EXPLANATORY STATEMENT

Defence Determination 2016/33

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 4 sets out provisions dealing with allowances and reimbursements for members of the Australian Defence Force (ADF).
• Chapter 17 sets out provisions dealing with warlike and non-warlike deployments for members of the ADF.

The Determination has the following purposes.

• To increase the maximum amount a member may be reimbursed for additional risk life insurance.
• To increase the daily deployment allowance rates for members deployed on overseas operations.
• To extend the specified area for Operation OKRA to include Syria and eastern Turkey.

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 3 November 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 amends subsection 4.10.4.1 of the Principal Determination, which sets the maximum amount that a member may be reimbursed for the additional costs of buying life insurance, due to the nature of ADF duties. The rate that may be reimbursed for life insurance has increased by 2%, and then rounded to the nearest dollar. The change to this rate generally follows the adjustment to the salaries of ADF members under the ADF Workplace Remuneration Arrangement, published at www.dfrt.gov.au.

Section 6 substitutes the table in subsection 17.7.6.1 of the Principal Determination, which provides the daily rates of deployment allowance payable to members deployed on various warlike and non-warlike operations. The rates of deployment allowance have increased by 2%. The change to the rates of deployment allowance generally follows the adjustment to the salaries of ADF members under the ADF Workplace Remuneration Arrangement, published at www.dfrt.gov.au.

Section 6 also extends the specified area for Operation OKRA to include Syria and the land territory of Turkey east of longitude 35° East. This area attracts deployment allowance for members deployed on Operation OKRA. This extension of the specified area for Operation OKRA was approved by the Assistant Minister for Defence on 4 May 2016 and has been backdated to 9 September 2015.

Section 7 is a transitional provision for members who were deployed on Operation OKRA and performed duty in Syria and eastern Turkey between 9 September 2015 and the commencement of this Determination. Eligible members are to be paid the relevant daily rate of deployment allowance for each day they performed duty in Syria or the land territory of Turkey east of longitude 35° East had these areas been determined as a part of the operational area from 9 September 2015.

The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such person.

Consultation

Consultation is not considered necessary in the annual additional insurance and deployment allowance adjustment processes as they falls within the bounds of routine, house keeping of established benefits. The adjustments are made according to established policy.

For the changes to the specified area of Operation OKRA, the Department of Prime Minister and Cabinet and the Department of Veterans' Affairs were consulted during the classification process in accordance with section 17 of the Legislation Act 2003 before this Determination was made. It is noted that decisions about the nature of service are subject to bipartisan consultation through Government and do not impact business or competition.

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 2016/33, Additional risk insurance and deployment allowance – amendment

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 purposes.

• To increase the maximum amount a member may be reimbursed for additional risk life insurance.
• To increase the daily deployment allowance rates for members deployed on overseas operations.
• To extend the specified area for Operation OKRA to include Syria and eastern Turkey.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

The protection of a person's right to leave and holidays 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.

Legitimate objective: Defence members may be required to perform duty in overseas locations which are areas of military conflict. Defence members who are deployed to some overseas locations will experience adverse conditions during service. These members are compensated for conditions that can include but are not limited to hazard, stress, climate, health care facilities, infrastructure and isolation.

Reasonable, necessary and proportionate: Defence requires its members to perform duty in these locations and therefore provides additional benefits, beyond the normal overseas conditions of service. Deployment allowance helps financially to compensate members for the conditions they encounter while on deployment.

This Determination increases deployment allowance rates by 2% in line with the increase to salary and other salary related allowances. It also makes an adjustment to the maximum annual amount Defence may contribute towards the cost of a member's life insurance. The assistance ensures the member is not financially disadvantaged because of the nature of their work.

This Determination also extends the specified area of Operation OKRA to include Syria and eastern Turkey. A transitional provision for members who were deployed on Operation OKRA between 9 September 2015 and the commencement of this Determination has also been provided. Eligible members are to be paid deployment allowance at the relevant rate for each day they performed duty in the operational area.

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