Defence Determination, Conditions of service Amendment (Star rank increments) Determination 2021 (No. 13)

Administered by Department of Defence

Legislation au F2021L01000 Not in force Legislative Instrument

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Defence Determination, Conditions of service Amendment (Star rank increments) Determination 2021 (No. 13)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AI 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 AI Act.

Chapter 3 of the Principal Determination sets out provisions dealing with salaries and bonuses for members of the Australian Defence Force (ADF).

The purpose of this Determination is to reinstate the salary increment advancement for members holding a rank of Brigadier or higher, or an equivalent rank, which was ceased by Defence Determination, Conditions of service (Star rank increment advancement) Amendment Determination 2020 (No. 12) on 6 August 2020 as part of the whole of Government response to the COVID-19 pandemic. The reinstatement of the salary increment advancement for affected members is consistent with the Government’s approach to salary increases provided to the Senior Executive Service.

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

Section 2 provides that this instrument commences on 5 August 2021.

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 1Star rank amendments

Section 1 amends subsection 3.2.30.1 of the Principal Determination which provides non-specialist members of the ADF with salary related increment advancement. The amendment removes the reference to section 3.2.31, which is removed by section 2 of this Determination.

Section 2 omits section 3.2.31 of the Principal Determination which provides that non-specialist members of the ADF holding a rank of Brigadier or higher, or an equivalent rank, ceased to be eligible for a salary increment advancement after 6 August 2020. The removal of this section reinstates salary increment advancement for non-specialist members of the ADF holding the rank of Brigadier or higher, or an equivalent rank.

Sections 3 and 4 amend section 3.2.41 of the Principal Determination which provides salary increment advancement for Chaplains, Maritime Spiritual Wellbeing Officers and dental officers. Section 3 removes from subsection 3.2.41.1 the references to subsection 3.2.41.1A, which is removed by section 4. The removal of subsection 3.2.41.1A reinstates salary increment advancement for Chaplains or Maritime Spiritual Wellbeing Officers holding a Division 5 classification.

Sections 5 and 6 amend section 3.2.43 of the Principal Determination which provides increment advancement for legal officers. Section 5 removes from subsection 3.2.43.1 the references to subsection 3.2.43.1A, which is removed by section 6. The removal of subsection 3.2.43.1A reinstates salary increment advancement for a legal officer holding a rank of Brigadier or higher.

Schedule 2—Transitional provisions - Star rank increment

Section 1 defines ‘Determination’ for the purpose of this Schedule. It means the Defence Determination 2016/19, Conditions of service, being the Principal Determination, as in force immediately before the commencement of this Schedule.

Section 2 provides that members who were not eligible for salary increment advancement under section 3.2.31, subsection 3.2.41.1A or subsection 3.2.43.1A of the Principal Determination, between 6 August 2020 and the commencement of this schedule, are eligible for increment advancement on the commencement of this Schedule.

Consultation

Before this Determination was made, consultation was undertaken with the Defence Force Remuneration Tribunal, the Chief of the Defence Force, Navy, Army, Air Force and the Directorate of Senior Officer Management in the Department of Defence.

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 (Star rank increments) Determination 2021 (No. 13)

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 reinstate the salary increment advancement for members holding a rank of Brigadier or higher, or an equivalent rank, which was ceased by Defence Determination, Conditions of service (Star rank increment advancement) Amendment Determination 2020 (No. 12) on 6 August 2020 as part of the whole of Government response to the COVID-19 pandemic. The reinstatement of the salary increment advancement for affected members is consistent with the Government’s approach to salary increases provided to the Senior Executive Service.

 

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 promotes the right to just and favourable conditions of work by reinstating salary increment advancement for members who hold a rank of Brigadier or higher, or an equivalent rank. Salary increment advancement recognizes and compensates for member’s increased competence, skills and responsibilities, and this Determination ends the temporarily pause to salary increment advancement that happened as a consequence of the impact of COVID-19 on the economy.

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 Conditions

 

 

 

 

Overview

The Defence Determination, Conditions of service Amendment (Star rank increments) Determination 2021 (No. 13) was enacted to amend Defence Determination 2016/19, Conditions of service, under section 58B of the Defence Act 1903. This Determination was introduced to reinstate salary increment advancements for Australian Defence Force (ADF) members holding the rank of Brigadier or higher, or an equivalent rank, which were temporarily ceased on 6 August 2020 as part of the government's response to the COVID-19 pandemic. The policy objective behind this amendment is to ensure that the salary increment advancements for these high-ranking members are consistent with the increases provided to the Senior Executive Service. The Determination was made by the relevant authority under section 58B of the Defence Act and has been deemed compatible with human rights, specifically promoting the right to just and favourable conditions of work as outlined in Article 7 of the International Covenant on Economic, Social and Cultural Rights.

Scope and Application

The Defence Determination, Conditions of service Amendment (Star rank increments) Determination 2021 (No. 13) applies to members of the Australian Defence Force (ADF) holding a rank of Brigadier or higher, or an equivalent rank. This includes non-specialist members, Chaplains, Maritime Spiritual Wellbeing Officers, and dental officers, as well as legal officers with the specified ranks. The Determination reinstates salary increment advancement for these ranks, which was temporarily ceased by a previous amendment in response to the COVID-19 pandemic. It is a Commonwealth instrument, made under section 58B of the Defence Act 1903, and is subject to disallowance and the interpretation principles of the Acts Interpretation Act 1901. The Determination also includes transitional provisions to ensure affected members are eligible for increment advancement from the commencement of this instrument. The Determination is compatible with human rights, promoting the right to just and favourable conditions of work as recognised in the International Covenant on Economic, Social and Cultural Rights.

Key Provisions

The Defence Determination, Conditions of Service Amendment (Star Rank Increments) Determination 2021 (No. 13) primarily serves to amend the Defence Determination 2016/19, Conditions of Service, as required under section 58B of the Defence Act 1903 (section 3). The determination is structured to reinstate salary increment advancement for members of the Australian Defence Force (ADF) who hold a rank of Brigadier or higher, or an equivalent rank. This reinstatement reverses the cessation of salary increment advancement that was implemented by the Defence Determination, Conditions of Service (Star Rank Increment Advancement) Amendment Determination 2020 (No. 12) on 6 August 2020 due to the government's response to the COVID-19 pandemic. Specifically, the determination amends subsection 3.2.30.1 and removes the reference to section 3.2.31, which reinstates salary increment advancement for non-specialist members of the ADF holding a rank of Brigadier or higher. It also amends sections 3.2.41 and 3.2.43 to reinstate increment advancement for Chaplains, Maritime Spiritual Wellbeing Officers, and legal officers who hold a rank of Brigadier or higher. The obligations and requirements imposed by this Determination on the affected parties are primarily to ensure that the reinstated salary increment advancement is accurately and fairly implemented for eligible members of the ADF. This includes the Defence Force Remuneration Tribunal, the Chief of the Defence Force, and other relevant authorities within the Department of Defence. The determination also mandates that members who were not eligible for salary increment advancement between 6 August 2020 and the commencement of this schedule are eligible for increment advancement on the commencement of this Schedule. Additionally, it stipulates that the determination has authority under section 58B of the Defence Act and outlines the manner in which the specified instruments are amended or repealed as set out in the Schedule. The Determination does not explicitly state any offences, penalties, or civil/criminal consequences for breach; however, non-compliance with the determination could potentially lead to legal ramifications under the Defence Act 1903 and the Acts Interpretation Act 1901. The Defence Act provides for various penalties for breaches, which could include disciplinary action against ADF members or administrative penalties against the relevant authorities. Furthermore, given the disallowable nature of the legislative instrument, any non-compliance could also be subject to review and potential disallowance by the relevant parliamentary committees. The determination assures compatibility with human rights by reinstating salary increment advancement, which aligns with the right to just and favourable conditions of work as protected under international human rights instruments.

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