EXPLANATORY STATEMENT
Defence Determination 2016/43
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.
Chapter 2 of the Principal Determination sets out provisions dealing with joining and leaving the ADF for members of the Australian Defence Force (ADF).
The purpose of this Determination is to amend provisions in the Principal Determination under the management-initiated early retirement scheme to reflect recent changes to Defence legislation. Chapter 8 Part 3 of the repealed Defence (Personnel) Regulations 2002 set out provisions ('the former provisions') on alteration of the service obligation by payment of a special benefit (determined under section 58B of the Defence Act 1903). It applied to members above a certain rank and provided a detailed process to offer a member a special benefit.
The Defence (Personnel) Regulations 2002 were repealed by the Defence Regulation 2016 ['the new regulation'] on 1 October 2016. The effect of the former provisions will now be achieved by providing a special benefit payment under section 58B of the Defence Act when a member is selected for a command-initiated transfer to the Reserves and the Chief of the Defence Force transfers the member to the Reserves within 30 days of notifying the member of his decision under section 16 of the Defence Regulation.
This Determination amends Chapter 2 Part 3 Division 3 of the Principal Determination to reflect the changes above. It is intended to be policy neutral, with the exception of expanding the policy to cover members at all ranks. The process for being selected for this payment is set out in the Defence Military Personnel Policy Manual Part 10, Chapter 7: Command-initiated Transfer to the Reserves.
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 19 December 2016.
Section 3 provides that the authority for the instrument is under section 58B of the Defence Act 1903.
Section 4 specifies that the amendment is made to the Principal Determination, as amended.
Section 5 substitutes Chapter 2 Part 3 Division 3 of the Principal Determination.
- Section 2.3.20 explains the purpose of special benefit payment.
- Section 2.3.21 provides that a reference to the 'Defence Regulation' means the Defence Regulation 2016, as in force form time to time. The Defence Regulations are available on the Federal Register of Legislative Instruments at www.legislation.gov.au.
- Section 2.3.22 sets out who is eligible for a special benefit under this Division. The conditions include the requirement for a member to be identified for 'command-initiated transfer to the Reserves' as set out in Part 10, Chapter 7 of the Military Personnel Policy Manual (the manual). The manual sets out the process for identifying a member for transfer from the Permanent Forces to the Reserves for specified workforce planning reasons. Part 10, Chapter 7 of the manual is being incorporated by reference as at the date of its publication. The manual is available at http://www.defence.gov.au/PayAndConditions.
The other eligibility conditions include a requirement for a decision to be made by the Chief of Defence Force to transfer the member to the Reserves under section 16 of the Defence Regulation, and a member transferring to the Reserves within 30 days of the date the CDF notifies the member of his decision under section 16 of the Defence Regulations.
- Section 2.3.23 sets out the amount of special benefit that can be paid under the Division. It is calculated on a similar basis as a redundancy payment under Chapter 2 Division 2 of the Principal Determination.
- Section 2.3.24 provides for a member to repay their special benefit if they return to continuous full-time service within a year of receiving it. This emphasises that the payment is intended only for genuine workforce structural reforms of the Defence Force.
Section 6 provides a transitional provision to ensure members are not disadvantaged by the amendments made by this Determination. Members who were offered a benefit under the former regulations will still be eligible for payment under Chapter 2 Part 3 Division 3 of the Principal Determination as it applied before the commencement of this Determination.
Navy, Army, Air Force and other internal stakeholders where consulted during the development of this Determination. The Commonwealth Superannuation Corporation was also consulted with respect to the operation of the policy.
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 2016/43, Special benefit payment – 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
This Determination makes amendments to Defence Determination 2016/19, Conditions of service (the Principal Determination).
The purpose of this Determination is to amend provisions in the Principal Determination under the management-initiated early retirement scheme (Chapter 2 Part 3 Division 3) to reflect recent changes to Defence legislation and a new policy direction.
Human rights implications
Right to work
The protection of a person's right to work engages Article 6 of the International Covenant on Economic, Social and Cultural Rights. Article 6 recognises the right of everyone to the opportunity to gain their living by work which they freely choose or accept.
Right to the enjoyment of just and favourable conditions of work
The protection of a person's right to just and favourable conditions of work 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.
Right to an adequate standard of living
The protection of a person's right to an adequate standard of living engages Article 11(1) of the International Covenant on Economic, Social and Cultural Rights. Article 11(1) guarantees everyone an adequate standard of living for themselves and their families (including adequate food, clothing and housing), and the continuous improvement to those conditions.
The Defence Regulation provides for the end of a member's service, including provisions on becoming a member of the Reserves, being compulsorily transfer to the Reserves and termination of service. Decisions under section 16 of the Defence Regulation to transfer a member from the Permanent Force to the Reserves may engage the right to work under article 6(1) but this Determination does not engage this right.
Section 16 of the Regulation requires that a member must be issued a notice under section 30 of the Regulation and be given the opportunity to respond before a decision is made. Decision may be made for reasons for being in or not being in the 'interests of the Defence Force', including workforce planning in the Defence Force. Transferring a member provides opportunity for a reasonable rotation of Defence members through ranks and positions to ensure the ADF is a capable and dynamic force.
This Determination provides a special payment for members who are transferred for specific workforce planning reasons. It provides a payment of up to 48 weeks salary. This determination is in agreement with the remuneration right provided by articles 7(a) and the improvement to the standard of living provided in article 11(1) of the International Covenant on Economic, Social and Cultural Rights.
Conclusion
This Determination is compatible with human rights because it promotes the protection of human rights.
Lisa Annette Arnold, Acting Assistant Secretary People Policy and Employment Conditions