APS employee (except the Secretary of the Department or an APS employee mentioned in paragraph (1)(e) or (f)) who, for the time being, is performing duties in the Department at a classification for which the minimum rate of salary exceeds the maximum rate of salary that applies to the Executive Level 1 classification in the Department.
Note: For the effect of a delegation, see s. 34AB of the Acts Interpretation Act 1901.
Part II—Command of Forces acting together
4 Joint orders
When a member or part of the Navy, a member or part of the Army and a member or part of the Air Force, or a member or part of one of those arms of the Defence Force and a member or part of another of those arms of the Defence Force, are acting together, the Chief of the Defence Force may make an order declaring that the members or parts are acting together.
5 Powers of Navy or Army officers etc when acting with Air Force
When:
(a) a member or part of the Navy and a member or part of the Army; or
(b) a member or part of either of those arms of the Defence Force;
are or is acting together with a member or part of the Air Force under an order made pursuant to this Part:
(c) an officer, or a sailor holding the rank of leading seaman or a higher rank, in the Navy who is so acting, or who is a member of the part of the Navy so acting; or
(d) an officer, warrant officer or non‑commissioned officer in the Army who is so acting, or who is a member of the part of the Army so acting;
shall be entitled to exercise powers of command in relation to that member or part of the Air Force as if he held in the Air Force a rank that is a corresponding rank in relation to the rank held by him in the Navy or the Army.
6 Powers of Navy or Air Force officers etc when acting with Army
When:
(a) a member or part of the Navy and a member or part of the Air Force; or
(b) a member or part of either of those arms of the Defence Force;
are or is acting together with a member or part of the Army under an order made pursuant to this Part:
(c) an officer, or a sailor holding the rank of leading seaman or a higher rank, in the Navy who is so acting, or who is a member of the part of the Navy so acting; or
(d) an officer, warrant officer or non‑commissioned officer in the Air Force who is so acting, or who is a member of the part of the Air Force so acting;
shall be entitled to exercise powers of command in relation to that member or part of the Army as if he held in the Army a rank that is a corresponding rank in relation to the rank held by him in the Navy or the Air Force.
7 Powers of Army or Air Force officers etc when acting with Navy
When:
(a) a member or part of the Army and a member or part of the Air Force; or
(b) a member or part of either of those arms of the Defence Force;
are or is acting together with a member or part of the Navy under an order made pursuant to this Part:
(c) an officer, warrant officer or non‑commissioned officer in the Army who is so acting, or who is a member of the part of the Army so acting; or
(d) an officer, warrant officer or non‑commissioned officer in the Air Force who is so acting, or who is a member of the part of the Air Force so acting;
shall be entitled to exercise powers of command in relation to that member or part of the Navy as if he held in the Navy a rank that is a corresponding rank in relation to the rank held by him in the Army or the Air Force.
8 Corresponding ranks
(1) For the purposes of these Regulations, a rank specified in an item in the following table is a corresponding rank in relation to any other rank specified in that item:
(2) Any reference in an item in the table in subregulation (1) to a rank in an arm of the Defence Force shall be read as including a reference to any other rank, in the same arm of the Defence Force, not specified in that table, that under the law governing that arm of the Defence Force is equivalent to the rank specified in that item.
9 Delegation of power to make joint order
(1) The Chief of the Defence Force may, by instrument, delegate to any person, either generally or in relation to a particular locality specified in the instrument of delegation, the power conferred upon him by this Part, so that the delegated power may be exercised, either generally or in relation to that locality, as the case may be, as fully and effectually by the delegate as by the delegant.
(2) A delegation under this regulation is revocable at will and does not prevent the exercise by the delegant of the delegated power.
10 Joint orders by officers in command
(1) When a member or part of the Navy, a member or part of the Army and a member or part of the Air Force, or a member or part of one of those arms of the Defence Force and a member or part of another of those arms of the Defence Force, are acting together, and reference to the appropriate authorities or persons empowered under the preceding provisions of this Part to make an order declaring that the members or parts are so acting would occasion undue delay, the respective officers in command of each member or part of the arms of the Defence Force may make that order if:
(a) in the case of a body of the Navy, the officer in command of that body is not below the rank of Lieutenant‑ Commander;
(b) in the case of a body of the Army the officer in command of that body is not below the rank of Major; and
(c) in the case of a body of the Air Force, the officer in command of that body is not below the rank of Squadron‑ Leader.
(2) Where an officer makes an order under this regulation, he shall report the fact and the circumstances to the appropriate authority or his delegate, as the case requires, who may confirm, cancel or vary the order.
11 Orders and delegations not to lapse
An order or a delegation made under this Part does not lapse or become ineffective by reason only that a person who made, or participated in making, the joint order or the delegation has ceased to hold an office by the authority of which he made, or participated in making, the joint order or the delegation.
Part 3—Aid to civilian authorities
11A Application of Part 3
This Part applies if the Defence Force is called out under any lawful authority other than Part IIIAAA of the Act.
11B Responsibility of Chief of Defence Force
(1) If the Defence Force is called out to protect Commonwealth interests in Australia against domestic violence, the Chief of the Defence Force must utilise the Defence Force in a way that is reasonable and necessary to protect the Commonwealth interest.
(2) If the Defence Force is called out to protect a State or self‑governing Territory against domestic violence, the Chief of the Defence Force must utilise the Defence Force in a way that is reasonable and necessary to protect the State or Territory.
11C Ministerial directions
(1) In utilising the Defence Force in accordance with regulation 11B, the Chief of the Defence Force must comply with any direction that the Minister gives from time to time as to the way in which the Defence Force is to be utilised.
(2) However, in utilising the Defence Force in accordance with subregulation (1), the Chief of the Defence Force must not:
(a) stop or restrict any protest, dissent, assembly or industrial action except where there is a reasonable likelihood of the death of, or serious injury to, persons or serious damage to property; or
(b) utilise the Reserves unless the Minister, after consulting the Chief of the Defence Force, is satisfied that sufficient members of the Permanent Forces are not available.
11D Assistance to, and cooperation with, State etc
(1) Subject to regulation 11C and subregulation (2), in utilising the Defence Force in accordance with regulation 11B, the Chief of the Defence Force must, as far as is reasonably practicable, ensure that:
(a) the Defence Force is utilised to assist the State or Territory and cooperates with the police force of the State or Territory; and
(b) the Defence Force is not utilised for any particular task unless a member of the police force of the State or Territory, or an officer of a civil authority designated by the Minister (the civil authority), gives a written request to the Chief of the Defence Force requesting that the Defence Force be utilised for the task.
(2) Subregulation (1) does not require or permit the Chief of the Defence Force to transfer to any extent command of the Defence Force to the State or Territory, or to the police force or member of the police force of the State or Territory, or to the civil authority or officer of the civil authority.
Part IV—Administration of oaths etc
15 Interpretation
(1) In this Part, unless the contrary intention appears:
competent officer means:
(a) an officer:
(i) of the Defence Force;
(ii) of the naval, military or air force of the United Kingdom, Canada or New Zealand; or
(iii) of the naval, military or air force of a country determined by the Minister by notice published in the Gazette;
who holds a rank, or a rank equivalent to a rank, not below:
(iv) in the case of a Naval officer—Lieutenant;
(v) in the case of a Military officer—Captain; or
(vi) in the case of an Air Force officer—Flight Lieutenant;
(b) an air force officer who holds a rank below that of Flight Lieutenant while he is in charge of a unit or detachment of the Royal Australian Air Force; and
(c) in relation to a member of the Defence Force who is a prisoner of war or interned in a place outside Australia, a person who is a British subject and is, for the time being, the official representative of prisoners of war or other persons detained or interned in that place.
(2) For the purposes of this Part:
(a) a reference to a member of the Defence Force includes a reference to a person who, not being a member of the Defence Force, accompanies a part of the Defence Force; and
(b) a reference to a member of the Defence Force on service outside Australia includes a reference to a member of that Force who is a prisoner of war or interned in a place outside Australia.
16 Administration of oaths etc
A competent officer may administer oaths to, take affidavits of, and attest the execution of documents by a member of the Defence Force while on service outside Australia.
17 Validity of administration of oaths etc
The administration of an oath, the taking of an affidavit or the attestation of the execution of a document by a competent officer in pursuance of this Part is valid and effectual for the purposes of a matter arising in or under a law of the Commonwealth or of a State or Territory.
18 Particulars in jurat
(1) A competent officer who, in pursuance of this Part, administers an oath, takes an affidavit or attests the execution of a document, shall legibly write, type or stamp in the jurat or attestation of the document in respect of which the power is exercised, after his signature, his name and rank, and, in the case of an officer of an air force below the rank of Flight Lieutenant, the fact that he is in charge of a unit or detachment of the Royal Australian Air Force.
(2) It is not necessary to state the place where the oath is administered, the affidavit is sworn or the document is attested.
19 Compliance with form provided by Commonwealth, State or Territory law sufficient
An affidavit or declaration sworn or made in pursuance of this Part is sufficient in law if it is substantially in accordance with the form provided by a law of the Commonwealth or of the State or Territory in which the affidavit or declaration is to be used.
20 Affidavit admissable in evidence without proof of rank of officer administering it etc
Where a document purports to have subscribed to it the signature of a competent officer in testimony of the administration of an oath, the taking of an affidavit or the attestation of the execution of a document by him, it shall be admitted in evidence without proof:
(a) of the rank of the officer, of the force of which he is an officer and, in the case of an officer of an air force below the rank of Flight Lieutenant, of the fact that he was in charge of a unit or detachment of the Royal Australian Air Force;
(b) that the signature is that of the officer; or
(c) that the person to whom the oath was administered or by whom the affidavit was sworn or the document executed was, at the date of the swearing or execution, a member of the Defence Force.
21 False statements
(1) A person is guilty of an offence if the person makes a false statement in an affidavit or declaration sworn or made under this Part.
Penalty: 1 penalty unit or imprisonment for 3 months.
(2) This regulation does not affect the liability of a person under any other law.
Part V—Powers of attorney
22 Interpretation
For the purposes of this Part, a reference to a member of the Defence Force includes a reference to a person who, not being a member of the Defence Force, accompanies a part of the Defence Force.
23 Powers of attorney executed by members of the Defence Force under twenty‑one years
A power of attorney executed, whether before or after the commencement of this regulation, by a person under the age of 21 years who was, at the time of the execution, a member of the Defence Force shall, after the commencement of this regulation or the execution of the power, whichever is the later, be and continue as valid and effectual, notwithstanding that that person may have ceased to be a member of the Defence Force, as if that person had, at the time of the execution of the power, been of the age of 21 years or more.
24 Attorney’s power limited
This Part does not enable an attorney of a person who has not attained the age of 21 years to do anything as the attorney of that person which that person could not validly do personally.
25 Effect of revocation etc
For the purposes of this Part:
(a) the revocation by a person under the age of 21 years of a power of attorney to which regulation 23 applies is as valid and effectual as if that person had, at the time of revocation, been of the age of 21 years or more; and
(b) a statutory declaration by the donee of a power, made in accordance with a law of the Commonwealth or of a State or Territory, that the donor of the power was, at the time of its execution a member of the Defence Force, is conclusive proof of the facts so declared in favour of a person dealing with the donee of the power in good faith.
Part 5A—Certification of deaths
25A Definitions
(1) In this Part:
competent authority: see subregulation 25B(2).
death certificate:
(a) means a certificate issued by a competent authority under regulation 25C; and
(b) includes a corrected certificate issued under subregulation 25F(4).
service includes service outside Australia.
(2) In this Part:
(a) a reference to a member of the Defence Force includes a reference to a person who, not being a member of the Defence Force, accompanies a part of the Defence Force; and
(b) a reference to a member of the Defence Force on service outside Australia includes a reference to a member of that Force who is a prisoner of war or interned in a place outside Australia.
25B Authorisation to issue death certificate
(1) The Minister for Defence may, by notice in the Gazette, authorise a person to issue certificates of the death of members of the Defence Force.
(2) The authorised person mentioned in subregulation (1) is a competent authority.
(3) Subregulation (1) does not authorise a competent authority to issue a certificate of the death of a person otherwise than in accordance with this Part.
25C Death certificate
(1) A competent authority who is satisfied, from information available in the Department, that a member of the Defence Force died on a particular date while on service may issue a certificate that the member died on that date.
(2) A competent authority who is satisfied, from information available in the Department, that a member of the Defence Force died on or after a particular date while on service may issue a certificate that the member died on or after that date.
(3) A competent authority who is satisfied, from information available in the Department, that a member of the Defence Force died on or before a particular date while on service may issue a certificate that the member died on or before that date.
(4) A competent authority who is satisfied, from information available in the Department, that a member of the Defence Force became missing on a particular date, and, for official purposes, is presumed to have died, while on service may issue a certificate that the member became missing on that date and is, for official purposes, presumed to be dead.
25D Effect of death certificate
(1) A death certificate is evidence, in all courts and before all persons acting judicially, of the death of the member of the Defence Force named in the death certificate, on the date specified as:
(a) the date on which the member died; or
(b) the date on or after which the member died; or
(c) the date on or before which the member died; or
(d) the date on which the member became missing and was, for official purposes, presumed to be dead.
(2) A court or a person acting judicially must, in relation to a death certificate, take judicial notice of the signature of a competent authority and of the fact that he or she is, or has been, a competent authority.
(3) Subregulation (4) applies if:
(a) a competent authority has issued a death certificate in relation to a member of the Defence Force; and
(b) the death certificate is in effect; and
(c) a second person presumes that the member died in accordance with the date specified in the death certificate; and
(d) the second person acts in good faith on the presumption and pays money or transfers property to a third person; and
(e) the third person is entitled to receive the money or property on the assumption that the member died or is presumed to be dead.
(4) For subregulation (3):
(a) the second person obtains a good discharge in respect of the money or property; and
(b) if the member is, in fact, alive on or after the date specified in the death certificate, the second person is not subject to any civil or criminal liability, in connection with the money or property, to which the second person would not have been subject if the member had died in accordance with the death certificate.
25E No security required in connection with probate or administration
(1) This regulation applies if:
(a) a death certificate has been issued in relation to a member of the Defence Force; and
(b) either:
(i) probate of the member’s will has been granted or proposed to be granted; or
(ii) administration of the member’s estate has been granted or proposed to be granted; and
(c) the death certificate has not been cancelled.
(2) Leave of a court is not required for the distribution or administration of the member’s estate.
(3) A bond, surety or other security must not be required of any person for the restoration, repayment or replacement upon any condition or event of money or other property forming part of the member’s estate which would not be required if the member’s death had been conclusively proved.
25F Cancellation and correction of death certificate
(1) If a death certificate:
(a) has been wrongly issued; or
(b) ceases to be in accordance with the information available in the relevant Department; or
(c) is incorrect in a particular;
a competent authority may, by notice served on the person who has the death certificate, ask the person to give the death certificate to the competent authority.
(2) The person commits an offence if the person does not give the death certificate to the competent authority as soon as practicable.
Penalty: 5 penalty units, or imprisonment for 3 months.
(3) A competent authority who receives a death certificate after a request under subregulation (1) must cancel or correct the death certificate.
(4) If a death certificate is incorrect in a particular:
(a) a competent authority may, in accordance with this Part, issue a corrected certificate even though the incorrect death certificate has not been cancelled; but
(b) the issue of a corrected certificate is taken not to affect the rights of a person who acts in reliance on the incorrect death certificate and without knowledge of the issue of the corrected certificate.
25G Death certificate not to be used if competent authority requires certificate
If a competent authority has asked a person to give the competent authority a death certificate, or the person knows that a competent authority intends to ask the person to give the competent authority a death certificate, the person commits an offence if the person:
(a) gives the death certificate to a person other than the competent authority; or
(b) otherwise makes use of, or acts in reliance on, the death certificate.
Penalty: 5 penalty units, or imprisonment for 3 months.
25H Proof of life on information available after issue of death certificate
(1) A competent authority may issue a certificate (a provisional certificate) stating that, from information available in the Department, there is reason to believe that a member of the Defence Force named in a death certificate is, or may be, alive.
(2) Despite:
(a) any law of a State or a Territory; or
(b) probate or letters of administration granted under a law of a State or a Territory;
a provisional certificate is evidence, in all courts and before all persons acting judicially, that the member named in the certificate is alive.
(3) Subregulation (4) applies if:
(a) a competent authority has issued a provisional certificate in relation to a member of the Defence Force; and
(b) the provisional certificate is in effect; and
(c) a second person presumes that the member is still alive; and
(d) the second person acts in good faith on the presumption and pays money or transfers property to a third person; and
(e) the third person is entitled to receive the money or property on the assumption that the member is alive.
(4) For subregulation (3):
(a) the second person obtains a good discharge in respect of the money or property; and
(b) if the member is, in fact, dead on the date of the payment or transfer, the second person is not subject to any civil or criminal liability, in connection with the money or property, to which the second person would not have been subject if the member were alive.
(5) A competent authority may issue a provisional certificate even though the death certificate has not been cancelled.
(6) If a competent authority issues a provisional certificate:
(a) the death certificate in relation to the member ceases to be in effect; but
(b) the issue of a provisional certificate is taken not to affect the rights of a person who acts in reliance on the death certificate and without knowledge of the issue of the provisional certificate.
(7) Subject to this regulation, regulations 25F and 25G apply to a provisional certificate in the same way as they apply to a death certificate.
(8) A provisional certificate ceases to apply if a competent authority issues another death certificate in relation to the member after the issue of the provisional certificate.
Part VI—Disposal of dead bodies of members of the Defence Force
26 Definitions
(1) In this Part, unless the contrary intention appears:
body includes a part of a body.
Registrar of Deaths, in relation to a State or Territory, means a person or authority charged under the law of that State or Territory with the duty of registering deaths.
(2) For the purposes of this Part, unless the contrary intention appears:
(a) a reference to a member of the Defence Force includes a reference to a person who, not being a member of the Defence Force, accompanies a part of the Defence Force;
(b) a reference to a member of the Defence Force on service includes a reference to a member of that Force on service outside Australia; and
(c) a member of the Defence Force shall be deemed to be on service outside Australia while he is a prisoner of war or interned in a place outside Australia.
27 Disposal of dead bodies of members of the Defence Force
A commissioned officer of the Defence Force may, subject to any direction of the Minister, give such directions for the disposal of the body of a member of the Defence Force who died while on service as he thinks fit.
28 State law not to apply
A law of a State or Territory relating to coroners or the registration of deaths does not apply in relation to a body with respect to which directions for disposal are given under this Part or in relation to the death of a member of the Defence Force with respect to whose body such directions are given.
29 Post mortems and certificates of death
(1) Notwithstanding anything contained in a law of a State or Territory, a commissioned medical officer of the Defence Force, who is a duly qualified medical practitioner according to a law of a State or Territory, may:
(a) if requested so to do by a coroner or deputy coroner of a State or Territory, perform in that State or Territory a post mortem examination of the body of a member of the Defence Force who died while on service; and
(b) sign a certificate of death in respect of the death of a member of the Defence Force who died while on service.
(2) A certificate of death so signed, and containing a statement that the deceased person was a member of the Defence Force who died while on service, is of the same force and effect as a certificate signed by a duly qualified medical practitioner of the State or Territory in which the death occurred.
30 Persons to furnish particulars on request
At the request of the Minister or of a Registrar of Deaths, a person shall furnish to the Registrar of Deaths specified by the Minister in the request or to the Registrar making the request, as the case may be, such particulars as are known to, or can reasonably be ascertained by, that person of the identity of a member of the Defence Force with respect to whose body directions are given under this Part.
31 War graves
Notwithstanding the provisions of a law of a State or a Territory, the Director of War Graves, or an officer of the Defence Force in charge of a unit specifically raised for the purpose of the registration of, or inquiries concerning, the graves of deceased members of the Defence Force:
(a) may establish or cause to be established such cemeteries as are required for the burial of bodies of persons who have died while on service as members of the Defence Force or as a result of service as members of the Defence Force; and
(b) may authorize and direct the exhumation and the reinterment, cremation or other disposal of the body of:
(i) a member of the Defence Force who has died while on service; or
(ii) a person who, immediately before his or her death, was a dependant of a member of the Defence Force on service, and whose grave is located in the Terendak Military Cemetery in Malaysia; and
(c) may enter a cemetery and inspect, maintain or execute any work in connexion with the grave of a person who has died while on service as a member of the Defence Force or as a result of service as a member of the Defence Force or authorize any other person or persons to enter a cemetery and inspect, maintain or execute any work in connexion with such a grave.
Part VII—Defence areas
32 Interpretation—Part VII
In this Part:
Australian Government officer means a person holding office under an Act of the Parliament of, or employed by, the Commonwealth, and includes:
(a) a person permanently or temporarily employed in the Australian Public Service or the Public Service of a Territory or in the service of an Australian public authority;
(b) a member of the Defence Force; and
(c) a member or special member of the Australian Federal Police.
Australian public authority means a body corporate (not being an incorporated company, society or association) incorporated for a public purpose by or under a law of the Commonwealth or of a Territory.
constable means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory.
undertaking means a work of defence.
war material means goods for use for Defence purposes and includes goods being developed for use for defence purposes or being tested for use, or the use of similar goods, for defence purposes.
Woomera Area means the place situated in the State of South Australia known as the Woomera Prohibited Area that is a prohibited area for the purposes of regulation 35.
33 Regulations to bind the Crown
Regulations 34 and 35 bind the Crown in right of the Commonwealth or of a State.
34 Entry upon and use of land
The Minister may authorize entry upon, and the use on behalf of the Commonwealth of, any area of land or water, being an area in which it is necessary or expedient in the interests of the safety or defence of Australia to carry out operations for the testing of war material, for the purpose of carrying out such operations.
35 Prohibited areas
(1) The Minister may, by notice published in the Gazette, declare a place to be a prohibited area for the purposes of this regulation.
(2) The Minister must not declare a place to be a prohibited area unless:
(a) it is an undertaking; or
(b) it is a place in which it is necessary or expedient in the interests of the safety or defence of Australia:
(i) to carry out operations for the testing of war material; and
(ii) that special precautions be taken to prevent the entry of unauthorised persons into that place.
(3) A person must not enter or remain in a prohibited area if he or she does not have authority to enter or remain in that area.
Penalty: 20 penalty units or imprisonment for 6 months, or both.
(4) A person authorised by the Minister for this subregulation, may give permission to a person to enter and remain in a prohibited area.
(5) Permission under subregulation (4) may be subject to such conditions (including conditions as to the conduct of the person to whom the permission is given) as the person giving the permission considers necessary for the protection of:
(a) persons and property in the area; and
(b) official secrets.
(6) It is a defence to a prosecution for an offence against subregulation (3) that the entry or stay is in accordance with permission given under subregulation (4).
(7) A person who is given permission under subregulation (4), is guilty of an offence if the person engages in conduct that is in breach of a condition of the permission.
Penalty: 20 penalty units or imprisonment for 6 months, or both.
(8) A person who enters or remains in a prohibited area in contravention of subregulation (3) or who fails to comply with a condition of a permission given to the person under subregulation (4), may, without prejudice to any proceedings that may be taken against him or her, be removed from the prohibited area by, or under the direction of:
(a) a constable; or
(b) an Australian Government officer; or
(c) a person authorised by the Minister to do so.
36 Compensation
Where:
(a) any person suffers loss or damage by reason of anything done in pursuance of regulation 34 in relation to any land or water in which he has any legal or equitable interest; or
(b) by reason of the operation of regulation 35 a person ordinarily resident in a prohibited area at the time when the area becomes a prohibited area suffers any loss or damage;
the Commonwealth shall be liable to pay to him such compensation as is determined by agreement between him and the Minister or, in the absence of agreement, by action by
him against the Commonwealth in a court of competent jurisdiction.
36A Compensation for acquisition of property
(1) If the operation of regulation 34 or 35 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or another court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
37 Smoking etc in protected place
(1) A person in a protected place, must not:
(a) smoke, strike a match, light a fire or in any way procure a naked light or flame; or
(b) possess tobacco, matches, a flame lighter, a candle, a lamp or any material capable of being used for smoking or for procuring a naked light or flame.
Penalty: 1 penalty unit or imprisonment for 3 months, or both.
(2) It is a defence to a prosecution for an offence against subregulation (1) that the defendant had the permission of the officer‑in‑charge to engage in the relevant conduct in the protected place.
(3) In this regulation:
officer‑in‑charge means the person appointed to be in charge of the undertaking.
protected place means an undertaking, or part of an undertaking:
(a) which is declared by the officer‑in‑charge of the undertaking, by notice in writing, to be a protected place for this regulation; and
(b) on which a notice to that effect is prominently displayed.
38 Canteens
(1) The Minister may establish, or authorize the establishment of, a canteen for the use of persons performing duties in, or employed in or in connexion with, an undertaking in the Woomera Area and may authorize the sale or supply of intoxicating liquor at such a canteen upon such terms and conditions as are specified by him.
(2) It is lawful for a person to sell or supply intoxicating liquor in pursuance of an authority by the Minister under subregulation (1).
38A Transport etc in the Woomera Area
(1) A person authorized by the Minister to act under this regulation may give a direction or authority to a person (whether a member of the Defence Force or not) who is performing duties or is employed in or in connection with an undertaking established in the Woomera Area with respect to the transport, handling, storage, testing or use, in that area for the purposes of such an undertaking, of weapons, explosives, vehicles or other war material.
(2) A direction or authority under subregulation (1) may be given to a particular person, to particular persons or to the persons included in a class of persons.
(3) It is lawful for a person to whom a direction or authority under subregulation (1) is given to comply with the direction or exercise the authority.
Part VIII—Attachment of members
39 Attachment of members
(1) The service chief of an arm of the Defence Force may, by instrument in writing, place a member of that arm at the disposal of the service chief of another arm of the Defence Force in order that that member may be attached to that other arm by the last‑mentioned service chief.
(2) The service chief of an arm of the Defence Force may, by instrument in writing, attach to that arm a member of another arm of the Defence Force who has been placed at his disposal in accordance with subregulation (1).
(3) Subject to subregulation (4), a member attached to an arm of the Defence Force under subregulation (2) has the same powers of command, and is subject to command, as if he were a member of that arm holding a rank, and having seniority in that rank, corresponding to his rank and seniority in the arm of the Defence Force of which he is a member.
(4) A member referred to in subregulation (2) does not by reason only of his being attached as provided by that subregulation cease to be subject to the law governing the arm of the Defence Force of which he is a member.
40 Delegation by a service chief
(1) A service chief may by writing signed by him delegate, either generally or otherwise as provided in the instrument of delegation, to:
(a) in the case of the Chief of Navy—an officer who holds
a rank in the Navy not below the rank of Lieutenant‑ Commander;
(b) in the case of the Chief of Army—an officer who holds a rank in the Army not below the rank of Major; or
(c) in the case of the Chief of Air Force—an officer who holds a rank in the Air Force not below the rank of Squadron Leader;
any of his powers under regulation 39.
(2) A power delegated under this regulation, when exercised by the delegate, shall, for the purposes of regulation 39, be deemed to have been exercised by the service chief.
(3) A delegation under this regulation does not prevent the exercise of a power by the service chief.
Part IXA—Salvage claims
43A Apportionment of salvage amongst crew members
(1) For the purposes of section 117AB of the Act, salvage payable shall, subject to subregulation (2), be apportioned amongst the members of the crew in accordance with the following table:
Apportionment of Salvage
Rank
Shares
Rear Admiral
28
Commodore
26
Captain
24
Commander
22
Lieutenant‑Commander
20
Lieutenant
18
Warrant Officer
18
Sub‑Lieutenant
16
Chief Petty Officer
16
Petty Officer
14
Leading Seaman
12
Able Seaman
10
Any other rank
10
(2) In determining the salvage payable to a crew member:
(a) the commanding officer of the naval ship shall receive the number of shares for his or her rank multiplied by 2;
(b) where the commanding officer recommends that extraordinary personal endeavour by a member of the crew warrants special recognition, the Chief of Navy may authorise an increase in the member’s number of shares by not more than 3; and
(c) the value of each share shall be ascertained by dividing the total amount of salvage available to be apportioned amongst the crew by the total number of shares.
Part X—Visiting forces
44 Declaration of countries to which Part IXA of the Act applies
(1) For the purposes of subsection 116A(2) of the Act, each of the following countries is declared to be a country in relation to which each provision of Part IXA of the Act applies:
Brunei;
Canada;
Fiji;
Malaysia;
New Zealand;
Papua New Guinea;
Republic of Singapore;
Thailand;
Tonga;
United Kingdom of Great Britain and Northern Ireland;
United States of America.
(2) For the purposes of subsection 116A(2) of the Act, each of the following countries is declared to be a country in relation to which each provision of Divisions 1 and 3 of Part IXA of the Act applies:
(a) Argentina;
(b) Bangladesh;
(c) Brazil;
(d) Chile;
(e) China;
(f) Czech Republic;
(g) Denmark;
(h) Egypt;
(i) Federal Republic of Germany;
(j) France;
(k) Hungary;
(l) Ireland;
(m) Italy;
(n) Jordan;
(o) Kenya;
(p) Kingdom of Cambodia;
(q) Mozambique;
(r) Nepal;
(s) Norway;
(t) Pakistan;
(u) Poland;
(v) Portugal;
(w) Republic of Korea;
(x) Republic of the Philippines;
(y) South Africa;
(z) Spain;
(aa) Sri Lanka;
(ab) Sweden;
(ac) Uruguay;
(ad) Zimbabwe.
45 Form of warrant
The form in Schedule 1 is prescribed for the purposes of section 116F of the Act.
46 Sentences imposed by service tribunals of other countries
(1) Where:
(a) a member of the Defence Force is attached temporarily to the forces of a country in relation to which section 116B of the Act applies; and
(b) while he is so attached, a sentence is passed, or a punishment is imposed, on that member by a service tribunal of that country outside Australia;
the sentence or punishment is as valid and effectual, and, to the extent to which it has not been executed outside Australia, may be executed or enforced in Australia, as if it had been passed or imposed by a court martial constituted under the Defence Force Discipline Act 1982.
(2) This regulation does not authorize the carrying into effect of a sentence of death passed on a member of the Defence Force by a service tribunal of a country in relation to which section 116B of the Act applies.
47 Evidence of facts by certificate
For the purpose of legal proceedings within Australia, the Minister may, by writing under his hand, certify that:
(a) on a date specified in the certificate a person named in the certificate was a member of the Defence Force attached temporarily to the forces of a country specified in the certificate, being a country in relation to which section 116B of the Act applies;
(b) on that date a service tribunal specified in the certificate, being a service tribunal of that country, passed a sentence, or imposed a punishment, set out in the certificate on the person named in the certificate; and
(c) the sentence or punishment, or such part of it as is specified in the certificate, has not been executed or enforced;
and the certificate is, upon its production in those proceedings, sufficient evidence of the facts so certified, unless the contrary is proved.
Part XI—Defence practice areas
48 Interpretation of Part XI
In this Part, unless the contrary intention appears:
Commonwealth land means land belonging to, or in the occupation of, the Commonwealth or a public authority under the Commonwealth but does not include land the subject of a lease from the Commonwealth unless that lease is subject to the condition that the land may be used by the Defence Force or an arm of the Defence Force for carrying out a defence operation or practice of a kind specified in a notice under subregulation 49(1).
constable means a member of the police force of a State or Territory.
defence operation or practice means a naval or military, or an air force, operation or practice.
defence practice area means any area of land, sea or air declared by the Minister under regulation 49.
equipment includes structure.
install includes construct, maintain and place.
private land means land that is not Commonwealth land.
public authority under the Commonwealth means a body, not being an incorporated company or association, constituted by or under a law of the Commonwealth or a Territory.
49 Declaration of defence practice area
(1) The Minister may, by notice published in the Gazette, declare any area of land, sea or air in or adjacent to Australia to be a defence practice area for carrying out a defence operation or practice of a kind specified in the notice.
(2) The Minister shall not make a declaration under subregulation (1) in respect of private land unless:
(a) the consent in writing of the occupier of the land has first been obtained; or
(b) it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out on that land a defence operation or practice of a kind specified in the notice without that consent.
(3) The Minister shall not, in a notice under subregulation (1), declare an area of sea or air to be a defence practice area unless it is an area of sea or air in which it is necessary or expedient in the interests of the safety or defence of the Commonwealth to carry out a defence operation or practice of the kind specified in the notice.
(4) Where the Minister declares a defence practice area under subregulation (1), a service chief may from time to time, by notice published in the Gazette, authorise the installation, for a period not exceeding 2 years that is specified in the notice, of equipment for defence purposes:
(a) in an area of sea that is, or is part of, the defence practice area; or
(b) on the sea‑bed or in the subsoil beneath that area; or
(c) in the superjacent waters.
50 Tabling and disapproval of declarations
(1) Where private land is the subject of a declaration made under subregulation 49(1), the Minister shall cause a copy of the declaration to be laid before each House of the Parliament within 15 sitting days of that House after the date on which the declaration was made.
(1A) If a copy of a declaration is not laid before each House of the Parliament in accordance with the provisions of subregulation (1), the declaration shall be void and of no effect.
(2) If either House of the Parliament, within 15 sitting days of that House after a copy of a declaration referred to in subregulation (1) has been laid before that House, passes a resolution disapproving of the declaration, then:
(a) if the declaration has not come into operation—it shall not come into operation; or
(b) if the declaration has come into operation—the declaration shall cease to have effect on the day on which the resolution is passed.
51 Authorisation to carry out a defence operation or practice
(1) The Chief of the Defence Force, the Secretary or a Service Chief may authorise the carrying out of a defence operation or practice in a defence practice area by:
(a) members of the Defence Force; or
(b) members of the armed forces of a country other than Australia; or
(c) members of the Defence Force and members of the armed forces of a country other than Australia.
(2) An authorisation under subregulation (1):
(a) must be in writing; and
(b) must specify the time when the defence operation or practice will take place.
52 Notice to public of operation or practice
(1) Where, under subregulation 51(1), a person authorizes the carrying out of a defence operation or practice, that person shall cause such notice of the operation or practice to be given as is reasonably required for the protection of persons or property that may be affected by that operation or practice having regard to:
(a) the time and place of the carrying out of the operation or practice;
(b) the nature of the equipment and ammunition proposed to be used in the course of that operation or practice and the risk to those persons or that property or the injury or damage that is likely to arise from that use; and
(c) the forms of communication available to that person for the giving of that notice to the public.
(2) Where a person authorises the installation of equipment under subregulation 49(4), the person must cause such notice:
(a) of the installation as is reasonably required to advise persons in reasonable proximity, within the defence practice area concerned, of the place where the equipment is installed; and
(b) of activities of those persons that would be likely to disturb the equipment or interfere with its operation;
to be given to those persons, having regard to:
(c) the nature of the equipment; and
(d) the risk of damage to the equipment or interference with its operation; and
(e) the forms of communication available to that person for the giving of that notice to those persons.
53 Offences relating to a defence practice area
(1) A person is guilty of an offence if the person is in a defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out in that area of a defence operation or practice.
Penalty: 5 penalty units or imprisonment for 3 months, or both.
(2) A person is guilty of an offence if the person permits a vehicle, vessel or aircraft to be in a defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out in that area of a defence operation or practice.
Penalty: 5 penalty units or imprisonment for 3 months, or both.
(3) A person is guilty of an offence if the person engages in conduct that disturbs, or interferes with, the operation of, equipment, the installation of which is authorised under subregulation 49(4).
Penalty: 5 penalty units or imprisonment for 3 months, or both.
(4) The Chief of the Defence Force, the Secretary or the Service Chief or other officer who authorised a defence operation or practice, or an officer participating in that operation or practice may give permission, in accordance with subregulation (6), for a person:
(a) to be in the defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out in that area of a defence operation or practice; or
(b) to permit a vehicle, vessel or aircraft to be in the defence practice area at a time specified in an instrument under subregulation 51(1) relating to the carrying out in that area of a defence operation or practice.
(5) The Chief of the Defence Force, the Secretary, a Service Chief or an officer participating in a defence operation or practice in relation to which the equipment was installed, may give permission, in accordance with subregulation (6), for a person to engage in conduct that may or will disturb, or interfere with, the operation of equipment the installation of which is authorised under subregulation 49(4).
(6) Permission under subregulation (4) or (5):
(a) may be given if it is reasonably required for the protection of persons and property in the defence practice area or for the safety or defence of the Commonwealth; and
(b) must be in writing; and
(c) is effective for the period that is specified in the instrument; and
(d) may be subject to conditions specified in the instrument as are reasonably required for the protection of persons and property in the defence practice area, or for the safety or defence of the Commonwealth; and
(e) may be subject to conditions in relation to the conduct of persons in a defence practice area or in relation to a vehicle, vessel or aircraft in that area.
(7) A person is guilty of an offence if the person engages in conduct that breaches a condition of a permission given to the person under subregulation (4) or (5).
Penalty: 5 penalty units or imprisonment for 3 months, or both.
(8) A person is guilty of an offence against subregulation (2) or (7) if:
(a) a vehicle, vessel or aircraft is in a defence practice area; and
(b) the person is:
(i) in the case of a vehicle—the driver, owner or hirer of the vehicle; or
(ii) in the case of a vessel—the master, owner or charterer of the vessel, or the agent for the vessel; or
(iii) in the case of an aircraft—the pilot, owner or charterer of the aircraft, or the agent for the aircraft; and
(c) another person is guilty of an offence against the same subregulation (otherwise than because of this subregulation) in connection with the vehicle, vessel or aircraft.
(8A) A person is not liable to be punished more than once in respect of the same offence.
(9) An offence under subregulation (1), (2), or (7) is an offence of strict liability.
(10) It is a defence to a prosecution under subregulation (1) or (2) that the defendant had permission under subregulation (4).
(11) It is a defence to a prosecution under subregulation (3) that the defendant had permission under subregulation (5).
(12) It is a defence to a prosecution under subregulation (1), (2) or (7) that the defendant had a reasonable excuse.
(13) It is a defence to a prosecution under subregulation (2) or (7), because of subregulation (8), that the defendant did not know of the conduct constituting the primary offence.
54 Removal from defence practice area
(1) A person:
(a) who, in contravention of regulation 53, is, or permits a vehicle, vessel or aircraft to be, in a defence practice area at a time specified in an instrument under subregulation 51(1); or
(b) who fails to comply with a condition specified in an instrument of permission given to that person under regulation 53;
may, without affecting any other proceedings that may be taken against the person, be removed from the area by, or under the direction of, a member of the Defence Force, a member or special member of the Australian Federal Police or a constable.
(2) Any vehicle, vessel or aircraft in a defence practice area in contravention of regulation 53 may be removed from the area by, or under the direction of, a member of the Defence Force, a member or special member of the Australian Federal Police or a constable.
55 Duties etc of authorized officers
Where a member of the Defence Force gives a direction to a person under regulation 54, the member shall, if requested by that person, produce evidence that he or she is a member of the Defence Force for inspection by that person and, if the member fails to do so, that person is not obliged to comply with that direction.
56 Obstructing or hindering member of Defence Force etc
(1) A person is guilty of an offence if the person obstructs or hinders:
(a) a member of the Defence Force; or
(b) a member or special member of the Australian Federal Police; or
(c) a constable;
in the exercise by the member, special member or constable of a power conferred by this Part.
Penalty: 5 penalty units or imprisonment for 3 months, or both.
(2) A person is guilty of an offence if the person obstructs or hinders a person acting under a direction referred to in regulation 54.
Penalty: 5 penalty units or imprisonment for 3 months, or both.
(3) An offence against subregulation (1) or (2) is an offence of strict liability.
(4) It is a defence to a prosecution for an offence against subregulation (1) or (2) that the defendant had a reasonable excuse.
57 Compensation for loss, injury or damage
(1) The Commonwealth shall pay reasonable compensation to a person who:
(a) sustains loss or damage by reason of entry upon, and survey of, land in accordance with regulation 58;
(b) sustains loss or damage by reason that an area is declared to be a defence practice area under subregulation 49(1);
(c) sustains loss or damage by reason of the use of land for the purposes of a defence operation or practice authorized under regulation 51; or
(d) sustains loss or damage otherwise caused by the operation of this Part.
(2) A claim for compensation under this regulation shall:
(a) be in writing, signed by the person making the claim; and
(b) be addressed to the Secretary.
(3) Where no decision is made in respect of a claim for compensation within the period of 60 days after the date on which the claim was made, a decision refusing compensation shall be deemed to have been made.
57A Review of decisions: compensation
(1) In this regulation, reviewing authority means:
(a) a person appointed under subregulation (4) or (5); or
(b) a board constituted by the Secretary under subregulation (4) or (5);
as the case may be.
(2) A person aggrieved by:
(a) a decision refusing to pay compensation under regulation 57; or
(b) a decision with respect to the amount of compensation paid or offered to be paid under that regulation;
may apply in writing addressed to the Secretary for a review of the decision.
(3) An application under subregulation (2) shall:
(a) be signed by the person making the application;
(b) be made within 30 days:
(i) where the decision is deemed to have been made by virtue of subregulation 57(3)—after the expiration of the period of 60 days referred to in that subregulation; or
(ii) in any other case—after receipt by the person of notification of the decision;
or within such longer period as the Secretary, within 30 days after the date on which the application was sought to be made, in writing determines; and
(c) set out the reasons for making the application.
(4) The Secretary may:
(a) appoint a person; or
(b) constitute a board comprising such persons as the Secretary in writing determines;
for the purpose of reviewing decisions in respect of which application has been made under subregulation (2).
(5) The Secretary shall, within 21 days after the making of an application under subregulation (2), refer the application to a person appointed, or a board constituted, under subregulation (4) or shall:
(a) appoint a person, or constitute a board comprising such persons as the Secretary determines, for the purpose of reviewing the decision in respect of which the application was made; and
(b) refer the application to the person so appointed or the board so constituted, as the case may be.
(6) A reviewing authority to which a decision referred to in subregulation (2) has been referred shall, within 60 days after the date on which the decision was referred:
(a) affirm the decision;
(b) vary the decision; or
(c) set aside the decision and make a decision in substitution for that decision.
(7) Where:
(a) a reviewing authority makes a decision under subregulation (6); or
(b) the Secretary makes a decision under subregulation (3) refusing to extend the period in which an application may be lodged under that subregulation;
the reviewing authority or Secretary, as the case requires, shall cause a statement in writing to be given to the person whose interests are affected by the decision, setting out the decision and giving reasons for the decision.
(8) A statement referred to in subregulation (7) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, a person whose interests are affected by the decision to which the statement relates is entitled to apply to the Administrative Appeals Tribunal for a review of the decision.
(9) The validity of a decision to which a statement under subregulation (7) relates shall not be taken to be affected by a failure to comply with subregulation (8).
(10) Application may be made to the Administrative Appeals Tribunal for a review of a decision:
(a) of the Secretary refusing to extend the period in which an application may be lodged under subregulation (3); or
(b) of a reviewing authority making a decision of the kind referred to in subregulation (6).
57B Delegation by Secretary
The Secretary may delegate, in writing, a power of the Secretary under this Part (other than a power that may be delegated under regulation 57BA, 57BB or 57BC, or this power of delegation) to:
(a) an officer of the Navy who holds the rank of Captain or a higher rank; or
(b) an officer of the Army who holds the rank of Colonel or a higher rank; or
(c) an officer of the Air Force who holds the rank of Group Captain or a higher rank; or
(d) an APS employee with the classification level of at least Executive Level 2 or an equivalent classification; or
(e) an APS employee who is acting in a position usually occupied by a person with a classification level of the kind mentioned in paragraph (d).
57BA Delegation of power to authorise defence operation or practice involving Defence Force only
(1) This regulation applies to the power under regulation 51 to authorise an operation or practice in which no members of the armed forces of a country other than Australia are to take part.
(2) The Secretary may delegate, in writing, the power mentioned in subregulation (1) to:
(a) an officer of the Navy who holds the rank of Lieutenant Commander or a higher rank; or
(b) an officer of the Army who holds the rank of Major or a higher rank; or
(c) an officer of the Air Force who holds the rank of Squadron Leader or a higher rank; or
(d) an APS employee with the classification level of at least Executive Level 1 or an equivalent classification; or
(e) an APS employee who is acting in a position usually occupied by a person with a classification level of the kind mentioned in paragraph (d).
(3) The Chief of the Defence Force may delegate, in writing, the power mentioned in subregulation (1) to:
(a) an officer of the Navy who holds the rank of Lieutenant Commander or a higher rank; or
(b) an officer of the Army who holds the rank of Major or a higher rank; or
(c) an officer of the Air Force who holds the rank of Squadron Leader or a higher rank.
(4) A Service Chief may delegate, in writing, the power mentioned in subregulation (1):
(a) in the case of the Chief of Navy to an officer of the Navy who holds the rank of Lieutenant Commander or a higher rank;
(b) in the case of the Chief of Army to an officer of the Army who holds the rank of Major or a higher rank;
(c) in the case of the Chief of Air Force to an officer of the Air Force who holds the rank of Squadron Leader or a higher rank.
57BB Delegation of power to authorise joint defence operation or practice
(1) This regulation applies to the power under regulation 51 to authorise a defence operation or practice in which members of the Defence Force and the armed forces of a country other than Australia are to take part.
(2) The Secretary may delegate, in writing, the power mentioned in subregulation (1) to:
(a) an officer in the Navy who holds the rank of Commodore or a higher rank; or
(b) an officer in the Army who holds the rank of Brigadier or a higher rank; or
(c) an officer in the Air Force who holds the rank of Air Commodore or a higher rank; or
(d) an SES employee or acting SES employee performing duty in the Department.
(3) The Chief of the Defence Force may delegate, in writing, the power mentioned in subregulation (1) to:
(a) an officer in the Navy who holds the rank of Commodore or a higher rank; or
(b) an officer in the Army who holds the rank of Brigadier or a higher rank; or
(c) an officer in the Air Force who holds the rank of Air Commodore or a higher rank.
(4) A Service Chief may delegate, in writing, the power mentioned in subregulation (1):
(a) in the case of the Chief of Navy to an officer of the Navy who holds the rank of Commodore or a higher rank;
(b) in the case of the Chief of Army to an officer of the Army who holds the rank of Brigadier or a higher rank;
(c) in the case of the Chief of Air Force to an officer of the Air Force who holds the rank of Air Commodore or a higher rank.
57BC Delegation of power to permit conduct that may disturb or interfere with the operation of equipment
(1) This regulation applies to the power under subregulation 53(5) to permit a person to engage in conduct that may or will disturb, or interfere with, the operation of equipment the installation of which is authorised under subregulation 49(4).
(2) The Secretary may delegate, in writing, a power mentioned in subregulation (1) to:
(a) an officer of the Navy who holds the rank of Lieutenant Commander or a higher rank; or
(b) an officer of the Army who holds the rank of Major or a higher rank; or
(c) an officer of the Air Force who holds the rank of Squadron Leader or a higher rank; or
(d) an APS employee with the classification level of at least Executive Level 1 or an equivalent classification; or
(e) an APS employee who is acting in a position usually occupied by a person with a classification level of the kind mentioned in paragraph (d).
(3) The Chief of the Defence Force may delegate, in writing, a power mentioned in subregulation (1) to:
(a) an officer of the Navy who holds the rank of Lieutenant Commander or a higher rank; or
(b) an officer of the Army who holds the rank of Major or a higher rank; or
(c) an officer of the Air Force who holds the rank of Squadron Leader or a higher rank.
(4) A Service Chief may delegate, in writing, a power mentioned in subregulation (1):
(a) in the case of the Chief of Navy to an officer of the Navy who holds the rank of Lieutenant Commander or a higher rank;
(b) in the case of the Chief of Army to an officer of the Army who holds the rank of Major or a higher rank;
(c) in the case of the Chief of Air Force to an officer of the Air Force who holds the rank of Squadron Leader or a higher rank.
57C Other defence operations and practices
Nothing in this Part shall be taken to affect or limit in any way the power of the Commonwealth to undertake defence operations and practices otherwise than in an area declared under regulation 49.
Part XII—Surveys
58 Authority to enter land
(1) Subject to subregulation (2), the Minister may, with the consent in writing of the occupier of land, by instrument, authorize the Defence Force or an arm of the Defence Force, either generally or as otherwise provided in the instrument, to enter upon and survey land for the purposes of the Act or these Regulations.
(2) Where it is necessary or expedient in the interests of the safety or defence of the Commonwealth, the Minister may, without the consent of the occupier of land, by instrument, authorize the Defence Force or an arm of the Defence Force, either generally or as otherwise provided in the instrument, to enter upon and survey land for the purposes of the Act or these Regulations.
(3) A person must not remove, or interfere with, a survey mark placed upon land in the course of a survey carried out under this regulation.
Penalty: 1 penalty unit.
Part 12A—Provision of certain goods and services for Defence Force members
Division 1—Interpretation
58A Definition for Part 12A
In this Part:
member means a member of the Defence Force (including the Reserves) rendering continuous full‑time service.
Division 2—Furniture and electricity
58C Provision of furniture
(1) If the Commonwealth provides furniture for use in married quarters occupied by a member, or any of the member’s family, the Minister may determine, in writing, the charge the member must pay for the use of the furniture.
(2) The amount of the charge is a debt due to the Commonwealth.
(3) Without affecting its right to recover an amount payable under this regulation by other means, the Commonwealth may deduct the amount from the member’s salary and allowances.
58D Provision of electricity
(1) If:
(a) the Commonwealth:
(i) supplies electricity to married quarters occupied by a member or any of the member’s family; or
(ii) pays for the supply of electricity to the quarters; and
(b) the quarters do not have a meter that measures how much electricity is used;
the Minister may determine, in writing, the charge the member must pay for the supply of the electricity.
(2) The amount of the charge is a debt due to the Commonwealth.
(3) Without affecting its right to recover an amount payable under this regulation by other means, the Commonwealth may deduct the amount from the member’s salary and allowances.
Division 3—Medical and dental treatment
58E Provision of medical and dental treatment
(1) The Commonwealth must arrange for the provision of medical and dental treatment that is necessary to keep a member fit for the performance of the member’s duties.
(2) The provision of medical or dental treatment under subregulation (1) is not required to be in accordance with a law of a State or Territory if the provision of the treatment complies with a Defence Instruction (General).
(3) The Commonwealth must arrange for the supply of pharmaceuticals that is necessary in order to comply with subregulation (1).
(4) The supply of pharmaceuticals under subregulation (3) is not required to be in accordance with a law of a State or Territory if the supply complies with a Defence Instruction (General).
(5) In this regulation:
pharmaceuticals includes any ingredient, compound, material or preparation that is mentioned in the current Poisons Standard prepared under subsection 52D(2) of the Therapeutic Goods Act 1989.
supply, in relation to pharmaceuticals, includes any activity in relation to pharmaceuticals, such as transport, storage, and possession, that is necessary in order to comply with this regulation.
58G Recovery of the costs of treatment in certain circumstances
(1) This regulation applies to a member if:
(a) the Commonwealth provides medical or dental treatment to the member under regulation 58E; and
(b) the Minister determines, in writing, that he or she is satisfied that the member may have an enforceable claim for damages against a person for the illness or injury the subject of the treatment.
(2) The Minister may, in writing, require the member to pay an amount to the Commonwealth for the treatment.
(3) The amount is a debt due to the Commonwealth.
(4) The amount must not exceed:
(a) for each day on which the member was treated as an in‑patient at a service or Repatriation hospital in a State—an amount calculated according to Schedule 2; or
(b) for any other medical or dental treatment—the expense actually incurred by the Commonwealth.
(5) In calculating an amount referred in paragraph (4)(a), the day on which the member enters a hospital as an in‑patient, and the day on which the member ceases to be an in‑patient of the hospital, are counted as a single day.
(6) Without affecting its right to recover an amount payable under this regulation by other means, the Commonwealth may deduct the amount from the member’s salary and allowances.
(7) In paragraph (1)(b) and subregulation (2), a reference to a member includes a reference to a person:
(a) to whom treatment was provided as a member; and
(b) who ceases to be a member at any time after receiving the treatment.
Part XIII—Suspension and forfeiture of salary and allowances
59 Interpretation
(1) In this Part, unless the contrary intention appears:
allowance in relation to a member, is a reference to an allowance that, apart from the provisions of this Part, is payable to the member under service law in respect of his or her service in the Defence Force.
foreign country includes a state, province or similar division of a foreign country.
member means a member of the Permanent Forces and includes any member of the Defence Force rendering continuous full‑time service.
offence includes an offence against the law of a foreign country.
police custody, in relation to a member, means detention of the member by one or more members of:
(a) the Australian Federal Police;
(b) a police force of a State or Territory; or
(c) a police force of a foreign country;
in connection with an offence which the member is alleged to have, or is suspected of having, committed, whether or not the member has been charged with that or any other offence during that custody.
salary, in relation to a member, is a reference to salary that, apart from the provisions of this Part, is payable to the member under service law in respect of his or her service in the Defence Force.
service law means any law that applies in relation to a person by reason only that the person is a member and includes a determination under section 58B or 58H of the Act.
(2) For the purposes of this Part, the salary or allowances, or salary and allowances:
(a) that is or are payable to a member; or
(b) that would, but for this Part, have been payable to a member;
during a period, shall be deemed to accrue from day to day during that period.
(3) In this Part, a reference to the absence of a member without leave shall be read as a reference to any absence from, or cessation of performance of, duty by the member that is not authorised under service law.
(4) For the purposes of this Part, a member who is absent from duty:
(a) while in civil custody; or
(b) during a period of imprisonment imposed on the member upon conviction of an offence;
shall not be regarded as being absent without leave.
(5) In this Part, a reference to the absence of a member while in civil custody shall be read as a reference to any absence from duty by the member where, otherwise than under service law, the member is held in police custody or is otherwise detained in custody pending, or during, the trial of the member for an offence.
(6) For the purposes of this Part, where a member:
(a) otherwise than under service law, is held in police custody or is otherwise detained in custody pending, or during, the trial of the member for an offence and, during the period of that detention, the member is authorised under service law to be absent from duty; or
(b) is undergoing a period of imprisonment imposed on the member upon conviction of an offence;
the member shall not be regarded as being absent while in civil custody.
60 Suspension of salary and allowances
(1) Subject to this Part, where a member is absent without leave, or is absent while in civil custody, for 24 hours or more, payment to the member of his or her salary and allowances is suspended.
(2) Subject to subregulation (3), a suspension under subregulation (1) in respect of the salary and allowances of a member operates in relation to the salary and allowances that accrue to the member on and after the day following the day on which the member first so became absent.
(3) A suspension under subregulation (1) in respect of the salary and allowances of a member who has been absent without leave or while in civil custody does not operate in relation to the salary or allowances that accrue to the member after he or she returns to duty.
61 Certificate of commanding officer
(1) Where a member has been absent without leave and that member’s commanding officer has reasonable grounds for believing:
(a) that that absence was not an offence against service law; or
(b) that there was a reasonable excuse for the absence;
the commanding officer shall issue a certificate to that effect.
(2) Where a certificate is issued under subregulation (1) in respect of a member’s absence without leave, the suspension effected by regulation 60 in respect of that absence ceases.
(3) Where a commanding officer, who has issued, under subregulation (1), a certificate in respect of the absence without leave of a member, finds that there are no reasonable grounds for the belief on the basis of which the certificate was issued, the commanding officer shall, by writing, revoke the certificate.
(4) Subject to this Part, where a certificate issued under subregulation (1) in respect of a member’s absence without leave is revoked under subregulation (3), payment to the member of his or her salary and allowances is suspended.
(5) A suspension under subregulation (4) in respect of the salary and allowances of a member operates in relation to:
(a) any salary and allowances that accrued to the member during the period:
(i) commencing at the end of the day on which he or she first so became absent; and
(ii) ending immediately before the day on which the certificate was revoked;
and which remained unpaid when the certificate was revoked; and
(b) subject to subregulation (6), the salary and allowances that accrue to the member on and after the day on which the certificate was revoked.
(6) A suspension under subregulation (4) in respect of the salary and allowances of a member does not operate in relation to the salary and allowances that accrue to the member after he or she returns to duty.
62 Effect of suspension
(1) Where payment of the salary and allowances of a member is suspended under this Part, no part of the salary or allowances to which that suspension relates is payable to that member.
(2) The suspension under this Part of payment of the salary and allowances of a member does not affect any right that the member may have to receive payment of the whole or any part of the salary or allowances to which that suspension relates if that suspension ceases otherwise than by virtue of a forfeiture of that salary or those allowances, or both.
63 Cessation of suspension: absence without leave
(1) In this regulation:
duty, in relation to a member, means duty under the command of the member’s commanding officer.
prescribed period, in relation to a member who has been absent without leave, means the period of 14 days commencing at the end of the day on which the member returns to duty.
suspension, in relation to a member, means the suspension under this Part of the payment of salary and allowances to that member by reason of the absence without leave of that member.
(2) Where a member subject to a suspension returns to duty after being absent without leave, that suspension continues to apply to the salary and allowances to which it relates after the return to duty of the member and, unless it earlier ceases, ceases:
(a) if within the prescribed period for that member is not charged under service law with an offence on the ground of that absence or any part of it—at the end of that period;
(b) if within the prescribed period for that member the member is so charged and a direction is given that the charge be not proceeded with—when that direction is given;
(c) if within the prescribed period for that member the member is so charged and the charge is dismissed—when the charge is dismissed; or
(d) if within the prescribed period for that member the member is so charged and the member is acquitted of the offence—when the member is acquitted.
64 Cessation of suspension—civil custody
(1) In this regulation, suspension, in relation to a member, means the suspension under this Part of the payment of salary and allowances to that member by reason of the absence from duty of that member while in civil custody.
(2) Where a member subject to a suspension returns to duty from civil custody having been in civil custody by reason of an act which the member is alleged to have done, or is suspected of having done, and during the period of that absence:
(a) the member was not charged under a law, other than service law, with an offence constituted by the doing of that act; or
(b) the member was so charged and:
(i) the charge was withdrawn;
(ii) the charge was dismissed;
(iii) the member was acquitted of the offence; or
(iv) the charge was found to be proved but a decision was made by the court hearing the charge not to convict the member of an offence;
that suspension ceases when the member so returns to duty.
(3) In subregulation (2), the reference to the doing of an act includes a reference to the omission to do an act.
65 Forfeiture of salary and allowances—absence without leave
Where a member is absent without leave for a period that continues for 24 hours or more and:
(a) the member is convicted of being absent without leave in respect of that period;
(b) during that absence the member, under a law other than service law, is convicted of an offence for which a sentence of imprisonment is imposed; or
(c) that absence is the reason for which the member is discharged from an arm of the Defence Force;
the member, upon that conviction or discharge, as the case may be, forfeits all salary and allowances that accrued to the member during the period:
(d) that begins at the end of the day on which the member first became so absent; and
(e) that ends at the end of the day on which the member ceased to be so absent.
66 Forfeiture of salary and allowances—civil custody
(1) Where by reason of an act which a member is alleged to have done, or is suspected of having done, the member is:
(a) absent while in civil custody for a period that continues for 24 hours or more; and
(b) convicted under a law, other than service law, of an offence which is constituted by the doing of that act;
the member, upon that conviction, forfeits all salary and allowances that accrued to the member during the period:
(c) that begins at the end of the day on which the member first became so absent; and
(d) that ends at the end of the day on which the member ceased to be so absent.
(2) In subregulation (1), the reference to the doing of an act includes a reference to the omission to do an act.
67 Forfeiture of salary and allowances—imprisonment
(1) Where a member is convicted of an offence for which a sentence of imprisonment is imposed, the member, upon that conviction, forfeits all salary and allowances that accrue to the member during the period:
(a) that begins at the end of the day on which the member is so convicted; and
(b) that ends at the end of the day on which the member ceases to serve that sentence, or ceases to be a member, whichever first occurs.
(2) A period of imprisonment referred to in subregulation (1) does not include weekend or periodic detention.
(3) In subregulation (2), weekend or periodic detention means detention or imprisonment pursuant to a law, other than service law, providing for:
(a) weekend detention or imprisonment; or
(b) periodic detention or imprisonment.
68 Forfeiture of salary and allowances—detention under service law
(1) Where under service law a member is undergoing the punishment of detention for a period, the member forfeits:
(a) so much of the member’s salary that accrues during that period as exceeds the amount of salary that would have accrued to the member during that period if the member had during that period been a normal entry recruit undergoing basic recruit training as specified in Determination No. 6 of 1992, Salaries, made under section 58H of the Defence Act 1903, as in force from time to time; and
(b) all allowances that accrue to the member in respect of that period, other than the allowance provided for under Defence Determination 2000/1, made under section 58B of the Act, as in force from time to time as modified from time to time by determinations made under section 58H of that Act.
(2) Where under service law a member of the Reserves rendering service other than continuous full‑time service is undergoing the punishment of detention for a period, that member forfeits:
(a) so much of the member’s salary that accrues during that period as exceeds the amount of salary that would have accrued to the member during that period if the member had during that period been a normal entry recruit undergoing basic recruit training as specified in Determination No. 6 of 1992, Salaries, made under section 58H of the Defence Act 1903, as in force from time to time; and
(b) all allowances that accrue to the member in respect of that period.
(3) In subregulation (2), allowance, salary and service law have the same respective meanings in relation to a member referred to in that subregulation as they have in relation to a member.
69 Conviction quashed or set aside
(1) In this regulation, member includes a member referred to in subregulation 68(2).
(2) Where under this Part the salary and allowances of a member have been forfeited in whole or part by reason of the conviction of the member for an offence and:
(a) subject to paragraph (b), that conviction is quashed or set aside, an amount equal to the amount of the salary and allowances so forfeited is payable to the member;
(b) that conviction is quashed or set aside and another conviction substituted or the member is ordered to be tried again for the offence or for another offence, no amount referred to in paragraph (a) is payable to the member; or
(c) that conviction is quashed or set aside and at a further trial of the member for that offence or another offence the court or service tribunal acquits the member or decides that the member should not be convicted of an offence, the amount referred to in paragraph (a) is payable to the member.
70 Death of a member during suspension
(1) Where:
(a) a member dies while absent without leave or the Minister directs in writing that the death of the member is to be presumed to have occurred while the member was absent without leave; and
(b) payment of salary and allowances to the member was, at the time of death or presumed death of the member, suspended under this Part;
the Minister shall:
(c) if the Minister decides that there are reasonable grounds for believing that the member did not have a reasonable excuse for that absence—by writing order the forfeiture of all salary and allowances that accrued to the member during the period:
(i) that began at the end of the day on which the member first became so absent; and
(ii) that ended at the end of the day on which the member died or was presumed to die; or
(d) if the Minister decides that there are no reasonable grounds for believing that the member did not have a reasonable excuse for that absence—that suspension shall then cease.
(2) Where a member dies while absent in civil custody and payment of salary and allowances to the member was, at the time of death, suspended under this Part, that suspension shall then cease.
71 Review of decisions
(1) Where the Minister makes a decision to order the forfeiture of salary and allowances of a member under subregulation 70(1), the Minister shall, by notice in writing given not later than 30 days after the date of the decision, inform the person or persons whose interests are affected by the decision of the making of the decision and of the grounds for the decision.
(2) An application may be made to the Administrative Appeals Tribunal for review of a decision referred to in subregulation (1).
(3) A notice referred to in subregulation (1) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.
(4) A failure to comply with the requirements of subregulation (3) in relation to a decision shall not be taken to affect the validity of a decision.
(5) For the purposes of subsection 25(6) of the Administrative Appeals Tribunal Act 1975, the operation of subsection 43(1) of that Act is, in relation to an application referred to in subregulation (2), modified by omitting paragraphs (a), (b) and (c) and substituting the following paragraphs:
“(a) affirming the decision under review; or
(b) setting aside the decision under review and making a decision, in substitution for the decision so set aside, to pay to the legal personal representative of a member referred to in subregulation 70(1) of the Defence Force Regulations an amount equal to the amount of all salary and allowances that accrued to the member during the period referred to in paragraph 70(1)(c) of those Regulations.”.
72 Recovery of forfeited amounts
(1) Where a member receives an amount which comprises in whole or part salary or allowances that have been forfeited under this Part, the member shall repay to the Commonwealth an amount equal to the amount of that salary or those allowances.
(2) Without affecting the right of the Commonwealth to recover by any other means an amount repayable by a member under subregulation (1), an amount equal to that amount may be deducted from any salary or allowances payable to the member.
Part XIIIA—Delegations by the Minister
72A Delegations of power to make determinations
(1) For section 58E of the Act, the Minister may by instrument delegate to a person mentioned in subregulation (2) the power under subsection 58B (1) of the Act to make determinations about the following matters:
(a) the remuneration of members or cadets;
(b) the payment of allowances or other pecuniary benefits, not being allowances or benefits by way of remuneration, to
or in respect of members or cadets, including the payment of additional compensation to members of the Reserves
to whom compensation is payable under the Safety, Rehabilitation and Compensation Act 1988;
(c) the payment of allowances or other pecuniary benefits to or in respect of members of the families of members or cadets;
(d) leave of absence and long service leave of members;
(e) the provision of other benefits to or in respect of members or cadets, or to or in respect of members of the families of members or cadets;
(f) the payment of allowances and expenses to or in respect of, and the provision of travelling facilities for, applicants for appointment or engagement as members in respect of attendance at an enlistment centre of the Defence Force or attendance for interview or examination;
(g) deductions from the remuneration of a member or cadet or from allowances or other pecuniary benefits referred to in paragraphs (b) and (c); and
(h) the meanings to be attributed to words and expressions used in existing determinations and future determinations made under section 58B of the Act, and the circumstances in which those meanings are to apply.
(2) The following persons may be delegates under subregulation (1):
(a) the Secretary of the Department;
(b) an SES employee performing duty in the Department;
(c) any other APS employee who, for the time being, is performing duties in the Department at a classification for which the minimum rate of salary exceeds the maximum rate of salary that applies to the Executive Level 1 classification in the Department;
(d) an officer of the Navy who holds the rank of Captain, or a higher rank;
(e) an officer of the Army who holds the rank of Colonel, or a higher rank;
(f) an officer of the Air Force who holds the rank of Group Captain, or a higher rank.
Part XIV—Payment of fines
73 Re‑imbursement of the Commonwealth
(1) In this regulation:
court includes a court of a foreign country.
foreign country includes a state, province or similar division of a foreign country.
offence means an offence against any law other than the Defence Force Discipline Act 1982 and includes an offence against the law of a foreign country.
(2) Where a member charged with an offence is ordered by a court to pay an amount as a fine or other pecuniary penalty or as damages, reparation, compensation or costs and the Commonwealth pays the whole or part of that amount, the amount so paid is a debt due and payable by the member to the Commonwealth.
(3) Without affecting the right of the Commonwealth to recover by any other means a debt payable by a member under subregulation (2), an amount equal to the amount of that debt may be deducted from any salary or allowances payable to the member.
Part 15—Redress of grievances
74 Interpretation
In this Part, unless the contrary intention appears:
complaint means a complaint made under regulation 75.
external process includes, but is not limited to, the following:
(a) proceedings before a civilian court;
(b) proceedings before a civilian tribunal;
(c) an investigation by:
(i) the Commonwealth Ombudsman; or
(ii) the Australian Human Rights Commission; or
(iii) the Australian Information Commissioner performing the privacy functions; or
(iv) a State or Territory equivalent of a body referred to in subparagraphs (i) to (iii).
Note: Privacy functions has the meaning given by section 9 of the Australian Information Commissioner Act 2010.
service means service as:
(a) a member of the Permanent Forces; or
(b) a member of the Reserves who is:
(i) rendering continuous full‑time service; or
(ii) on duty.
service chief means the Chief of Navy, the Chief of Army, or the Chief of Air Force.
termination decision means a decision, under Part VIIIA of the Act or under the Defence (Personnel) Regulations 2002, to terminate a member’s service.
75 Making a complaint
(1) Subject to subregulation (2), a member may make a complaint under this Part if:
(a) the member considers that a decision, act or omission in relation to the member’s service is adverse or detrimental to him or her; and
(b) the adverse or detrimental effect of that decision, act or omission is capable of being redressed by:
(i) a member of the Defence Force; or
(ii) an employee of the Department; or
(iii) an employee of the Defence Material Organisation.
(2) However, a member may not make a complaint in relation to:
(a) a decision, act or omission under this Part; or
(b) an action that initiates an administrative process; or
(c) the issue of a termination notice under Part VIIIA of the Act or under Part 2 of Chapter 9 of the Defence (Personnel) Regulations 2002; or
(d) a decision to give, or not to give, a particular assessment, grade or rating as the result of a performance assessment process; or
(e) a decision, judgment or order made by a civil or criminal court, a service tribunal or the Defence Force Discipline Appeal Tribunal; or
(f) a liability arising under section 15 or 42 of the Financial Management and Accountability Act 1997.
(3) If the complaint relates to a termination decision, the member must make the complaint within 14 days after:
(a) the day on which the member was notified of the decision; or
(b) the day on which the member could reasonably be expected to have known about the decision.
(4) If subregulation (3) does not apply, the member must make the complaint within 6 months after:
(a) the day on which the member was notified of the decision, act or omission; or
(b) the day on which the member could reasonably be expected to have known about the decision, act or omission.
(5) A complaint must be:
(a) made in writing; and
(b) submitted to the member’s commanding officer.
76 Exceptional circumstances—complaints
(1) Despite regulation 75, a commanding officer may accept a complaint that is made more than 6 months after:
(a) the day on which the member was notified of a decision, act or omission; or
(b) the day on which the member could reasonably be expected to have known about the decision, act or omission;
if:
(c) the complaint does not relate to a termination decision; and
(d) the commanding officer is satisfied that exceptional circumstances exist.
(2) If the commanding officer is not satisfied that exceptional circumstances exist for subregulation (1), the commanding officer must refer the complaint to the member’s service chief.
(3) If the complaint is referred to a service chief under subregulation (2), the service chief must decide whether or not exceptional circumstances exist for subregulation (1).
77 Inquiry into complaint
(1) Subject to subregulation (2), if a complaint is:
(a) made to a commanding officer under regulation 75; or
(b) referred to a service chief under regulation 82; or
(c) referred to the Chief of the Defence Force under regulation 87;
the commanding officer, the service chief or the Chief of the Defence Force must inquire into the complaint as soon as is reasonably practicable.
(2) If a complaint:
(a) relates to a decision, act or omission by the commanding officer to whom the complaint is made; and
(b) contains only information that was inquired into by the commanding officer as part of the decision, act or omission to which the complaint relates;
the commanding officer must not inquire into the complaint.
(3) If subregulation (2) applies:
(a) the commanding officer must refer the complaint to the member’s service chief; and
(b) the member’s service chief must inquire into the complaint, as if the complaint were referred under subregulation 82(1).
78 Delayed inquiries
(1) If:
(a) a complaint has been made to a commanding officer under regulation 75; and
(b) 90 days have elapsed since the complaint was made;
the service chief must decide whether or not the complaint should be referred to himself or herself.
(2) If a service chief decides, under subregulation (1), that a complaint should be referred to himself or herself:
(a) the complaint is taken to be referred to the service chief as if it had been referred under regulation 82; and
(b) the service chief must inquire into the complaint under regulation 77; and
(c) the commanding officer to whom the complaint was made under regulation 75 is discharged from his or her obligations under this Part to inquire into and make a decision on the complaint.
79 Suspension of consideration of complaint
If:
(a) a complaint has been made to a commanding officer under regulation 75; and
(b) the subject matter of the complaint is also subject to an external process, disciplinary action (including a review or appeal under the Defence Force Discipline Act 1982 or the Defence Force Discipline Appeals Act 1955), or an alternative dispute resolution process; and
(c) the commanding officer is satisfied that it would be appropriate for the external process, disciplinary action or alternative dispute resolution process to be completed before making a decision on the complaint;
the commanding officer may suspend the complaint resolution process until the external process, disciplinary action or alternative dispute resolution process has been completed.
80 Resumption of consideration of complaint
If:
(a) a complaint resolution process has been suspended under regulation 79; and
(b) the commanding officer becomes aware that the external process, disciplinary action or alternative dispute resolution process has been completed;
the commanding officer must, as soon as is reasonably practicable, resume consideration of the complaint.
81 Decision on complaints
(1) A commanding officer who has received a complaint must, as soon as is reasonably practicable after receiving the complaint:
(a) inquire into the complaint; and
(b) make a decision on the complaint; and
(c) take any other action that, in his or her opinion, is necessary.
(2) The commanding officer must, as soon as is reasonably practicable after the day on which the commanding officer makes a decision under subregulation (1), notify the member who made the complaint of the decision.
82 Referral of complaint if member not satisfied with decision
(1) Subject to subregulation (2) and (3), if a member is not satisfied with the decision of a commanding officer made in accordance with regulation 81 on a complaint, the member may refer the complaint:
(a) in the case of a member of the Navy—to the Chief of Navy; or
(b) in the case of a member of the Army—to the Chief of Army; or
(c) in the case of a member of the Air Force—to the Chief of Air Force.
(2) If a complaint relates to a termination decision, the member must refer the complaint to the relevant service chief within 14 days after the day on which the member is notified of the commanding officer’s decision under subregulation 81(2).
(3) If a complaint relates to a decision other than a termination decision, the member must refer the complaint to the relevant service chief within 28 days after the day on which the member is notified of the commanding officer’s decision under subregulation 81(2).
83 Exceptional circumstances—referred complaints
Despite subregulation 82(3), a service chief may accept a complaint that is referred more than 28 days from the day on which the member was notified of the commanding officer’s decision under subregulation 81(2), if:
(a) the complaint does not relate to a termination decision; and
(b) the service chief is satisfied that exceptional circumstances exist.
84 Suspension of consideration of referred complaints
If:
(a) a complaint has been referred to a service chief under subregulation 82(1); and
(b) the subject matter of the complaint is also subject to an external process, disciplinary action (including a review or appeal under the Defence Force Discipline Act 1982 or the Defence Force Discipline Appeals Act 1955), or an alternative dispute resolution process; and
(c) the service chief is satisfied that it would be appropriate for the external process, disciplinary action or alternative dispute resolution process to be completed before making a decision on the complaint;
the service chief may suspend the complaint resolution process until the external process, disciplinary action or alternative dispute resolution process has been completed.
85 Resumption of consideration of referred complaints
If:
(a) a complaint resolution process has been suspended under subregulation 84; and
(b) the service chief becomes aware that the external process, disciplinary action or alternative dispute resolution process has been completed;
the service chief must, as soon as is reasonably practicable, resume consideration of the complaint.
86 Decision on referred complaints
(1) A service chief to whom a complaint is referred, under subregulation 82(1), must, as soon as is reasonably practicable after the complaint is referred to him or her:
(a) inquire into the referred complaint; and
(b) make a decision on the referred complaint; and
(c) take any other action that, in his or her opinion, is necessary.
(2) The service chief must, as soon as is reasonably practicable after the day on which he or she makes a decision under subregulation (1), notify the member who made the complaint of the decision.
87 Further referral of officer’s complaints
(1) Subject to subregulations (2) and (3), if an officer is not satisfied with a decision under subregulation 86(1), the officer may refer the matter to the Chief of the Defence Force.
(2) If a complaint relates to a termination decision, the officer must refer the complaint to the Chief of the Defence Force within 14 days after the day on which the officer is notified of the decision of the relevant service chief under subregulation
86(2).
(3) If a complaint relates to a decision other than a termination decision, the officer must refer the complaint to the Chief of the Defence Force within 28 days after the day on which the officer is notified of the decision of the relevant service chief under subregulation 86(2).
(4) In this regulation, officer includes:
(a) chief petty officer; and
(b) flight sergeant; and
(c) warrant officer.
88 Exceptional circumstances—complaints referred to Chief of the Defence Force
Despite subregulation 87(3), the Chief of the Defence Force may accept a complaint that is referred more than 28 days from the day on which the officer was notified of the service chief’s decision under subregulation 86(2) if:
(a) the complaint does not relate to a termination decision; and
(b) the Chief of the Defence Force is satisfied that exceptional circumstances exist.
89 Suspension of consideration of complaints referred to Chief of the Defence Force
If:
(a) a complaint has been referred to the Chief of the Defence Force under subregulation 87(1); and
(b) the subject matter of the complaint is also subject to
an external process, disciplinary action (including a review or appeal under the Defence Force Discipline Act 1982
or the Defence Force Discipline Appeals Act 1955), or an alternative dispute resolution process; and
(c) the Chief of the Defence Force is satisfied that it would be appropriate for the external process, disciplinary action or alternative dispute resolution process to be completed before making a decision on the complaint;
the Chief of the Defence Force may suspend the complaint resolution process until the external process, disciplinary action or alternative dispute resolution process has been completed.
90 Resumption of consideration of complaints referred to Chief of the Defence Force
If:
(a) a complaint resolution process has been suspended under regulation 89; and
(b) the Chief of the Defence Force becomes aware that the external process, disciplinary action or dispute resolution process has been completed;
the Chief of the Defence Force must, as soon as is reasonably practicable, resume consideration of the complaint.
91 Decision on complaints referred to Chief of the Defence Force
(1) The Chief of the Defence Force must, as soon as is reasonably practicable after the complaint is referred to him or her:
(a) inquire into the referred complaint; and
(b) make a decision on the referred complaint; and
(c) take any other action that, in his or her opinion, is necessary.
(2) The Chief of the Defence Force must, as soon as is reasonably practicable after making a decision under subregulation (1), notify the officer who made the complaint of the decision.
92 Offences in relation to complaints
(1) A member is guilty of an offence if he or she prevents or dissuades another member from:
(a) making a complaint; or
(b) requesting the referral of a complaint; or
(c) inquiring into a complaint; or
(d) referring a complaint; or
(e) redressing a grievance; or
(f) taking any other action in relation to this Part.
Penalty: 5 penalty units or imprisonment for 3 months.
(2) A member is guilty of an offence if he or she causes another member to be victimised, penalised or prejudiced in any way for:
(a) making a complaint; or
(b) requesting the referral of a complaint.
Penalty: 5 penalty units or imprisonment for 3 months.
93 Delegations
(1) The Chief of the Defence Force may, in writing, delegate all or any of his or her powers under this Part, other than this power of delegation, to any of the following officers:
(a) an officer of the Navy not below the rank of Commodore;
(b) an officer of the Army not below the rank of Brigadier;
(c) an officer of the Air Force not below the rank of Air Commodore.
(2) The Chief of Navy may, in writing, delegate all or any of his or her powers under this Part, other than this power of delegation, to an officer of the Navy who holds a rank not below the rank of Commodore.
(3) The Chief of Army may, in writing, delegate all or any of his or her powers under this Part, other than this power of delegation, to an officer of the Army who holds a rank not below the rank of Brigadier.
(4) The Chief of Air Force may, in writing, delegate all or any of his or her powers under this Part, other than this power of delegation, to an officer of the Air Force who holds a rank not below the rank of Air Commodore.
Note: In accordance with the Acts Interpretation Act 1901, if a power is delegated:
(a) the exercise of the power by the delegate is taken to be the exercise of the power by the person who delegated the power; and
(b) the delegation does not prevent the exercise of power by the person who delegated the power.
Part 15A—Defence Honours and Awards Appeals Tribunal
93A Definitions
In this Part:
defence award—see regulation 93C.
defence honour—see regulation 93B.
Note: Several other words and expressions used in these Regulations have the meaning given by section 110T of the Act, for example:
Chair
foreign award
procedural rules
reviewable decision
review of a reviewable decision
Tribunal member.
93B Meaning of defence honour
For section 110T of the Act, an honour mentioned in Part 1 of Schedule 3 is a defence honour.
93C Meaning of defence award
For section 110T of the Act, an award mentioned in Part 2 of Schedule 3 is a defence award.
93D Disclosure of information
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information:
(i) is obtained by the person as a member of the Tribunal, or as a person or organisation assisting the Tribunal; and
(ii) is part of or relates to an application for review of a reviewable decision.
Penalty: 20 penalty units.
(2) Subregulation (1) does not apply if:
(a) the disclosure of the information is permitted or required by the Act or the procedural rules; or
(b) the disclosure of the information is the subject of an order under section 110XD of the Act; or
(c) the disclosure of the information is only by or to the person to whom the information relates; or
(d) the disclosure of the information is authorised by the person to whom the information relates.
93E Remuneration
(1) For subsection 110YE(1) of the Act, the remuneration payable to the Chair is $945 a day.
(2) For subsection 110YE(1) of the Act, the remuneration payable to another Tribunal member is $685 a day.
93F Travel allowance
For subsection 110YE(2) of the Act, the rate of travel allowance payable to a Tribunal member is in accordance with the Tier 2 rate under the Remuneration Tribunal Determination 2004/03.
Part XVI—Miscellaneous
94 Administration fee: deduction from salary
For the purposes of subsection 120B(4) of the Act, the prescribed rate of administration fee payable in respect of an amount deducted pursuant to subsection 120B(3) of the Act is 2.5% of that amount.
95 Body corporate declared for the purposes of subsection 123(2) of the Act
Australian Defence Industries Pty Ltd is a body corporate in relation to which subsection 123(2) of the Act applies.