Defence Determination, Conditions of service Amendment Determination 2022 (No. 7)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2022 (No. 7)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AI Act).

Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the Principal Determination which provides benefits for members of the Australian Defence Force (ADF) and their families as part of the member’s conditions of service. The Principal Determination provides a range of benefits that recognise the unique nature of military service and the obligations and limitations that military service places on members and their families. Members undertake service in both the domestic and overseas environments, including on deployments. Specific benefits are provided for each environment.

Purpose

The purpose of this Determination is to do the following:

• To extend the payment of the Operation COVID-19 ASSIST allowance to former members and to members who have died and to set the day from which it is payable to members.
• Include Operation LILIA as a new operation for the payment of deployment allowance, and to provide a transitional provision for members deployed on Operation LILIA between 25 November 2021 and the commencement of Schedules 2 and 3 of this Determination.

Operational Details

Details of the operation of the Determination are provided at annex A.

Retrospective application

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.

Human rights compatibility

The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.

Review options

Decisions that are made under the Principal Determination, as amended by this Determination, may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.

Consultation

Before this Determination was made, the following consultation was undertaken:

• Schedule 1: Headquarters Joint Operations Command and People Systems and Payroll Services Branch were consulted in the making of this Schedule.
• Schedules 2 and 3: The office of the Minister of Defence Personnel, the Nature of Service Directorate within Military Strategic Commitments Division, and Headquarters Joint Operation Command were consulted in the making of these Schedules.

The rule maker was satisfied that further consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment Determination 2022 (No. 7)

Operational details

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

Section 2 provides the following commencement dates:

• Sections 1 to 4 of the Determination and anything in the Determination not elsewhere covered by the table commences on the day after the instrument is registered.
• Schedule 1 of the Determination commences on 14 April 2022.
• Schedules 2 and 3 of the Determination commence on a day to be fixed by Assistant Secretary People Policy and Employment Conditions by notifiable instrument. If the provisions do not commence within the period of 12 months beginning on the day after this instrument is registered, the provisions are repealed on the day after the end of that period.

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

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—Operation COVID-19 ASSIST allowance – amendment

Item 1 repeals and substitutes section 4.12.2 of the Principal Determination which provides which members are eligible for Operation COVID-19 ASSIST allowance. The section has been amended to include a new subsection 2 which provides that Chapter 4 Part 12 also applies to a former member or a member who has dies. This ensures that any member who meets the eligibility conditions for the allowance for each day served on or after 25 March 2020 is eligible for the payment of the allowance even if they are no longer a member of the ADF.

Item 2 inserts a new section after section 4.12.3 of the Principal Determination. The new section specifies that the allowance is payable from a day specified by notifiable instrument made by the Director Drafting and Engagement in the Department of Defence.

Schedule 2—Operation LILIA amendments

Item 1 amends section 17.7.6 of the Principal Determination which provides eligible members with deployment allowance when deployed on an operation. The amendment inserts item 3A into the table in subsection 17.7.6.1 to include Operation LILIA, so that members deployed under Operation LILIA who perform duty in the specified area are eligible for deployment allowance.

Schedule 3—Transitional provisions

Clause 1 provides a transitional provision that provides that members who were deployed on Operation LILIA, and performed duty in the specified area between 25 November 2021 and the commencement of this Determination are eligible for AUD 93.69, being the amount payable under item 1 of Schedule 2 for each day of duty they performed on Operation LILIA.

Annex B

 Defence Determination, Conditions of service Amendment Determination 2022 (No. 7)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the Determination

The Purpose of this Determination is to do the following:

• To extend the payment of the Operation COVID-19 ASSIST allowance to former members and to members who have died and to set the day from which it is payable to members.
• Include Operation LILIA as a new operation for the payment of deployment allowance, and to provide a transitional provision for members deployed on Operation LILIA between 25 November 2021 and the commencement of Schedules 2 and 3 of this Determination.

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.

Assessment of compatibility

Schedule 1 is compatible with human rights in that it extends an additional remuneration payment, by way of an allowance, to former members and members who have died. The allowance is in response to the unique situation that COVID-19 presents.

Schedules 2 and 3: Defence requires its members to perform duty in overseas locations which are areas of military conflict, and therefore provides additional benefits, beyond the normal overseas conditions of service. Deployment allowance advances just and favourable conditions of work by helping to financially compensate members for the conditions they encounter while on deployment.

Conclusion

This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.