EXPLANATORY STATEMENT
Defence Determination 2017/43
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 4 of the Principal Determination sets out provisions dealing with allowances and reimbursements for members of the Australian Defence Force (ADF).
This Determination amends the provisions for health support allowance for members of the Reserves who are required to provide capability at short notice. In October last year, the Defence (Personnel) Regulations 2002 were repealed by the Defence Regulation 2016. Eligibility for health support allowance was tied to specified categories of the Reserves that had their meaning given by Regulation 5 of the Defence (Personnel) Regulations 2002. As a consequence of the repeal, section 4.9.16 of the Principal Determination is no longer able to operate.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that the instrument commences on the 11 January 2018.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 amends the Defence Determination 2016/19, Conditions of service
Schedule 1 amends Division 9 of the Principal Determination, which sets out health support allowance for members of the Reserves. The Division provides allowances to help Reserve members keep their health levels at required standards.
Section 1 omits section 4.9.15 of the Principal Determination, which set out definitions used within the Division. The definitions in this section are no longer required.
Section 2 substitutes section 4.9.16 of the Principal Determination which sets out application, eligibility and the payment requirements of health support allowance for members of the Reserves who provide capability at short notice. The allowance provides a payment for members who are insured by a private health insurance policy that meets specified conditions. The revised section 4.9.16 also includes the following.
It provides that the member must apply for the allowance. It requires that the application be made in a form (which may be electronic) and manner authorised by the Chief of the Defence Force (CDF). The application must contain any information and be accompanied by any supporting documents required by CDF. This means the CDF may specify what information is to be provided in applications, how applications are to be made and how they are to be lodged.
It provides that if the member cancels their insurance they need to repay the Commonwealth and shows how to calculate the amount to be repaid.
It also provides that the collection of sensitive information is authorised by the Privacy Act 1988. ‘Sensitive information’ is defined in subsection 6(1) of the Privacy Act 1988 to include health information. Australian Privacy Principle 3.4(a) authorises the collection of sensitive information if the collection is required or authorised by or under law. Subsection 4.9.16.8 provides the relevant authorisation.
Section 3 amends paragraph 4.9.17.1.b of the Principal Determination to update a cross reference to section 4.9.16 that changed as a result of the amendment in section 2 of this Determination. The rule in section 4.9.17 has not been affected by this amendment.
Section 4 omits a redundant form from Annex 4.9.A of the Principal Determination.
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
Internal consultation was undertaken during the development of this Determination. The rulemaker was satisfied that 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 2017/43, Health support 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
This Determination amends the provisions for health support allowance for members of the Reserves who are required to provide capability at short notice. It revises terms used for categories of the Reserve, to reflect changes brought about by the introduction of the Defence Regulation 2016.
Human rights implications
Right to physical and mental health
The protection of a person's right to physical and mental health engages Article 12 of the International Covenant on Economic, Social and Cultural Rights. Article 12 recognises the right to the enjoyment of the highest attainable standard of physical and mental health.
Legitimate objective: Defence provides health services to members of the Permanent Forces to maximise the health of its workforce, and to ensure the preparedness of members for operations. The health support allowances are paid to encourage members of the Reserve to seek regular health care, to ensure the greatest possible operational readiness for Reserve members.
Reasonable, necessary and proportionate: Reserve members have the same access to the Australian health care system as any other citizen. This Determination advances the member's right to the highest attainable standard of physical and mental health by providing allowances to assist with the financial cost of seeking regular health care.
The allowances are not paid unless members agree to provide information about their health, and, in some cases, seek further medical advice from their doctor. Medical information that the member chooses to provide is treated in accordance with the Privacy Act 1988.
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.
Phillip John Hoglin, Acting Assistant Secretary People Policy and Employment Conditions