EXPLANATORY STATEMENT

Defence Determination 2017/13

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 which set out provisions for members of the Australian Defence Force (ADF).

• Chapter 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
• Chapter 3 sets out provisions dealing with salaries and bonuses.
• Chapter 4 sets out provisions dealing with allowances and reimbursements.
• Chapter 5 sets out provisions dealing with leave.
• Chapter 7 sets out provisions dealing with housing and meals.
• Chapter 14 sets out provisions dealing with relocating to or from long-term posting overseas.

The purpose of this Determination is to make the Principal Determination compliant with section 14 of the Legislation Act 2003 (LI Act).

Background

Section 58B Defence Determinations became legislative instruments on 5 March 2016 as a consequence of amendments made to the Legislation Act 2003 and therefore subject to the provisions under section 14 of the LI Act. Section 14 of the LI Act sets limits on the circumstances when a legislative instrument can prescribe matters by reference to another instrument or writing. Section 14 of the LI Act has the following operation:

• A legislative instrument may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing at the time the legislative instrument ‘takes effect’.
• However, a legislative instrument cannot make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing (other than a Commonwealth Act or a disallowable legislative instrument) as in force or existing ‘from time to time’.

This Determination provides that any reference within the Principal Determination to provisions in other legislative instruments, are either as they were in force on a particular date or as in force from time to time. It also removes references to many non-legislative instruments or inserts provisions to be incorporated are as they were on the commencement of this Determination.

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 6 April 2017.

Section 3 provides that this instrument has authority under section 58B of the Defence Act 1903.

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms. Schedule 1 sets out amendments to the Principal Determination.

Schedule 1 section 1 inserts section 1.2.5A into the Principal Determination. The new section provides that any reference within the Principal Determination to provisions in other legislative instruments, are either as they were in force on a particular date or as in force from time to time. The types of instruments that these provisions apply to are also listed.

Schedule 1 sections 2 to 16 amend the Principal Determination by repealing or substituting external references that incorporate provisions external to the Principal Determination. The changes are to ensure compliancy with section 14 of the LI Act. Where possible, reference to non-legislative instruments are omitted, however, where not possible the provisions referred to are those in force on the commencement of this Determination. The following specific changes are made to the Principal Determination.

• Section 2 omits subsection 1.3.93.5, which contained a reference to a Defence Instructions (General). Section 2 provides that the provisions in the instruction are as they were published on the commencement of this Determination.
• Sections 3 and 4 repeal and substitute subsection 3.6.6.6 and Annex 3.6.A table item 7 respectively, which provide that a deliberately differentiated offer may include flexible work arrangements in accordance with the Military Personnel Policy Manual. The references to the manual are removed and the provisions now state that the flexible work arrangements are provided by Defence.
• Section 5 amends section 4.6.3 which provided a definition for the non-legislative instrument 'Executive Vehicle Allowance guidelines'. The term is removed from the definitions table because it is no longer used in the Part.
• Section 6 repeals and substitutes paragraph 5.2.6.2.b, which provides a reason for which a member is eligible to apply for a waiver to travel to a restricted destination. The paragraph contains a note that makes reference to a Defence Instructions (General) which contains provisions that must be considered as a part of the approval process. The paragraph is restructured so that the rule is not contained in a note and to provide that the provisions in the Defence Instructions (General) are as they were in force on the commencement of this Determination.
• Section 7 repeals and substitutes paragraph 5.10.4.3.h, which provides that the Chief of Defence Force, when deciding whether to grant a member a period of 'leave without pay', must consider any employment approved for the member under the Military Personnel Policy Manual. The specific reference was no longer correct. Section 7 provides the correct reference and provides that the provisions incorporated into the Principal Determination are as they were published on the commencement of this Determination.
• Sections 8, 9, 13, 14 and 15 amend subsection 7.4.12.2, paragraph 7.4.31.2.c, subsection 7.8.46.3 and subsection 14.2.9.5 respectively by replacing references to 'Accountable Authority Instructions' within the Defence 'Financial Management Manual' with the Public Governance, Performance and accountability Act 2013 (PGPA Act). By changing the reference to the PGPA Act it is not necessary to insert a particular date as the PGPA Act can be referenced as in force from time to time.
• Section 11 repeals the examples in Annex 7.4.A, subsection 7.4.A.9.2. The examples were of Defence Instructions (General) that set conditions of conduct that a member must comply to. It is sufficient to simply specify the section of the Defence Act 1903 under which the instructions are made.
• Section 12 amends Annex 7.4.A, subsection 7.4.A.25.2, which provides that a member must first notify an accommodation manager if they have a concern or complaint about their accommodation. An exception is if the concern involves criminal or unacceptable behaviour. The exception referenced a Defence Instructions (General) for methods to complain in these circumstances. Section 12 omits the exception.
• Section 16 amends section 14.4.4, which references the Department of Finance Resource Management Guide No. 405. Section 20 provides that the provisions in this guide are as they were in force on the commencement of this Determination.

Consultation

Consultation is not considered necessary as this Determination is policy neutral and consequential amendments to the Principal Determination to ensure it is compliant with section 14 of the Legislation Act 2003.

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 2017/13, Incorporation by reference – 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 purpose of this Determination is to make the Principal Determination compliant with section 14 of the Legislation Act 2003 (LI Act).

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.

This Determination makes the Principal Determination compliant with section 14 of the Legislation Act 2003 (LI Act), which sets limits on the circumstances when a legislative instrument can incorporate by reference to provisions in another instrument or writing. Incorporation by reference should be limited to circumstances where the documents being incorporated are publicly available for free or at a minimal cost. It is a fundamental principle of the Legislative Instruments Act, and of ‘access to justice’, that people are easily able to understand their rights and obligations at law. It follows that documents that are incorporated as law must be as easy to access as legislation and legislative instruments. This is also consistent with human rights principles.

By ensuring compliancy with s 14 of the Legislation Act, this Determination advances members' favourable conditions of work by ensuring pay and conditions provisions are publicly available.

Conclusion

This Determination is compatible with human rights because it advances the protection of human rights.

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