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 15 of the Principal Determination sets out provisions dealing with benefits for members of the Australian Defence Force (ADF) who are posted to an overseas location for six months or more.
The purpose of this Determination is to provide the following.
- Establish the Montessori School of Tokyo as an approved Summer school for members who are posted to Japan.
- Provide a benefit to an accompanying spouse or partner of a member of the ADF for foreign language training regardless of when the member was posted overseas.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 13 June 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Amendment to Defence Determination 2016/19, Conditions of Service
Section 1 omits and substitutes item 9 of the table in Annex 15.6.B, which specifies the approved summer schools for Japan. The new item retains the previous schools and inserts a new school, being Montessori School of Tokyo. The name of the Sacred Heart International School is also updated.
Schedule 2 – Foreign language training amendments
Section 1 omits and substitutes the heading to Chapter 15 Part 7 to remove the reference to members posted before 1 July 2017.
Section 2 (first occurring) omits and substitutes section 15.7.1A, which specifies who Part 7 of Chapter 15 of the Principal Determination applies to. The new section ensures that foreign language training can be provided to the spouses and partners of members who are posted overseas for more than six months.
Section 2 (second occurring) omits and substitutes section 15.7.2, which provides two benefits for training for a member's spouse or partner to learn a foreign language. The new section contemporises the language used in the section on a policy neutral basis and ensures that the training is for a language that is commonly used in the posting location.
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 provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.
Consultation
Before this Determination was made, within the Department of Defence consultation was undertaken with the International Policy Division. Outside of the Department of Defence, consultation was undertaken with the Department of Foreign Affairs and Trade.
The rule maker was satisfied that further external consultation was not required
Authority: Section 58B of the
Defence Act 1903
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 provide the following.
- Establish the Montessori School of Tokyo as an approved Summer school for members who are posted to Japan.
- Provide a benefit to an accompanying spouse or partner of a member of the ADF for foreign language training regardless of when the member was posted overseas.
Human rights implications
Right to an adequate standard of living
The protection of a person's right to an adequate standard of living engages Article 11 of the International Covenant on Economic, Social and Cultural Rights. Article 11 recognises the right of everyone to an adequate standard of living for them and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
Legitimate objective: Members of the ADF and their families are posted for extended periods to overseas locations where summer school programs are not available at a comparable cost to those in Australia and English is not the generally spoken language.
Reasonable necessary and proportionate: This Determination provides benefits to, and on behalf of, members’ families to enable them to better participate in the social and cultural activities in posting locations overseas to ensure that members and their families can maintain an adequate standard of living in accordance with Article 11.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Louise Judith Memmolo, Acting Assistant Secretary People Policy and Employment Conditions