EXPLANATORY STATEMENT
Defence Determination 2016/28
This Determination amends Defence Determination 2016/19, 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.
In making this Determination, the rule-maker has taken the Caretaker Conventions into account. The amendments made to the Principal Determination are technical adjustments and minor rate changes and do not deviate from previously approved policy. As such, the amendments are consistent with the continued observance of the Caretaker Conventions.
This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).
- Chapter 1 of the Principal Determination sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions for members of the ADF.
- Chapter 3 of the Principal Determination sets out provisions dealing with salaries and bonuses.
- Chapter 4 which sets out provisions dealing with allowances and reimbursements.
- Chapter 8 which sets out provisions dealing with members and their dependants.
- Chapter 15 which sets out provisions dealing with living and working on long-term posting overseas.
- Chapter 17 which sets out provisions dealing with warlike and non-warlike deployments.
This Determination has the following purposes.
- To correct some minor technical errors that were overlooked when drafting the Principal Determination.
- To adjust the maximum amount a member's dependant may earn before the member is ineligible for trainee's dependant allowance.
- To align salary administration policy with provisions set by the Defence Force Remuneration Tribunal.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 of this Determination provides the Determination commences on 1 July 2016.
Section 3 provides that this instrument has authority under section 58B of the Defence Act 1903.
Section 4 specifies that the amendment is made to the Principal Determination, as amended.
Section 5 inserts an administrative note into subsection 1.3.89.1 of the Principal Determination, which provides a definition of de facto partner. The note is intended to alert readers to specific matters relating to the definition of de facto in the Acts Interpretation Act 1901. It is also intended to alert readers to relevant State and Territory legislation.
Section 6 substitutes the title of section 3.2.6 of the Principal Determination, which provides the method of payment for members on continuous full-time service. The former heading provided that the section applied to members of the Permanent Forces. Clause 1 removes the term 'Permanent Forces' because the section applies to any member on continuous full-time service.
Section 7 removes the provision from subsection 3.2.7.2 of the Principal Determination that the pro-rated daily rate of allowances set by the Defence Force Remuneration Tribunal (DFRT) is one tenth the fortnightly rate when the member is on part-time leave without pay. This is no longer the case for allowances set by the DFRT. Allowances under DFRT Determination No. 11 of 2013, ADF Allowances, are all based on a 365 day year and 14 day fortnight for all ADF members, including members on part-time leave without pay.
Section 8 inserts paratrooper allowance to the table in paragraph 3.2.7.3.a of the Principal Determination, which lists allowances for which the pro rata daily rate is one fourteenth of the fortnightly rate. The changes are required as a result of DFRT Determination No. 13 of 2015, ADF Allowances – Paratrooper – Amendment. This DFRT amending determination added paratrooper allowance to the principal DFRT Determination No. 11 of 2013, ADF Allowances, which provides that all allowances are based on a 365 day year and 14 day fortnight.
Section 9 amends paragraph 4.8.6.a of the Principal Determination which provides that a member is not eligible for trainee's dependant allowance if their dependant earns above the national minimum wage. Clause 4 of Schedule 1 amends the national minimum wage figure to reflect the new figure set by the Fair Work Commission which is effective 1 July 2016, the day this Determination is effective.
Section 10 inserts subsection 8.9.7.2 into the Principal Determination, which provides that only one ADF member per family may register for the National ADF Family Health Program. This subsection was inadvertently omitted in the making of the Principal Determination.
Section 11 amends note 1 of subsection 15.6.10.1B of the Principal Determination. The note referred to the subsection using the former term used in the old Principal Determination, 'subclause'. Section 11 corrects this.
Section 12 amends subsection 17.4.14.2 of the Principal Determination, which provides that the CDF may provide extension to the period a member may receive benefits under the Australians Dangerously Ill Scheme. The word 'are' was missing from the sentence.
Section 13 amends the table of subsection 17.7.6.1 of the Principal Determination, which provides information on deployments that attract deployment allowance. Table item 3 referred to 1997 instead of 1979 which was the year that the peace treaty was signed between Egypt and Israel and set an international boundary.
Consultation
No external consultation was undertaken in accordance with section 17 of the Legislation Act 2003 before this Determination was made as it is a minor or machinery nature and does not alter existing arrangements. It makes minor amendments and technical adjustments.
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 2016/28, Technical adjustments
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
- To correct some minor technical errors that were overlooked when drafting the Principal Determination.
- To adjust the maximum amount a member's dependant may earn before the member is ineligible for trainee's dependant allowance.
- To align salary administration policy with provisions set by the Defence Force Remuneration Tribunal.
Human rights implications
The protection of a person's right to care for dependants
The protection of a person's right to care for dependants engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance to families, including their responsibility for the education and care of dependent children.
Legitimate objective: Defence recognises the importance of supplementing a trainee's salary when they are supporting one or more eligible dependants.
Reasonable, necessary and proportionate: This Determination brings the trainee's dependant allowance figure in line with the current minimum wage in Australia. Trainee's dependant allowance supplements a trainee's salary when they are supporting one or more eligible dependants.
Right to the enjoyment of just and favourable conditions of work
Article 7 the International Covenant on Economic, Social and Cultural Rights guarantees the right to just and favourable conditions of work, including remuneration, safe and healthy conditions, equal opportunity and reasonable limitations.
This Determination protects this right by correcting errors and simplifying policy to assist people to better understand and apply benefits, and so they are able to better assess the relative fairness and adequacy of their benefits.
Conclusion
This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Lisa Annette Arnold, Acting Assistant Secretary People Policy and Employment Conditions