EXPLANATORY STATEMENT

Defence Determination 2017/28

This Determination is 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.

For the purpose of adopting Defence Force Remuneration Tribunal (DFRT) determinations, being instruments other than a legislative instrument, section 58B(1A) of the Defence Act provides a contrary intention to section 14(2) of the Legislation Act 2003. Accordingly, Defence Force Remuneration Tribunal Determination No. 2 of 2017, Salaries (DFRT No. 2 of 2017), is incorporated into this Determination as in force from time to time.

The purpose of this Determination is to provide financial assistance to two members currently undertaking a period of service with the United Nations. These members have indicated they are experiencing financial hardship due to the high cost of rent and utilities in location.

A member undertaking a period of service with the United Nations receives remuneration and benefits provided by the United Nations. This arrangement means that a member undertaking a period of service with the United Nations would not receive the same remuneration and benefits that a member performing similar duties in the same location on long-term overseas posting would receive from the ADF. Members undertaking a period of service with the United Nations receive a lower level of rent and utilities assistance than if the member were on a long-term overseas posting with the ADF. In this case the difference has resulted in financial hardship for the members.

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

Section 2 is the commencement provision for the Determination and includes a table setting out the details of the commencement of sections of the Determination. Column 1 of the table sets out the provisions in numbered items, column 2 sets out the commencement and column 3 sets out date/details. Information in column 3 does not form part of the Act, so information can subsequently be inserted in the column (or edited) in a published version of the Determination. Item 1 in the table provides that the whole of this Determination commences on the day after it is registered.

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

Section 4 provides that this Determination applies to a member who, on the commencement of this Determination, is on a contract of employment with the United Nations and who is not receiving remuneration from the Australian Defence Force (ADF).

Section 5 provides that for the purposes of this Determination the eligible period starts on 3 April 2017, which is the date Defence Determination 2017/11, Service with the United Nations – amendment commenced. Defence Determination 2017/11, Service with the United Nations – amendment enables a member undertaking a period of service with the United Nations to be remunerated by the ADF, and to be eligible for benefits provided under Defence Determination 2016/19, Conditions of service, as in force from time to time. The eligible period will not be extended to include a new, or amended, contract period with the United Nations which commenced on or after this Determination.

Section 6 provides the formula to be used to calculate the total benefit which is to be paid to members who are eligible under section 5 of this Determination. The total benefit is equivalent to the sum of the housing benefits and the utilities benefit payable to the member under Chapter 15 Part 4 of Defence Determination 2016/19, Conditions of service, as in force from time to time, less any rent subsidy that the member received from the United Nations towards the rent payable by the member during the eligible period.

Section 7 provides that the member may be paid the total benefit either on resumption of receiving salary payable under DFRT No. 2 of 2017, or at a time determined by the Chief of Defence Force if satisfied that the member is suffering financial hardship.

If the Chief of Defence Force is satisfied that the member is suffering financial hardship during the eligible period, the member may be approved to receive one or more part payments, up to the total benefit. If the member receives one or more payments under subsection 7.2 of this Determination, the member is to be paid the amount of the total benefit that has not already been paid on resumption of salary being payable to the member under the DFRT No. 2 of 2017.

Payments received under Section 7 of this Determination must not exceed the total benefit calculated under Section 6 of this Determination.

Section 8 provides that the member is eligible for a removal back to Australia using the removal provisions provided under Chapter 14 Part 3 of Defence Determination 2016/19, Conditions of service, as in force from time to time. This removal is only provided if the member’s contract of employment with the United Nation ends early and the United Nations is not providing a removal back to Australia.

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

Defence International Policy Division, the Deputy Head of Mission, United Nations New York and the relevant overseas posts were consulted in the preparation of this Determination. The rule maker was satisfied that further internal or external consultation was not required.

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 2017/28, Overseas financial supplement

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 provide financial assistance to two members currently undertaking a period of service with the United Nations. These members have indicated they are experiencing financial hardship due to the high cost of rent and utilities in location.

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.

A member undertaking a period of service with the United Nations (UN) receives remuneration and benefits provided under the UN contract of employment, applied under the UN Staff Regulations. This arrangement means that a member undertaking a period of service with the UN does not receive the same remuneration and benefits that a member performing similar duties in the same location on long-term overseas posting would receive from Defence.

Members who are currently on a contract of employment with the UN receive a subsidy towards their rent and utilities from the UN and the members are required to pay the remaining amount. The amount that the members pay is significantly higher than what they would be expected to contribute if they were on a long-term overseas posting with the ADF. This difference has caused some financial hardship for the members and their dependants.

This Determination provides a payment for rent and utilities that is equivalent to the difference between what has been paid by the member and the sum of the subsidy paid by the UN and what the member would have contributed towards rent and utilities if they were on a long-term overseas posting. This payment ensures that a member on a contract of employment with the UN, and performing similar duties to those on long-term posting, is not disadvantaged due to their work with the UN.

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