EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Funerals) Determination 2018 (No. 36)
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.
This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).
- Chapter 11 sets out provisions dealing with assistance available if a member dies or suffers personal injury or disease as a result of their service.
- Chapter 15 sets out provisions dealing with living and working on long-term posting overseas.
The purpose of this Determination is to amend the funeral provisions for members and former members.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 20 September 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 makes amendments to the Principal Determination.
Section 1 amends section 11.4.6 of the Principal Determination which sets out which members, or former members, Chapter 11 Part 6 applies in respect of for the provision of funeral benefits. This section is being amended to include retired Air Force members who either held a one-star rank or above before 7 May 1999 and Chaplains who were appointed as Principal Air Chaplains before 7 May 1999. These members were inadvertently omitted when the funeral provisions were amended by Defence Determination (Funeral costs – amendment) 2018 (No. 4).
Section 2 omits and substitutes section 11.4.12 of the Principal Determination which provides that the CDF may approve costs for floral and non-floral tributes. This section is being amended to clarify that the approval for floral and non-floral tributes at Commonwealth expense is in respect of a member or former member. The former paragraph 11.4.12.1.a provided for the floral and non-floral tributes for commemoration at a funeral and has been removed as this limited the amount payable for these tributes to $250. The removal of the provision allows for the cost of floral and non-floral tributes for a funeral to be paid under section 11.4.9.1.
Section 3 omits and substitutes section 15.9.2 of the Principal Determination which sets out who Chapter 15 Part 9 applies in respect of for the provision of funeral benefits. This section is being amended to include members who die while short-term duty overseas as eligible for funeral costs provided under Chapter 15 Part 9.
Consultation
The Defence Community Organisation and Air Force were consulted in the preparation of this Determination. The rule maker 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, Conditions of Service Amendment (Funerals) Determination 2018 (No. 36)
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 technical amendments to Defence Determination 2016/19, Conditions of service.
The purpose of this Determination is to amend the funeral provisions for members and former members.
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.
Funeral benefits are not a routine condition of service in Australian society. The Commonwealth provides benefits for funeral costs to be paid in respect of an Australian Defence Force (ADF) member or former member. This Determination includes Air Force members who held a one-star rank or above, or who was a Chaplain who was appointed as a Principal Air Chaplain, before 7 May 1999 as eligible for the payment of funeral costs. The determination also removes a limitation on the amount payable for floral and non-floral tributes for a deceased member's or former member's funeral. It also clarifies that the funeral provisions in respect of a member who dies on long-term posting overseas also apply in respect of a member who dies on short-term duty overseas.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Acting Assistant Secretary People Policy and Employment Conditions