This Determination is made under section 58B of the Defence Act 1903 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 Defence Determination 2016/19, Conditions of service, which is incorporated into this instrument as in force from time to time.
The United Nations Truce Supervision Organization (UNTSO) is a group of military observers in the Middle East who monitor ceasefires, supervise armistice agreements, prevent isolated incidents from escalating and assist other United Nations peacekeeping operations in the region. Australia was offered the opportunity to fill the Deputy Chief of Staff (DCOS) UNTSO position. The position of DCOS is a Deputy Command appointment with a focus on operations within the region and COL Michael Scott ("the member") will commence his two year appointment as DCOS in June 2019.
During the period of the appointment the member will be on an accompanied long-term overseas posting to Israel and will continue to receive benefits provided by the Australian Defence Force (ADF) under Defence Determination 2016/19, Conditions of service.
While appointed as DCOS the member will be assigned by UNTSO to Operation PALADIN, which is an ADF non-warlike operation. When a member is assigned to an ADF operation, their long-term overseas posting benefits no longer apply and the member would receive deployment conditions of service.
The purpose of this Determination is to amend the conditions of service benefits provided under Defence Determination 2016/19, Conditions of service, to provide that the deployment conditions of service under Chapter 17 Part 7 do not apply to the member during any period that the member is assigned to Operation PALADIN. This will ensure the long-term overseas posting benefits for an accompanied member will continue to apply.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on the day after registration. This section also provides that the instrument ceases on 1 August 2021.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
Section 4 specifies that this instrument applies to Colonel Michael Scott who holds the employee number of 8228363. The employee number is a unique identification number which enables Defence to recognise and ensure that the benefits provided under this instrument are specific to the relevant number.
Section 5 provides definitions for terms that are used within this instrument.
Section 6 provides that the purpose of this instrument is to amend the benefits for which the member is eligible under Defence Determination 2016/19, Conditions of service, during the member's appointment as DCOS UNTSO.
Section 7 provides that Chapter 17 Part 7, Allowances and leave for member's on warlike and non-warlike deployments of Defence Determination 2016/19, Conditions of service, does not apply to the member for any period that the member is assigned to Operation PALADIN during the member's appointment as DCOS UNTSO.
Consultation
Director General Military Strategic Commitments, Director General Operations Headquarters Joint Operations Command and Director General Land (Army) were consulted during the drafting of this instrument.
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 United Nations Truce Supervision Organization (UNTSO) is a group of military observers in the Middle East who monitor ceasefires, supervise armistice agreements, prevent isolated incidents from escalating and assist other United Nations peacekeeping operations in the region. Australia was offered the opportunity to fill the Deputy Chief of Staff (DCOS) UNTSO position. The position of DCOS is a Deputy Command appointment with a focus on operations within the region and COL Michael Scott ("the member") will commence his two year appointment as DCOS in June 2019.
During the period of the appointment the member will be on an accompanied long-term overseas posting to Israel and will continue to receive benefits provided by the ADF under Defence Determination 2016/19, Conditions of service.
While appointed as DCOS the member will be assigned by UNTSO to Operation PALADIN, which is an ADF non-warlike operation. When a member is assigned to an ADF operation, their long-term overseas posting benefits no longer apply and the member would receive deployment conditions of service.
The purpose of this Determination is to amend the conditions of service benefits provided under Defence Determination 2016/19, Conditions of service, to provide that deployment conditions of service under Chapter 17 Part 7 do not apply to the member during any period that the member is assigned to Operation PALADIN. This will ensure the long-term overseas posting benefits for an accompanied member will continue to apply.
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.
Right to the protection and assistance to the family
The protection of a person's right to family protection and assistance engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance be accorded to the family, particularly while it is responsible for the care and education of dependent children.
Legitimate objective: During COL Scott's appointment as DCOS UNTSO he will be on an accompanied long-term overseas posting to Israel. The member will be accompanied by his spouse and the member's dependent children will remain in Australia. During the member's appointment he will be assigned for duty with Operation PALADIN. However, this instrument provides that the member will not be eligible for deployment conditions of service that he would normally be eligible for when assigned for duty to an operation.
Reasonable, necessary and proportionate: To assist COL Scott to retain long-term overseas posting conditions of service during his appointment, this instrument provides that the deployment benefits under Chapter 17 Part 7 do not apply to the member during any period that the member is assigned for duty with Operation PALADIN. By turning off these provisions the member will retain the long-term overseas posting benefits which include housing and allowances in Israel for the member's spouse, and reunion travel for the member's dependants to visit COL Scott during his appointment.
Although the member will not receive the deployment benefits provided to a member on overseas deployment, the ability for the member to retain the long-term overseas posting benefits will assist the member and his family to maintain regular contact which may be compromised by periods of prolonged absence if the benefits were not provided.
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