EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Stand-down period, post index locations – Israel and summer schools – Vietnam) Determination 2019 (No. 2)
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.
Chapter 5 of the Principal Determination sets out the circumstances in which an ADF member may be absent from duty, including the period of the Christmas stand-down.
Chapter 12 of the Principal Determination sets out an overview of overseas conditions of service for members of the Australian Defence Force (ADF) including key definitions.
Chapter 15 of the Principal Determination sets out the benefits provided to members on long-term postings overseas for the purpose of providing education assistance for their dependants.
The purpose of this Determination is to do the following:
- Amend the stand-down period for the 2019 Christmas period.
- Provide Tel Aviv, Israel, as a new post index location.
- Set a summer school for Vietnam.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 24 January 2019.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 Subsection 5.12.3.1 of the Principal Determination
Section 1 amends subsection 5.12.3.1 of the Principal Determination, which sets the Christmas stand-down periods. The stand-down period for 2019 was incorrectly determined. This Determination corrects the commencement date.
Schedule 2 amends Annex 12.3.B of the Principal Determination
Section 1 inserts a new post index location of Tel Aviv, Israel into Annex 12.3.B of the Principal Determination. The Annex determines which post index will be applied to benefits payable to a member posted overseas. It is applied to a range of overseas benefits.
Schedule 3 amends Annex 15.6.B of the Principal Determination
Section 1 amends Annex 15.6.B of the Principal Determination, which lists the recognised summer schools for which benefits are provided to members. This Determination inserts a new summer school for Vietnam.
Consultation
For the purpose of Schedule 1, the rule maker was satisfied that no external consultation was required as the amendment is of an administrative nature.
For the purpose of Schedule 2, Navy, Army and Air Force were consulted in the preparation of this Determination. The rule maker was satisfied that no further consultation was required.
For the purpose of Schedule 3, within Defence, Strategic Policy and Intelligence Group were consulted in the preparation of this Determination. External to Defence, the Department of Foreign Affairs and Trade were consulted. The rule maker was satisfied that no further consultation was 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 (Stand-down period, post index locations – Israel and summer schools – Vietnam) Determination 2019 (No. 2)
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
The purpose of this Determination is to do the following:
- Amend the stand-down period for the 2019 Christmas period.
- Provide Tel Aviv, Israel, as a new post index location.
- Set a summer school for Vietnam.
Human rights implications
Stand down-period and post indexes
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.
Legitimate objective: Members of the ADF are required to render service on a 24/7 basis. Subject to operational requirements, the stand-down period provides members with a period of absence over the Christmas and New Year to rest and recuperate.
Defence members are posted to perform duty in overseas locations. This could cause the member and their family economic hardship if the location has a high cost of living. The purpose of a post index is to show the relative cost of living at a posting location compared with Australia. This is then used to adjust various overseas benefits.
Reasonable, necessary and proportionate: This Determination provides the stand-down period for 2019. This ensures that the member has the opportunity to rest and recuperate over the Christmas and New Year period.
The Determination specifies a post index location for Israel for members posted to locations outside of those for which specific indices are provided. This ensures that a member's salary and some allowances are adjusted to meet the increased cost of living in those locations.
Summer schools
The protection of a child’s right to education engages Article 28 of the Convention on the Rights of the Child. Article 28 recognises the right of a child to education.
Legitimate objective: Defence members are posted to perform duty in overseas locations where they may be accompanied by their families. The cost and availability of education facilities for their dependent children at a similar standard to that provided in Australia. This Determination ensures that children who accompany members on a long term posting to an overseas location have access to education facilities similar to those in Australia.
Reasonable, necessary and proportionate: This Determination specifies a summer school for Vietnam. This ensures that a member's children are able to attend a summer school in Vietnam.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Derek Julian Cox, Acting Assistant Secretary People Policy and Employment Conditions