Defence (Amendment) Act 2024

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Defence (Amendment) Act 2024.

(2) Sections 5, 12, 13, 16, 19, 21, 22 and 23 shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Definitions

2. In this Act—

“Minister” means the Minister for Defence;

“Principal Act” means the Defence Act 1954.

3. Repeal

3. Section 38 of the Principal Act is repealed.

4. Expenses

4. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Amendment of Principal Act

5. Amendment of section 2 of Principal Act

5. Section 2 of the Principal Act is amended by the insertion of the following definitions:

“ ‘court-martial prosecutor’ has the meaning assigned to it by section 184F;

‘External Oversight Body’ has the meaning assigned to it by section 321;”.

6. Amendment of section 48 of Principal Act

6. Section 48 of the Principal Act is amended by the substitution of the following subsection for subsection (6):

“(6) An officer shall relinquish his or her commission if he or she—

(a) is elected as a member of either House of the Oireachtas or the European Parliament,

(b) is nominated as a member of Seanad Éireann, or

(c) is regarded under Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to the European Parliament.”.

7. Amendment of section 53A of Principal Act

7. Section 53A of the Principal Act is amended, in subsection (3), by the insertion of “or terms” after “such further term”.

8. Amendment of section 64 of Principal Act

8. The Principal Act is amended by the substitution of the following section for section 64:

“64. (1) Subject to subsection (2) and any regulations that may be made under subsection (3), a member of the Permanent Defence Force enlisted under section 53 (in this section referred to as an ‘enlisted member’) may, after the expiration of 9 years, reckoned from the date of the enlisted member’s attestation, apply for and be re-engaged for a further period of service in the Permanent Defence Force which shall continue until the earlier of the following occurs:

(a) that enlisted member’s service makes up a total continuous period not exceeding 21 years’ service reckoned as aforesaid;

(b) that enlisted member attains the upper age limit permitted for continuance in service as prescribed in regulations made by the Minister under this Act.

(2) The re-engagement of an enlisted member under this section shall be subject to—

(a) the recommendation of the enlisted member’s commanding officer that the enlisted member concerned is suitable for re-engagement, and

(b) the approval by the prescribed military authority of the enlisted member concerned for re-engagement.

(3) The Minister may, in relation to an enlisted member who applies for re-engagement, make regulations prescribing the conditions that shall apply to the re-engagement of an enlisted member under this section including—

(a) the standard of physical fitness to be attained,

(b) the minimum medical classification code to be held,

(c) the military courses of instruction to be completed,

(d) the period of service outside the State to be completed within a prescribed period, and

(e) the standard of conduct to be adhered to.

(4) Regulations under this section may—

(a) make different provision in relation to different classes of enlisted members, and

(b) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.”.

9. Amendment of section 67 of Principal Act

9. The Principal Act is amended by the substitution of the following section for section 67:

“67. (1) Subject to subsection (2) and any regulations that may be made under subsection (3), a reservist may, after the expiration of 9 years, reckoned from the date of the reservist’s attestation, apply for and be re-engaged for a further period of service in the Reserve Defence Force which shall continue until the earlier of the following occurs:

(a) the reservist’s service will make up a total continuous period not exceeding 21 years’ service reckoned as aforesaid;

(b) the reservist attains the upper age limit permitted for continuance in service as prescribed in regulations made by the Minister under this Act.

(2) The re-engagement of a reservist under this section shall be subject to—

(a) the recommendation of the reservist’s commanding officer that the reservist concerned is suitable for re-engagement, and

(b) the approval by the prescribed military authority of the reservist concerned for re-engagement.

(3) The Minister may, in relation to a reservist who applies for re engagement, make regulations prescribing the conditions that shall apply to the re-engagement of a reservist under this section including—

(a) the standard of physical fitness to be attained,

(b) the minimum medical classification code to be held, and

(c) provision for such training as the Minister considers appropriate to be completed by a reservist who applies for re-engagement.

(4) Regulations under this section may—

(a) make different provision in relation to different classes of reservists, and

(b) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.”.

10. Amendment of section 97 of Principal Act

10. Section 97 of the Principal Act is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) The Minister shall, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, determine the rates and scales of pay, allowances and gratuities of members of the Defence Forces which shall be published on a website maintained by or on behalf of the Minister.”,

(b) by the insertion of the following subsection after subsection (1):

“(1A) The Minister may make regulations in relation to the following matters:

(a) the conditions applicable to the issue of pay, allowances and gratuities of members of the Defence Forces;

(b) the grants which may be made to members and units of the Defence Forces and the conditions applicable to the issue of such grants.”,

and

(c) in subsection (4), by the substitution of “as determined by the Minister under subsection (1)” for “under regulations made under subsection (1) of this section”.

11. Amendment of section 103 of Principal Act

11. Section 103 of the Principal Act is amended by the insertion of the following subsection after subsection (1):

“(1A) Without prejudice to the Defence (Amendment) Act 1990 and any regulations made thereunder, a member of the Permanent Defence Force shall not—

(a) while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force—

(i) make, without prior authorisation from the member’s commanding officer, a public statement or comment in relation to a political matter or matter of Government policy, or

(ii) attend a protest, march or other gathering in relation to a political matter or matter of Government policy,

(b) canvass on behalf of, or collect contributions for, any political organisation or society, or

(c) address a meeting of a political organisation or society.”.

12. Regulations relating to testing for controlled drugs and psychoactive substances

12. The Principal Act is amended by the insertion of the following section after section 117:

“117A. (1) A member of the Defence Forces shall be subject to drug testing in accordance with regulations made under this section.

(2) The Minister may in relation to members of the Defence Forces make regulations to provide for the establishment, maintenance and operation of a regime of testing for controlled drugs and psychoactive substances which may provide for—

(a) subject to paragraph (b), a prohibition on the presence of controlled drugs or psychoactive substances above a specified concentration in a sample,

(b) the procedure to be followed where a member of the Defence Forces is exposed to a controlled drug or psychoactive substance in the course of and as a result of his or her duties,

(c) the taking of samples,

(d) a prohibition on tampering with a sample,

(e) the persons who may be permitted to take a sample,

(f) the information to be provided to a member of the Defence Forces required to provide a sample,

(g) matters with regard to the testing and analysis of samples,

(h) the reasons for testing, which may include—

(i) random testing, or

(ii) targeted drug testing,

(i) the concentration of a controlled drug or psychoactive substance required to be present to yield a positive result in a sample,

(j) how samples are to be stored,

(k) the period during which samples may be stored,

(l) the reviewing of test results,

(m) the consequences that may apply to a member of the Defence Forces who refuses or fails to provide a sample,

(n) the consequences that may apply to a member of the Defence Forces where a positive result is yielded in his or her sample, and

(o) such ancillary, incidental, consequential or supplemental provisions as he or she considers necessary or expedient for the purposes of establishing, maintaining and operating the regime of testing for controlled drugs and psychoactive substances.

(3) Regulations under this section may prescribe differently for different circumstances or cases, classes or types.

(4) In this section—

‘controlled drug’ has the same meaning as it has in section 2 of the Misuse of Drugs Act 1977;

‘psychoactive substance’ has the same meaning as it has in the Criminal Justice (Psychoactive Substances) Act 2010;

‘sample’ means a sample of any of the following taken, or to be taken, from a person:

(a) urine;

(b) hair, other than pubic hair;

(c) oral fluid, including saliva;

(d) blood.”.

13. Amendment of section 161 of Principal Act

13. Section 161 of the Principal Act is amended—

(a) in subsection (2), in paragraph (ea), by the substitution of “court-martial prosecutor” for “prosecuting officer”, and

(b) in subsection (3), by the substitution of “court-martial prosecutor” for “prosecuting officer”.

14. Amendment of section 177 of Principal Act

14. Section 177 of the Principal Act is amended—

(a) in subsection (1), by the insertion of “subject to subsection (1A),” after “the person’s commanding officer or,”, and

(b) by the insertion of the following subsection after subsection (1):

“(1A) The Chief of Staff may, where the circumstances so require—

(a) appoint an officer to investigate a charge for the purpose of subsection (1), or

(b) direct the Deputy Chief of Staff (Operations) to appoint an officer for the said purpose.”.

15. Amendment of section 177A of Principal Act

15. Section 177A of the Principal Act is amended by the substitution of the following paragraph for paragraph (a):

“(a) to be investigated under section 177, or”.

16. Appointment of court-martial prosecutor

16. (1) The Principal Act is amended by the substitution of the following section for section 184F:

“184F. (1) The Director may appoint in writing any of the following persons to be a prosecutor in a court-martial (in this Act referred to as a ‘court martial prosecutor’):

(a) a member of the Defence Forces who at the date of appointment under this subsection is a practising solicitor or practising barrister;

(b) a practising solicitor nominated by the Attorney General;

(c) a practising barrister nominated by the Attorney General.

(2) A court-martial prosecutor shall hold and vacate office in accordance with such terms and conditions as may be determined by the Director.

(3) A court-martial prosecutor may, unless the Director otherwise directs, exercise any function of the Director.

(4) In this section—

‘practising barrister’ has the same meaning as it has in the Legal Services Regulation Act 2015;

‘practising solicitor’ has the same meaning as it has in the Legal Services Regulation Act 2015.”.

(2) A person who, immediately before the coming into operation of subsection (1), stood appointed to be a prosecuting officer under section 184F of the Principal Act shall, on and after such coming into operation, be deemed—

(a) subject to paragraph (b), to have been appointed as a court-martial prosecutor (within the meaning of that section as amended by subsection (1)) under that section as amended by subsection (1), and

(b) to have been appointed on such terms and conditions as are not less favourable than the terms and conditions of service to which the person was subject immediately before such coming into operation.

17. Amendment of section 196 of Principal Act

17. Section 196 of the Principal Act is amended, in subsection (1), by the substitution of “The Director” for “The prosecutor”.

18. Amendment of section 248 of Principal Act

18. Section 248 of the Principal Act is amended, in paragraph (d), by the substitution of the following subparagraph for subparagraph (iiA):

“(iiA) having, or not having, at any specified time or times, served outside the State as a member of the Defence Forces with an International United Nations Force or for any purpose referred to in section 3 of the Defence (Amendment) Act 2006, or”.

19. Prohibition on use of term “Óglaigh na hÉireann”

19. The Principal Act is amended by the insertion of the following section after section 258:

“258A. (1) A person who, in, or as part of, the name, title, description or styling of a body (whether incorporated or unincorporated), uses the term ‘Óglaigh na hÉireann’ commits an offence.

(2) Subsection (1) shall not apply where use of the term ‘Óglaigh na hÉireann’ is authorised by law.

(3) A person who is guilty of an offence under this section shall be liable on summary conviction to a class D fine.

(4) Where an offence under this section is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of, any person who, when the offence was committed, was a director, a member of the committee of management or other controlling authority of the body concerned, or the manager, secretary or other officer of the body or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and be liable to be proceeded against and punished as if guilty of the first-mentioned offence.”.

20. Amendment of section 292 of Principal Act

20. Section 292 of the Principal Act is amended—

(a) by the designation of that section as subsection (1),

(b) in subsection (1) (as designated by paragraph (a)), by the substitution of the following paragraph for paragraph (i):

“(i) the conditions applicable to the issue of pay and allowances of members thereof, and the forfeitures and stoppages of, and the deductions from, such pay and allowances which may be made;”,

and

(c) by the insertion of the following subsection after subsection (1):

“(2) The Minister shall, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, determine the rates and scales of pay and allowances of members of the Army Nursing Service which shall be published on a website maintained by or on behalf of the Minister.”.

21. External Oversight Body - insertion of Part XIII in Principal Act

21. The Principal Act is amended by the insertion of the following Part after Part XII:

“PART XIII

COMHLACHT FORMHAOIRSITHE SEACHTRACH ÓGLAIGH NA HÉIREANN

Interpretation (Part XIII)

319. In this Part—

‘committee’ means a committee of the External Oversight Body established under section 328;

‘establishment day’ means the day appointed under section 320;

‘financial year’, in relation to the External Oversight Body, means a period of 12 months ending on 31 December in any year and, in the case of the first financial year of the External Oversight Body, means the period commencing on the establishment day and ending on 31 December in the year in which the establishment day falls.

Establishment day

320. The Minister shall by order appoint a day to be the establishment day for the purposes of this Part.

Comhlacht Formhaoirsithe Seachtrach Óglaigh na hÉireann

321. (1) There shall stand established on the establishment day a body to be known as Comhlacht Formhaoirsithe Seachtrach Óglaigh na hÉireann (in this Act referred to as the ‘External Oversight Body’) to perform the functions assigned to it by this Act or any other enactment.

(2) The External Oversight Body shall have all such powers as are necessary or expedient for the performance of its functions.

(3) The External Oversight Body shall be independent in the performance of its functions.

(4) The Thirteenth Schedule shall apply to the External Oversight Body.

Functions of External Oversight Body

322. (1) The External Oversight Body shall oversee and monitor the management of human resources of the Defence Forces by the Defence Forces and for those purposes—

(a) shall provide such advice to the Minister on matters arising as the External Oversight Body considers appropriate,

(b) shall, when requested by the Minister, or may, on its own initiative, conduct a review and make such recommendations to the Minister, for consideration, as it considers appropriate,