Defence Determination, Conditions of Service Amendment (Funerals) Determination 2018 (No. 36)

Administered by Department of Defence

Legislation au F2018L01311 Not in force Legislative Instrument

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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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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

 

 

 

 

Overview

The Defence Determination, Conditions of Service Amendment (Funerals) Determination 2018 (No. 36) was enacted to amend the Defence Determination 2016/19, Conditions of Service, addressing gaps and technical errors in the funeral provisions for members and former members of the Australian Defence Force (ADF). This Determination was made under section 58B of the Defence Act 1903 by the Australian Parliament and aims to ensure that funeral benefits are correctly and comprehensively applied, particularly for certain Air Force members and Chaplains who were previously omitted. The objective of the Determination is to rectify these oversights and provide clarity on the eligibility and scope of funeral benefits, including the removal of a previous cap on floral and non-floral tributes and the extension of funeral provisions to members who die while on short-term duty overseas. This ensures that all eligible ADF members and their families receive the appropriate support and respect in accordance with ADF policies and human rights considerations.

Scope and Application

The Defence Determination, Conditions of Service Amendment (Funerals) Determination 2018 (No. 36) amends the Defence Determination 2016/19, Conditions of service, under the authority of section 58B of the Defence Act 1903. This Determination applies specifically to members of the Australian Defence Force (ADF) and former members, with a focus on modifying the funeral provisions that were initially established under the Principal Determination. The changes are aimed at rectifying oversights and broadening the eligibility for funeral benefits, including the inclusion of retired Air Force members who held a one-star rank or above before 7 May 1999, and Chaplains who were appointed as Principal Air Chaplains before the same date. Additionally, the Determination clarifies and expands the scope of funeral cost provisions to encompass members who die while on short-term duty overseas, thereby ensuring that funeral benefits are more inclusive and equitable. The amendments are designed to better protect the human rights of ADF members and former members by ensuring they receive just and favourable conditions of work, including appropriate funeral benefits.

Key Provisions

The Defence Determination, Conditions of Service Amendment (Funerals) Determination 2018 (No. 36) amends Defence Determination 2016/19, Conditions of Service, under section 58B of the Defence Act 1903. The primary focus of this amendment is on funeral provisions for members and former members of the Australian Defence Force (ADF). Section 11.4.6 is amended to include retired Air Force members who held a one-star rank or above, or were Principal Air Chaplains, before 7 May 1999, who were previously omitted. This ensures that these members are eligible for funeral benefits. Additionally, section 11.4.12 is clarified to remove the $250 limit on floral and non-floral tributes, allowing for full costs to be covered under section 11.4.9.1. Furthermore, section 15.9.2 is amended to include members who die while on short-term duty overseas, making them eligible for funeral costs under Chapter 15 Part 9. This Determination imposes specific obligations on the parties involved. The Australian Defence Force is required to ensure that eligible members and former members receive appropriate funeral benefits. This includes the payment of funeral costs for retired Air Force members who held a one-star rank or above, or were Principal Air Chaplains, before 7 May 1999. The Defence Force must also clarify and remove limitations on the costs of floral and non-floral tributes for funerals. Additionally, the provisions for funeral benefits must be extended to cover members who die while on short-term duty overseas, aligning them with those on long-term postings. The Determination does not explicitly state any specific offences, penalties, or civil/criminal consequences for breaches. However, non-compliance with the funeral provisions could potentially lead to legal disputes regarding the eligibility and amount of benefits owed to eligible members and former members. The Defence Force is required to ensure adherence to these provisions, and failure to do so could result in legal action from affected parties. The exact penalties for non-compliance are not detailed within the Determination itself but would be subject to the general legal principles governing the enforcement of Defence Act provisions.

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