EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Special benefit payment) Determination 2019 (No. 11)

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.

The Determination makes references to sections of the Defence Act and the Defence Regulation 2016 (the Defence Regulation). These instruments are incorporated into the Determination as in force from time to time. Section 1.2.5A of the Principal Determination specifies that a reference to an Act of Parliament or a legislative instrument to which section 14(3) of the AIA Act applies are incorporated as in force from time to time, unless otherwise stated.

Chapter 2 Part 3 Division 3 of the Principal Determination sets out provisions dealing with the payment of a special benefit to members of the Australian Defence Force who are compulsorily transferred from the Permanent Forces to the Reserves under section 16 of the Defence Regulation for workforce planning reasons.

The purpose of this Determination is to broaden the scope for making a payment of a special benefit to a member of the Permanent Force who is compulsorily transferred to the Reserves under section 16 of the Defence Regulation and to insert an additional discretionary ground of eligibility for the special benefit into Principal Determination. Combined, these amendments provide the Chief of the Defence Force greater flexibility when deciding whether a payment of a special benefit to a member is warranted.

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

Section 2 provides that this instrument commences a date set by notifiable instrument signed by the Associate Secretary People Policy and Employment Conditions.

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Amendment to Defence Determination 2016/19, Conditions of Service

Section 1 omits and substitutes section 2.3.20 of the Principal Determination, which sets out the purpose of the special benefit payment available under Chapter 2 Part 3 Division 3 of the Principal Determination. The amendment is made to remove references to the previous limitations of the special benefit payment.

Section 2 omits and substitutes section 2.3.22 of the Principal Determination, which sets the eligibility criteria for a member to be paid the special benefit. To provide greater flexibility, the amendment provides two eligibility criteria: the first being for transfers made for workforce planning purposes; the second provides a new eligibility criteria for the payment to be made to members who are transferred to the reserves for reasons other than workforce planning purposes.

Eligibility for the special benefit under the workforce planning criteria is subject to subsections 2 and 3, which largely reflect the eligibility requirements that currently exist. The payment of the special benefit is an automatic consequence of the member satisfying these criteria.

Eligibility for the special benefit under the criteria of reasons other than workforce planning requires the Chief of the Defence Force to be satisfied that the payment is reasonable in the circumstances. The requirements of subsection 2 and 3 do not apply to eligibility for the special benefit under the criteria of reasons other than workforce planning.

The payment of the benefit is to be limited by the requirement for the Chief of the Defence Force to be satisfied that payment of the benefit is reasonable in the circumstances. In considering whether payment of the special benefit is reasonable, the CDF must have regard to specific elements of the member’s service history, including the member’s period of services. Consideration of the member’s period of service includes how long the member has served in the ADF and the amount of time remaining in the member’s period of service.

Schedule 2 – Transitional

Section 1 provides a transitional provision that a member who was eligible to be paid a special benefit and had not received the special benefit before the commencement of this Determination continues to be eligible for the special benefit.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Consultation

Before this Determination was made, consultation was undertaken with the Office of the Chief of the Defence Force, Navy, Army and Air Force. The rule maker was satisfied that further 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 (Special benefit payment) Determination 2019 (No. 11)

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 the special benefit payment made under Chapter 2 Part 3 Division 2 of the Principal Determination. The amendment broadens the scope for making a payment of a special benefit to a member of the Permanent Force who is compulsorily transferred to the Reserves under section 16 of the Defence Regulation and to insert an additional discretionary ground of eligibility for the special benefit into Principal Determination. Combined, these amendments provide the Chief of the Defence Force greater flexibility when deciding whether a payment of a special benefit to a member is warranted.

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 provides for greater flexibility to pay a special benefit to members of the Permanent Forces who are compulsorily transferred to the Reserves to ensure that they receive just and favourable remuneration in accordance with Article 7.

This Determination promotes Article 7 of the International Covenant on Economic, Social and Cultural Rights by removing provisions that limit the payment of the special benefit to members who have been transferred to the Reserves for workforce planning reasons under section 16 of the Defence Regulation 2016. In its place, the Chief of the Defence Force is require to consider whether it is reasonable to make the payment of a special benefit to a member on a case-by-case basis.

Conclusion

This Determination is compatible with human rights because it advances the protection of human rights.

General Angus J. Campbell, AO, DSC, Chief of the Defence Force