Commonwealth Consolidated Acts Commonwealth Consolidated Acts
1 Definitions
In this Schedule:
AMC means the Australian Military Court purportedly established by Division 3 of Part VII of the old Defence Force Discipline Act.
amended Defence Force Discipline Act means the Defence Force Discipline Act 1982 as amended by this Act.
commencement day means the day on which this Act commences.
High Court decision date means 26 August 2009.
member has the same meaning as in the Defence Act 1903 .
old Defence Force Discipline Act means the Defence Force Discipline Act 1982 as purportedly in force immediately before the High Court decision date.
Permanent Forces has the same meaning as in the Defence Act 1903 .
Registrar has the same meaning as in the old Defence Force Discipline Act.
Remuneration Tribunal means the Tribunal established by subsection 4(1) of the Remuneration Tribunal Act 1973 .
2 Current Chief Military Judge automatically becomes the Chief Judge Advocate
(1) This item applies to the person who purportedly held office as Chief Military Judge under section 188AC of the old Defence Force Discipline Act immediately before the High Court decision date.
Deemed appointment as Chief Judge Advocate
(2) The person is taken to have been appointed on the commencement day, by force of this item, as the Chief Judge Advocate, as if the person had been duly appointed by the Judge Advocate General under section 188A of the amended Defence Force Discipline Act.
Term and remuneration
(3) The person:
(a) is taken to have been appointed under section 188A of the amended Defence Force Discipline Act, by instrument in writing:
(i) for the period of 8 years beginning on the commencement day; or
(ii) if a day before the end of that 8 year period is declared to be the termination day under item 8 of this Schedule--for the period beginning on the commencement day and ending at the beginning of the termination day; and
(b) is taken to have been appointed on the same terms and conditions as to remuneration, allowances and recreation leave and other leave entitlements as purportedly applied to the person immediately before the High Court decision date, subject to regulations made under subitem ( 4).
(4) Despite section 188E of the amended Defence Force Discipline Act, the person:
(a) is entitled to such remuneration and allowances as are prescribed, which must not be less in value than the remuneration and allowances that purportedly applied to the person immediately before the High Court decision date; and
(b) is to have such recreation leave and other leave entitlements as are prescribed, which must not be less in value than the recreation leave and other leave entitlements that purportedly applied to the person immediately before the High Court decision date.
Person does not hold a public office
(5) The person does not hold a public office within the meaning of the Remuneration Tribunal Act 1973 .
Resignation
(6) The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.
No employment outside the ADF
(7) The person must not engage in employment outside the duties of his or her office as Chief Judge Advocate, other than as a member of the Australian Defence Force.
Application of certain provisions
(7A) Subsections 188A(2) and (3) of the amended Defence Force Discipline Act do not apply to the appointment, by force of this item, of the person as the Chief Judge Advocate.
(8) To avoid doubt, sections 188B, 188C and 188D of the amended Defence Force Discipline Act apply to the person.
Certain provisions do not apply
(9) To avoid doubt, the person is not entitled to remuneration, salary, allowances, leave, benefits or any other entitlements (however described) under a determination made under section 58B or 58H of the Defence Act 1903 .
3 Benefits on ceasing to hold office
(1) This item applies in relation to the person who was taken to have been appointed as the Chief Judge Advocate by force of item 2 of this Schedule, if:
(a) a day before the end of the 8 year period referred to in subparagraph ( 3)(a)(i) of that item is declared to be the termination day under item 8 of this Schedule; and
(b) the person's appointment by force of item 2 of this Schedule continued to be in force immediately before the termination day.
(2) Subject to subitems ( 3), (4) and (6), the person is taken to be entitled to be paid the amount that he or she would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal if:
(a) the office of Chief Military Judge had existed on the High Court decision date; and
(b) the person's appointment to that office had been prematurely terminated on the High Court decision date, other than:
(i) for reasons of misbehaviour or unsatisfactory performance; or
(ii) on account of mental or physical incapacity, if the person was entitled to receive invalidity retirement benefits under Commonwealth superannuation legislation; and
(c) the Commonwealth had not offered the person suitable alternative employment after that premature termination.
(3) The person is not entitled to be paid an amount under subitem ( 2) if, before the termination day , the Commonwealth offers the person employment that would have been suitable alternative employment in relation to the office that the person purportedly held as Chief Military Judge.
(4) The person is not entitled to be paid an amount under subitem ( 2) if, before the termination day , the person ceases to be a member of the Permanent Forces.
(5) If a person is paid an amount under subitem ( 2), the person is taken to have completed a period of service for the purposes of regulation 64 of the Defence (Personnel) Regulations 2002 at the time the amount is paid.
(6) For the purposes of working out the amount that the person would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal, the months of service that would, apart from this subitem, remain is reduced by the number of months during which the person held office as Chief Judge Advocate on or after the commencement day.
(7) The amount payable under subitem ( 2) is to be reduced by the amount, if any, that the person has been, or is entitled to be, paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal in respect of the premature termination of the person's appointment to the office of Chief Military Judge, and may be reduced to an amount of zero.
4 Current Military Judges automatically become members of the judge advocates' panel
Application
(1) This item applies to a person who purportedly held office as a Military Judge under section 188AP of the old Defence Force Discipline Act immediately before the High Court decision date.
Deemed appointment as judge advocate
(2) The person is taken to have been appointed on the commencement day, by force of this item, as a member of the judge advocates' panel, as if the person had been duly appointed by the Chief of the Defence Force under subsection 196(2) of the amended Defence Force Discipline Act.
Term and remuneration
(3) The person:
(a) is taken to have been appointed under section 196 of the amended Defence Force Discipline Act, by instrument in writing, for:
(i) the period of 8 years beginning on the commencement day; or
(ii) if a day before the end of that 8 year period is declared to be the termination day under item 8 of this Schedule--for the period beginning on the commencement day and ending at the beginning of the termination day; and
(b) is taken to have been appointed on the same terms and conditions as to remuneration, allowances and recreation leave and other leave entitlements as purportedly applied to the person immediately before the High Court decision date, subject to regulations under subitem ( 4).
(4) The person:
(a) is entitled to such remuneration and allowances as are prescribed, which must not be less in value than the remuneration and allowances that purportedly applied to the person immediately before the High Court decision date; and
(b) is to have such recreation leave and other leave entitlements as are prescribed, which must not be less in value than the recreation leave entitlements that purportedly applied to the person immediately before the High Court decision date.
Person does not hold a public office
(5) The person does not hold a public office within the meaning of the Remuneration Tribunal Act 1973 .
Resignation
(6) The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.
No employment outside the ADF
(7) The person must not engage in employment outside the duties of his or her office as a member of the judge advocates' panel, other than as a member of the Australian Defence Force.
Oath
(8) The person is taken to have made and subscribed an oath in accordance with Schedule 5 of the amended Defence Force Discipline Act.
Application of certain provisions
(8A) Subsection 196(2A) of the amended Defence Force Discipline Act does not apply to the appointment, by force of this item, of the person as a member of the judge advocates' panel.
(9) To avoid doubt, subsection 196(2B) of the amended Defence Force Discipline Act applies to the person.
Certain provisions do not apply
(10) To avoid doubt, the person is not entitled to remuneration, salary, allowances, leave, benefits or any other entitlement (however described) under a determination under section 58B or 58H of the Defence Act 1903 .
5 Benefits on member of judge advocates' panel ceasing to hold office
(1) This item applies in relation to a person who was taken to have been appointed as a member of the judge advocates' panel by force of item 4 of this Schedule, if:
(a) a day before the end of the 8 year period referred to in subparagraph ( 3)(a)(i) of that item is declared to be the termination day under item 8 of this Schedule; and
(b) the person's appointment by force of item 4 of this Schedule continued to be in force immediately before the termination day.
(2) Subject to subitems ( 3) and (4), the person is taken to be entitled to be paid the amount that the person would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal if:
(a) the office of Military Judge had existed on the High Court decision date; and
(b) the person's appointment to that office had been prematurely terminated on the High Court decision date, other than:
(i) for reasons of misbehaviour or unsatisfactory performance; or
(ii) on account of mental or physical incapacity, if the person was entitled to receive invalidity retirement benefits under Commonwealth superannuation legislation; and
(c) the Commonwealth had not offered the person suitable alternative employment after that premature termination.
(3) The person is not entitled to be paid an amount under subitem ( 2) if, before the termination day , the Commonwealth offers the person employment that would have been suitable alternative employment in relation to the office that the person purportedly held as a Military Judge.
(4) The person is not entitled to be paid an amount under subitem ( 2) if, before the termination day , the person ceases to be a member of the Permanent Forces.
(5) If a person is paid an amount under subitem ( 2), the person is taken to have completed a period of service for the purposes of regulation 64 of the Defence (Personnel) Regulations 2002 at the time the amount is paid.
(6) For the purposes of working out the amount that the person would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal, the number of months of service that would, apart from this subitem, remain is to be reduced by the number of months during which the person held office as a judge advocate on or after the commencement day.
(7) The amount under subitem ( 2) is to be reduced by the amount, if any, that the person has been, or is entitled to be, paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal in respect of the premature termination of the person's appointment as a Military Judge, and may be reduced to an amount of zero.
6 Current Registrar of the AMC automatically becomes the Registrar of Military Justice
(1) This item applies to the person who purportedly held office as Registrar of the AMC under section 188FB of the old Defence Force Discipline Act immediately before the High Court decision date.
(2) The person is taken to have been appointed on the commencement day, by force of this item, as the Registrar of Military Justice, as if the person had been duly appointed by the Minister under section 188FB of the amended Defence Force Discipline Act.
(3) The person:
(a) is taken to have been appointed under section 188FB of the amended Defence Force Discipline Act, by instrument in writing, for:
(i) the period of 2 years beginning on the commencement day; or
(ii) if the office of Registrar ceases to exist before the end of that 2 year period--the period beginning on the commencement day and ending when that office ceases to exist; and
(b) is taken to have been appointed on the same terms and conditions as purportedly applied to the person immediately before the High Court decision date.
(4) The person is taken to have made and subscribed an oath in accordance with Schedule 4 of the amended Defence Force Discipline Act.
(5) To avoid doubt, the person is not entitled to remuneration, salary, allowances, leave, benefits or any other entitlements (however described) under a determination made under section 58B or 58H of the Defence Act 1903 .
7 Waiver relating to amounts paid to purported office holders
(1) This item applies to amounts paid by the Commonwealth purportedly by way of remuneration or allowances or other amounts to a person who purportedly held office as the Chief Military Judge, Military Judge or the Registrar of the Australian Military Court immediately before the High Court decision date, during the period:
(a) beginning on 1 October 2007; and
(b) ending on the commencement of this item.
(2) If those offices did not exist during that period, the Commonwealth's right to recover an amount that would, apart from this item, be recoverable only on the basis of the non - existence of those offices is, by force of this item, waived.
8 Minister may declare a termination day
(1) The Minister may declare, in writing, a specified day to be the termination day for the purposes of this Schedule. The day must be after the day the declaration is made and before the end of the 8 year period beginning on the commencement day.
(2) A declaration made under subitem ( 1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.