Defence Determination 2017/7, Special benefit payment – amendment

Administered by Department of Defence

Legislation au F2017L00187 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Defence Determination 2017/7

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.

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. Section 58B(1A) of the Defence Act permits DFRT determinations, as in force from time to time, being adopted in this determination in accordance with section 14(1)(b) of the Legislation Act 2003.

This Determination repeals Defence Determination 2016/43, Special benefit payment – amendment and remakes those rules in this Determination with a revised transitional provision. Defence Determination 2016/43 is repealed to address an oversight with its transitional arrangements.

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 Chapter 8 Part 3 of the repealed Defence (Personnel) Regulations 2002 set out provisions ('the former provisions') on alteration of the service obligation by payment of a special benefit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 Australian Defence Force (ADF) 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The Defence (Personnel) Regulations 2002 were repealed by the Defence Regulation 2016 ('the new regulation') on 1 October 2016.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 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 sections 1 to 4 of this Determination commence on the day after registration.

Item 2 in the table provides that Schedule 1 commences on 19 December 2016.

Item 3 in the table provides that Schedule 2 commences on 19 December 2016.

The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such person.

Section 3 provides that the authority for the instrument is 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 repeals Defence Determination 2016/43, Special benefit payment – amendment. The transitional provision in section 6 of Defence Determination 2016/43 was not wide enough in its application. The transitional provision only covered members who had received an offer of special benefit and unintentionally excluded members who had received a preliminary notice but had not yet received the offer. This repeal has a retrospective commencement of 19 December 2016, the date Defence Determination 2016/43 commenced. A revised transitional provision is set out in Schedule 2 Part 2 of this Determination.

Schedule 2 Part 1 amends the Principal Determination by repealing and substituting Chapter 2 Part 3 Division 3. The sections of the new Division are set out below.

  • 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 Chief of Defence Force 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.

Schedule 2 Part 2 provides a transitional provision to ensure members are not disadvantaged by the amendments made by this Determination. This provision provides that if a process had begun under the Defence (Personnel) Regulations 2002 prior to their repeal then the rules that would have applied to the member under the Principal Determination had it not been repealed continue to apply. Schedule 2 has a retrospective commencement of 19 December 2016, the date Defence Determination 2016/43 commenced.

 

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 2017/7, 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 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 transferred 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

 

Overview

The Defence Determination 2017/7 was enacted to amend Defence Determination 2016/19, Conditions of service, under section 58B of the Defence Act 1903, and in accordance with subsection 33(3) of the Acts Interpretation Act 1901. This Determination was introduced to address the oversight in the transitional arrangements of Defence Determination 2016/43, Special benefit payment – amendment, and to reflect recent changes to Defence legislation. The Defence Force Remuneration Tribunal (DFRT) determinations are adopted under section 58B(1A) of the Defence Act, contrary to section 14(2) of the Legislation Act 2003. The policy objective of this Determination is to ensure members of the Australian Defence Force (ADF) are not disadvantaged by the amendments made, while also expanding the policy to cover members at all ranks. This Determination repeals Defence Determination 2016/43 and remakes those rules with a revised transitional provision. The special benefit payment is now applicable to ADF members selected for a command-initiated transfer to the Reserves, with a decision made by the Chief of Defence Force to transfer the member to the Reserves within 30 days of notification. This change aligns with the Defence Regulation 2016 and ensures the end of a member's service is handled appropriately, including provisions on becoming a member of the Reserves and termination of service. The special benefit payment provided under this Determination is intended only for genuine workforce structural reforms of the Defence Force and is in agreement with the remuneration right and improvement to the standard of living provided in the International Covenant on Economic, Social and Cultural Rights.

Scope and Application

The Defence Determination 2017/7 amends Defence Determination 2016/19, Conditions of service, to reflect recent changes to Defence legislation and policy direction. It applies to all members of the Australian Defence Force (ADF) who are eligible for a special benefit payment under the management-initiated early retirement scheme, irrespective of their rank. This Determination ensures that the special benefit payment aligns with the new policy, particularly in relation to the Defence Regulation 2016, which replaced the Defence (Personnel) Regulations 2002. The Determination also includes a revised transitional provision to address an oversight in the previous determination that unintentionally excluded certain members from the transitional arrangements. The amendments made by this Determination are intended to be policy neutral, with the exception of expanding the policy to cover members at all ranks. The scope of this Determination is Commonwealth-wide, given its foundation under the Defence Act 1903 and the Defence Regulation 2016. The Determination does not explicitly state any exclusions, exemptions, or thresholds but focuses on ensuring that the special benefit payment is appropriately aligned with current Defence policies and legislative changes. The retrospective application of this Determination does not affect the rights of individuals in a prejudicial manner, nor does it impose any additional liability on them. The Determination is compatible with human rights as it supports the right to just and favourable conditions of work and an adequate standard of living under international human rights instruments.

Key Provisions

Defence Determination 2017/7 amends Defence Determination 2016/19, Conditions of service (referred to as the Principal Determination), made under section 58B of the Defence Act 1903. The purpose of this amendment is to align the conditions of service with recent changes in Defence legislation, particularly those affecting the management-initiated early retirement scheme (section 2.3.20). The changes also reflect a policy shift to include members at all ranks (section 2.3.22). Members eligible for a special benefit payment under this Division must be identified for a command-initiated transfer to the Reserves (section 2.3.22). This transfer must be decided by the Chief of the Defence Force under section 16 of the Defence Regulation, and the member must transfer to the Reserves within 30 days of notification (section 2.3.22). The special benefit payment is calculated similarly to a redundancy payment (section 2.3.23) and can be up to 48 weeks' salary. Members who return to continuous full-time service within a year of receiving the special benefit must repay it (section 2.3.24). The obligations imposed by this Determination on the parties or entities it governs include adherence to the eligibility criteria for the special benefit payment. Members must be identified for a command-initiated transfer to the Reserves, and the Chief of the Defence Force must make the decision to transfer the member to the Reserves within the specified timeframe. The Defence Force Remuneration Tribunal (DFRT) determinations are adopted in accordance with section 58B(1A) of the Defence Act, and the transitional provisions ensure that members who were in the process under the repealed Defence (Personnel) Regulations 2002 continue to be covered by the rules that applied to them previously. Breaches of the provisions under this Determination could lead to civil or administrative consequences. For instance, if a member who is eligible for a special benefit payment fails to repay the benefit when returning to continuous full-time service within a year, they would be required to repay the amount. Similarly, failure to adhere to the eligibility criteria or the transfer timelines could result in the member not being entitled to the special benefit payment. While the Determination does not explicitly outline criminal penalties, non-compliance with Defence regulations and determinations could potentially lead to disciplinary actions under Defence Force discipline rules. In conclusion, Defence Determination 2017/7 introduces amendments to the conditions of service for members being transferred to the Reserves under the management-initiated early retirement scheme. It sets out clear eligibility criteria and the process for calculating and repaying special benefit payments, ensuring that the policy aligns with recent legislative changes and maintains its compatibility with human rights provisions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.