EXPLANATORY STATEMENT
Defence Determination 2016/14
THIS STATEMENT REPLACES THE EXPLANATORY STATEMENT PRESENTED TO THE HOUSE OF REPRESENTATIVES, THE SENATE AND THE SENATE STANDING COMMITTEE OF REGULATIONS AND ORDINANCES ON 19 APRIL 2016
This Determination amends Defence Determination 2005/15, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Defence Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AIA Act). Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003. These instruments are also subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.
Chapter 16 of the Principal Determination sets out provisions dealing with overseas hardship location conditions of service for members of the Australian Defence Force (ADF).
This Determination makes changes to hardship conditions of service following an annual review of the level of grading of each of the hardship locations. It changes the hardship post grade, and thus the level of hardship allowance, at three locations.
Clause 1 of this Determination sets out the manner in which this Determination may be cited.
Clause 2 of this Determination provides that the Determination commences on 5 May 2016.
Clause 3 specifies that the amendment is made to the Principal Determination, as amended.
Clauses 4 substitutes item 16A, of Annex 16.A of the Principal Determination. A hardship grade reflects factors that indicate if a location is harder to live in than Australia. The hardship grade for Kuwait is changing from Grade C to Grade D. The practical effect of this change is to increase the rate of hardship allowance paid to a member posted to Kuwait.
Clause 5 substitutes table item 5 of Part 2 of Annex 16.A of the Principal Determination. The table item sets out hardship conditions for Iran. The hardship grade for Iran has decreased from F to E. The practical effect of this change is to decrease the rate of hardship allowance paid to a member posted to Iran.
Clause 6 substitutes table item 8 of Part 2 of Annex 16.A of the Principal Determination. The table item sets out hardship conditions for Nepal. The hardship grade for Nepal has been increased, from E to F. The practical effect of this change is to increase the rate of hardship allowance paid to a member posted to Nepal.
Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions are subject to merits review under the ADF redress of grievance system, including an appeal to the Defence Force Ombudsman.
Consultation
Defence's International Policy Division was consulted in the preparation of this Determination. The rulemaker was satisfied that external consultation was not required. The instrument makes minor adjustments to the level of assistance provided to members of the Australian Defence Force when they are required to work overseas on a long-term posting.
Authority: Section 58B of the
Defence Act 1903
Overview
The Defence Determination 2016/14 was enacted in 2016 to address the need for periodic reviews and adjustments of the conditions of service for members of the Australian Defence Force (ADF) posted to overseas hardship locations. This Determination was made under section 58B of the Defence Act 1903 by the Australian Government and is subject to disallowance by Parliament. The policy objective of the Determination is to ensure that the hardship allowances provided to ADF members reflect the actual living conditions at various overseas locations. The Determination makes specific changes to the hardship grade classifications for Kuwait, Iran, and Nepal, thereby adjusting the corresponding hardship allowances. This was achieved through minor amendments to Defence Determination 2005/15, Conditions of service, without requiring further external consultation as the changes were considered minor. Adverse decisions made under the amended conditions are subject to review and appeal within the ADF's grievance system.
Scope and Application
Defence Determination 2016/14 applies to members of the Australian Defence Force (ADF) who are posted to overseas locations, specifically modifying the conditions of service for hardship allowances based on the location's hardship grade. This Determination amends Defence Determination 2005/15 under the Defence Act 1903, ensuring that it aligns with the latest assessments of hardship levels at specific overseas locations. The changes include adjusting the hardship grade and, consequently, the hardship allowance rate for members stationed in Kuwait, Iran, and Nepal. The geographic reach of this Determination is effectively global, covering all ADF personnel posted to the specified locations, though it is primarily concerned with the administrative adjustments to their conditions of service. The amendment does not specify any exclusions or exemptions and is limited to the alteration of hardship allowances, without affecting other aspects of the ADF members' service conditions. This Determination, as a disallowable legislative instrument, is subject to the interpretation principles set out in the Acts Interpretation Act 1901.
Key Provisions
The Defence Determination 2016/14 amends the Defence Determination 2005/15, specifically targeting the conditions of service for members of the Australian Defence Force (ADF) posted to overseas hardship locations. Clause 4 changes the hardship grade for Kuwait from Grade C to Grade D, which results in an increase in the hardship allowance for personnel posted there. Clause 5 reduces the hardship grade for Iran from F to E, leading to a decrease in the hardship allowance for members posted in Iran. Clause 6 increases the hardship grade for Nepal from E to F, consequently increasing the hardship allowance for those posted to Nepal. These amendments reflect adjustments in the grading of hardship conditions based on an annual review.
The obligations under this Determination are primarily for Defence personnel and the ADF to adhere to the new hardship allowance rates as stipulated by the amended clauses. The determination requires the ADF to implement these changes in the conditions of service for members posted to the specified locations, ensuring that the new hardship grades are reflected in the allowances provided. The Defence Force Ombudsman is available for merits review of any adverse decisions regarding these allowances, ensuring that the ADF members' grievances are addressed appropriately.
Breaches of the provisions set out in this Determination could lead to civil or administrative penalties, although specific penalties are not outlined in the text. The maximum penalties for breaches would typically be determined by the Defence Act 1903 and any relevant administrative guidelines or regulations. It is essential for Defence personnel and the ADF to comply with the conditions specified to avoid any potential consequences stemming from non-compliance with the amended hardship conditions.