EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Utilities and deployment allowance) Determination 2019 (No. 1)
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 7 of the Principal Determination sets out provisions dealing with housing and meals for members of the Australian Defence Force (ADF).
Chapter 17 of the Principal Determination sets out provisions dealing with warlike and non-warlike deployments for members of the ADF.
This Determination has the following purposes.
- To retrospectively change the rate a member may be reimbursed per fortnight for the cost of utilities, which was unintentionally reverted to an earlier rate.
- To reduce the area for which deployment allowance is payable to members deployed on Operation OKRA in line with the Minister for Defence's declaration to remove several countries from the area of operation on 15 November 2018.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that Schedule 1 commences on 29 November 2018 and Schedule 2 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Section 4 provides that each instrument that is specified in a Schedule to this Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Amendment to utilities
Section 1 amends subparagraph 7.10.4.1.b.i of the Principal Determination, which provides the fortnightly amount a member may be reimbursed for the cost of utilities. The rate is increased from $71.32 to $77.67. Defence Determination 2018/15, Flexible service determination, unintentionally reverted the amount to the 2017 rate on 29 November 2018. Schedule 1 therefore commences on this date so that the correct rate is payable for the intended period. The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such person. The rate a member may be reimbursed under the amendment is greater than the current rate.
Schedule 2 – Amendment to deployment allowance
Section 1 omits and substitutes table item 8 of subsection 17.7.6.1 of the Principal Determination, which provides the daily rates of deployment allowance for members deployed on Operation OKRA. Deployment allowance is payable in areas declared by the Minister of Defence as warlike or non-warlike. On 15 November 2018, the Minister reduced the area of Operation OKRA by declaring that Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Montenegro, Poland and Romania are no longer in the area of operation. This Determination removes these countries from the list of countries for which deployment allowance is payable. Members are no longer deployed to these countries and no member has been deployed to these countries since the Minister made the declaration on 15 November 2018.
Consultation
Before this Determination was made, consultation was undertaken with Joint Operations Command and the 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 (Utilities and deployment allowance) Determination 2019 (No. 1)
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 retrospectively change the rate a member may be reimbursed per fortnight for the cost of utilities, which was unintentionally reverted to an earlier rate.
- To reduce the area for which deployment allowance is payable to members deployed on Operation OKRA in line with the Minister for Defence's declaration to remove several countries from the area of operation on 15 November 2018.
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.
Deployment allowance
Legitimate objective: Defence members may be required to perform duty in overseas locations which are areas of military conflict. Defence members who are deployed to some overseas locations will experience adverse conditions during service. These members are compensated for conditions that can include but are not limited to a hazardous environment, stress, extreme climatic conditions, minimal health care facilities and infrastructure, and isolation.
Reasonable, necessary and proportionate: Defence requires its members to perform duty in these locations and therefore provides additional benefits, beyond the normal overseas conditions of service. Deployment allowance helps to financially compensate members for the conditions they encounter while on deployment.
This Determination removes Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Montenegro, Poland and Romania from the list of countries for which deployment allowance is payable to members deployed on Operation OKRA. Members are no longer deployed to these countries and no member has been deployed to these countries since the Minister made the declaration on 15 November 2018.
Utilities
Schedule 1 of this determination retrospectively changes the rate a member may be reimbursed per fortnight for the cost of utilities, which was unintentionally reverted to an earlier rate. It does not engage any applicable human rights or freedoms.
Conclusion
This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Derek Julian Cox, Acting Assistant Secretary People Policy and Employment Conditions