EXPLANATORY STATEMENT
Defence Determination 2016/18
This Determination is made under section 58B of the Defence Act 1903 (the Defence Act) by the Chief of the Defence Force, acting as delegate of the Minister for Defence, 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 and are subject to the interpretation principles in the Legislation Act 2003, as modified by section 58B of the Defence Act.
This Determination provides a payment to acknowledge the commitment the member's father has made in relation to the processes following the death of his son on 11 October 2012, following a vehicle accident at Holsworthy Range. Defence initially committed to an inquiry process following the member's death, however, the matter has been referred for a criminal process in New South Wales, which is ongoing. During the conduct of the criminal process, the inquiry has been suspended. Defence is not able to interfere in the conduct of the State's criminal process.
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 the day it is registered.
Clause 3 specifies that the member's father is to be provided with a payment of $50,000. The payment recognises the unique circumstances of the situation. It is not anticipated that these circumstances will occur again.
This Determination is not subject to inquiry under the ADF redress of grievance system however, a person may make a complaint about the Determination to the Defence Force Ombudsman.
Authority: Section 58B of the
Defence Act 1903
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence Determination 2016/18, Individual payment
This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
This Determination is a single payment to an individual.
This Determination has the purpose of providing a payment to acknowledge the commitment that an ADF member's father has made in relation to the processes following the death of his son in a vehicle accident at Holsworthy Range in 2012. Defence initially committed to an inquiry process following the member's death, however, the matter has been referred for a criminal process in New South Wales, which is ongoing. During the conduct of the criminal process, the inquiry has been suspended.
Human rights implications
Minimum rights guarantee in relation to criminal prosecution
Article 14 of the International Covenant on Civil and Political Rights provides certain rights for an individual who is the defendant in a criminal trial. In the current case, Defence cannot conclude its inquiry process and must suspend it while a criminal investigation and prosecution are occurring in the State where the incident took place, New South Wales. Defence is not able to interfere in the conduct of the State's criminal process. This is consistent with human rights standards, although it means that those interested in the outcome of the inquiry have had to wait longer than has been the case for other cases, for the inquiry cannot be concluded while the criminal process is ongoing.
Just and favourable conditions of work
The protection of a person's right to safety at work engages Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7 guarantees just and favourable conditions of work, including safe and healthy conditions of work. The death of an ADF member demands prompt action to determine the cause of death or injury and the action, if any, that must be taken to prevent a recurrence. The Defence inquiry process relating to the death of the member was intended to do this, however, it was necessary to suspend the inquiry so that a criminal trial could take place in relation to the incident.
Conclusion
This Determination is compatible with human rights because although the payment is prompted due to circumstances that may engage human rights, the payment to the member's father does not limit any human rights.
M D Binskin AC, Chief of the Defence Force
Overview
The Defence Determination 2016/18 was enacted under section 58B of the Defence Act 1903 by the Chief of the Defence Force, acting as delegate of the Minister for Defence. This Determination provides a payment of $50,000 to the father of a deceased member of the Australian Defence Force (ADF), acknowledging his commitment to the processes following his son's death in a vehicle accident at Holsworthy Range in 2012. The Defence Act 1903 was initially intended to conduct an inquiry into the death, but this was suspended due to the ongoing criminal process in New South Wales, preventing Defence from interfering in the state's criminal process. The policy objective of this Determination is to provide recognition and support for the unique circumstances surrounding the member's death and the father's commitment during this challenging period.
The explanatory statement highlights that the Determination is compatible with human rights, particularly under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It underscores that while the Defence inquiry process was necessary to determine the cause of the member's death and prevent future incidents, the inquiry had to be suspended during the criminal trial, thereby respecting human rights standards. The payment to the father is intended to acknowledge his dedication and does not limit any human rights, thereby maintaining the integrity of the human rights framework.
Scope and Application
The Defence Determination 2016/18 is made under section 58B of the Defence Act 1903, and it applies to the father of an Australian Defence Force (ADF) member who died in a vehicle accident at Holsworthy Range in 2012. This Determination provides a singular payment of $50,000 to the member's father in recognition of the unique circumstances surrounding his son's death and the commitment made by the father during the ensuing processes. The payment acknowledges the father's involvement in the initial inquiry process, which has been suspended due to the referral of the matter to a criminal process in New South Wales. This Determination is not subject to the ADF redress of grievance system but can be the subject of a complaint to the Defence Force Ombudsman. It is not expected that such circumstances will arise again, making this payment a one-off provision. The Determination is compliant with human rights, including the minimum rights guarantee in relation to criminal prosecution and the protection of just and favourable conditions of work, as it does not limit any human rights despite being prompted by circumstances that may engage these rights. The Determination is a disallowable legislative instrument, subject to the interpretation principles in the Legislation Act 2003, as modified by section 58B of the Defence Act.
Key Provisions
The Defence Determination 2016/18 (Clause 3) stipulates a payment of $50,000 to the father of a deceased member of the Australian Defence Force (ADF). This payment is intended to recognise the commitment made by the father in relation to the processes following the death of his son, which occurred on 11 October 2012 due to a vehicle accident at Holsworthy Range. The determination outlines that this payment is unique to the circumstances of this case and it is not anticipated that similar circumstances will arise in the future. The determination is effective from the day it is registered (Clause 2) and it is not subject to inquiry under the ADF redress of grievance system (Clause 4). However, a person may make a complaint about the determination to the Defence Force Ombudsman.
Under the Defence Determination 2016/18, the Defence is obligated to provide a payment to the member's father as recognition of his commitment. This obligation is derived from the unique circumstances surrounding the death of the ADF member, which led to the suspension of the Defence inquiry process due to the ongoing criminal process in New South Wales. The Defence is unable to interfere in the conduct of the State's criminal process and must wait for the conclusion of this process before proceeding with its own inquiry.
Failure to comply with the Defence Determination 2016/18 may result in complaints being made to the Defence Force Ombudsman. However, there are no specific offences, penalties, or civil/criminal consequences outlined for breach of this determination. The determination is a disallowable legislative instrument and is subject to the interpretation principles in the Legislation Act 2003, as modified by section 58B of the Defence Act. The determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The payment to the member's father does not limit any human rights and is consistent with human rights standards.