EXPLANATORY STATEMENT

Defence Determination 2016/32

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.

This Determination amends the following Chapters of the Principal Determination.

• Chapter 5 sets out provisions dealing with leave for members of the Australian Defence Force (ADF).
• Chapter 15 sets out provisions dealing with living and working on long-term posting overseas for members of the Australian Defence Force (ADF) and Australian Public Service (APS) employees.

The Determination has the following two purposes.

• To set the Christmas stand-down period for 2016-2017.
• To implement revised post indexes for ADF members at overseas posting locations. A data service provider works out the post index from local prices surveyed in March and September each year. An exchange rate movement in the national currency of 2 per cent or more since the post index was last varied then prompts an amending Determination to vary the post index.

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 of this Determination provides that the Determination commences on 20 October 2016 to allow time for the administration of the associated benefits.

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.

Sections 5 and 6 amend subsection 5.12.3.1 and subsection 15.1.5.1, respectively, of the Principal Determination, which set out the period of Christmas stand-down. The dates for the past 2015-2016 break have been replaced by the Christmas stand-down dates for 2016-2017.

Section 7 substitutes Annex 15.2.A of the Principal Determination. The new table changes post indexes at a range of posting locations. The changes are due to recent exchange rate movements. The following summarises the changes.

• The applied post index rate decreased for Papua New Guinea.

• The published post index rates decreased for Malaysia. However, as the indexes were below 100 the last time the index changed and have remained below 100, there is no affect to the benefits paid to members in this location.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Consultation

Consultation is not considered necessary in the adjustment of the Christmas stand-down period as this falls within the bounds of routine, house keeping of an established benefit.

Consultation is not considered necessary in the monthly Post Index adjustment process as this falls within the bounds of routine, house keeping of an established benefit. The data is provided to Defence from a recognised data provider and the adjustments are made according to established policy. Where an adjustment results in a major change to any particular country/location, the overseas post is provided with advance notification of the pending change.

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 2016/32, Christmas stand-down and post indexes

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

The Determination has the following two purposes.

• To set the Christmas stand-down period for 2016-2017.
• To implement revised post indexes for ADF members at overseas posting locations. A data service provider works out the post index from local prices surveyed in March and September each year. An exchange rate movement in the national currency of 2 per cent or more since the post index was last varied then prompts an amending Determination to vary the post index.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

The protection of a person's right to remuneration engages Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7 guarantees just and favourable conditions of work, including remuneration, safe and healthy conditions, equal opportunity and reasonable limitations.

Christmas stand-down

Legitimate objective: The Christmas stand-down is a period of reduced activity across Defence. Typically members will not be required to attend for duty over the stand-down period. The stand-down provision allows members to be paid for leave over this period of time without using their accrued leave credits.

Reasonable, necessary and proportionate: This Determination provides the 2016-2017 Christmas stand-down dates. This is equal to what is offered to Defence Australian Public Service employees and it is beyond Australian community standards of leave and public holidays at Christmas time.

Post indexes

Legitimate objective: Defence members are posted to perform duty in overseas locations. This could cause the member and their family economic hardship if the location has a high cost of living. The purpose of a post index is to show the relative cost of living at a posting location compared with Australia. This is then used to calculate various overseas allowances.

Reasonable, necessary and proportionate: This Determination adjusts the post indexes to ensure that an affected person continues to receive just and favourable remuneration. The post indexes and associated overseas allowances assist the member and their family to not suffer a disadvantage because of the requirement for the member to live and work overseas.

Conclusion

This Determination is compatible with human rights because it does not limit any human rights.

Phillip John Hoglin, Acting Assistant Secretary People Policy and Employment Conditions