Overview

Defence Determination 2017/21, issued under the Defence Act 1903, was enacted to address issues related to the payment of higher duties allowance to members of the Australian Defence Force (ADF) when they are assigned to higher positions. This determination was made by the Australian government, ensuring alignment with the legislative framework set out in the Defence Act and the Acts Interpretation Act 1901. The primary objectives of this determination are to eliminate the trial period that previously assessed a member's competence to perform higher duties before they could receive higher duties allowance and to clarify that a member must be directed by a directing member to perform higher duties. These changes aim to streamline the process of assigning higher duties and ensure that members are appropriately compensated for their increased responsibilities. The determination has been developed in consultation with the Navy, Army, and Air Force, and it has been deemed compatible with human rights as recognised by the International Covenant on Economic, Social and Cultural Rights, particularly Article 7, which guarantees just and favourable conditions of work. The changes made by this determination are considered reasonable and proportionate to the need to fill job vacancies within the ADF while ensuring that members are adequately remunerated for their skills and experience. This determination ensures that members are not directed to perform higher duties unless they meet the necessary eligibility criteria, thereby advancing the protection of human rights within the ADF.

Scope and Application

The Defence Determination 2017/21 amends Defence Determination 2016/19, which sets out the conditions of service for members of the Australian Defence Force (ADF). This amendment, made under section 58B of the Defence Act 1903 and in accordance with the Acts Interpretation Act 1901, applies to all members of the ADF and aims to modify the provisions concerning allowances and reimbursements, particularly the higher duties allowance. The Determination removes the trial period for a member to receive higher duties allowance when posted to a higher position and clarifies that a member must be directed by a directing member to perform higher duties. The changes made by this Determination ensure that members are properly remunerated for their additional skills and that they meet the eligibility criteria for performing higher duties. This Determination has a national reach, applying across all jurisdictions where the Defence Act is applicable, and it commenced on 29 June 2017. The amendments and transitional provisions are detailed in the Schedules of the Determination, which specify the sections of the Principal Determination that are amended or repealed. The Determination has been assessed for compatibility with human rights, ensuring it advances the protection of human rights, particularly in relation to the right to the enjoyment of just and favourable conditions of work.

Key Provisions

The Defence Determination 2017/21, made under section 58B of the Defence Act 1903, amends the Defence Determination 2016/19 concerning the conditions of service for members of the Australian Defence Force (ADF). It specifically addresses provisions related to allowances and reimbursements, particularly the higher duties allowance. According to section 4.1.2.1 of the amended determination, a member can only perform higher duties if they are directed to do so by a directing member, as outlined in Division 2 of the Principal Determination. Additionally, section 4.1.17, which previously allowed for a trial period to assess a member's competence to perform higher duties before paying them, has been repealed. This change aligns with other provisions in the Part that require the decision-maker to be satisfied that the member is capable of performing the higher duties before any direction is issued. The obligations imposed by this Determination include ensuring that any member performing higher duties must be formally directed to do so by a designated directing member, as per the new provisions in section 4.1.2.1. This requirement clarifies the process for assigning higher duties and ensures that it is done in accordance with the regulations outlined in the ADF's conditions of service. Furthermore, the repeal of section 4.1.17 means that members will no longer undergo a trial period to determine their competence for higher duties. Instead, they must meet the eligibility criteria and be directed by a directing member before being allowed to perform such duties. Failure to comply with the requirements outlined in this Determination can result in administrative and legal consequences. For example, directing a member to perform higher duties without meeting the eligibility criteria could be seen as a breach of the conditions of service, potentially leading to disciplinary actions against both the directing member and the member in question. The specific penalties for breaches are not detailed in the Determination but can include administrative penalties, loss of allowances, or other disciplinary measures as deemed appropriate by the ADF. It is important to note that the repealed section 4.1.17 continues to apply to members who were on a trial period for higher duties immediately before the commencement of this Determination, as specified in Schedule 2. This Determination has been crafted to ensure compatibility with human rights, particularly the right to just and favourable conditions of work as protected by Article 7 of the International Covenant on Economic, Social and Cultural Rights. By removing the trial period for higher duties and clarifying the criteria for performing such duties, the Determination aims to provide a fair and transparent process for members of the ADF. This approach ensures that members are properly remunerated for their additional skills and responsibilities, thereby advancing the protection of their human rights within the ADF framework.