EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Miscellaneous) Determination 2018 (No. 18)
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 5 of the Principal Determination sets out provisions dealing with leave for members of the Australian Defence Force (ADF).
Chapter 7 of the Principal Determination sets out provisions dealing with housing and meals for members of the ADF.
This Determination has the following purposes.
- To amend the title of a section that provides which allowances are payable to a member on a period of long service leave to reflect that the section specifically provides for Defence Force Remuneration Tribunal (DFRT) determined allowances.
- To remove a note that conflicts with the actual rule for when ADF district allowance may be payable to a member on a period of long service leave.
- To align the Principal Determination with DFRT Determination 11 of 2013, ADF Allowances so that a member may be paid DFRT allowances while on recreation leave.
- To remove a section which contained a note and no rule.
- To fix some minor typographical errors.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 3 May 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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.
Section 1 omits subsection 5.4.37.3 of the Principal Determination, which set a limit on the allowances that can be paid to the member under DFRT Determination No. 11 of 2013, ADF Allowances. The provision has been removed from the Principal Determination as it conflicted with the rule set for payment of annual rates and allowances provided in DFRT Determination No 11 of 2013, ADF Allowances. The 58H Determination provides that a member is to be paid the annual rate of an allowance from DFRT Determination No. 11 of 2013, ADF Allowances if they continue to meet relevant eligibility conditions. This section aligns the 58B Determination to the 58H Determination.
Section 2 omits and substitutes the title of section 5.5.23 of the Principal Determination. The Section provides which DFRT allowances are payable to a member on a period of long service leave. The title is amended to refer specifically to DFRT determined allowances.
Section 3 omits the note and examples in section 5.5.23 of the Principal Determination. The section provides which DFRT allowances are payable to a member on a period of long service leave. The note provided that non-DFRT determined allowances may continue to be paid to a member on a period of long service leave. The note has been omitted because it does not belong in a section that provides specifically for DFRT determined allowances. A guidance section will be published on the Defence pay and conditions website at http://www.defence.gov.au/PayAndConditions/default.asp. The guidance will advise readers that allowances under Defence Determination 2016/19, Conditions of service, may be payable to a member on a period of long service leave dependent on the rules for each specific allowance in the relevant Chapter, Part and Division of the Principal Determination.
Section 4 amends subsection 5.10.8.1 of the Principal Determination, which contains a cross reference note to a section providing for "casual meal charges". Section 1 removes "(Meals)" at the end of the reference which is not a part of the section title. It is not helpful to the reader or necessary since "meals" is already in the section title.
Section 5 omits section 7.3.4 of the Principal Determination. The amendment removes the section, containing only two notes for dual entitlement. The section is removed because it duplicated the rule in section 7.3.12. Section 7.3.12 provided for a member the conditions of eligibility for the home purchase assistance scheme. The note also referred to section 1.6.1 of the Principal Determination detailing how and to which member the benefit was provided in circumstances where a member's adult dependant was also a member.
Section 6 amends the note in subsection 7.9.6.4 of the Principal Determination, which made reference to clause 7.9.6. Prior to the Principal Determination, 'sections' were referred to as 'clauses' and this one was inadvertently left unchanged. Section 6 changes the reference to a 'section'.
Consultation
This Determination makes amendment to reduce ambiguity and corrects errors. The changes are technical in nature and 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, Conditions of Service Amendment (Miscellaneous) Determination 2018 (No. 18)
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 has the following purposes.
- To amend the title of a section that provides which allowances are payable to a member on a period of long service leave to reflect that the section specifically provides for Defence Force Remuneration Tribunal (DFRT) determined allowances.
- To remove a note that conflicts with the actual rule for when ADF district allowance may be payable to a member on a period of long service leave.
- To align the Principal Determination with DFRT Determination 11 of 2013, ADF Allowances so that a member may be paid DFRT allowances while on recreation leave.
- To remove a section which contained a note and no rule.
- To fix some minor typographical errors.
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.
This Determination removes determined text that has no legal effect, reduces ambiguity and corrects minor typographical errors to assist people to better understand and apply benefits.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Condition