Defence Determination, Conditions of service (Reserve allowance – transitional provisions) Determination 2020 (No. 27)

Overview

The Defence Determination, Conditions of service (Reserve allowances – transitional provision) Determination 2020 (No. 27) was enacted under the authority of the Defence Act 1903 and the Acts Interpretation Act 1901. This legislation was introduced to address a specific issue identified in the Defence Determination, Conditions of service Amendment Determination 2020 (No. 13), specifically the incorrect referencing of transitional provisions which rendered them ineffective. The problem arose due to a typographical error in the schedule references, leading to the transitional provisions failing to provide any benefit to the members affected by the amendments to reserve allowances. This Determination, made by Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions, aims to correct this oversight by providing the necessary transitional provisions that align with the intended changes to reserve allowances. The policy objective is to ensure that the amendments to reserve allowances do not adversely affect the members' entitlements, thereby maintaining fairness and consistency in the application of these provisions. This Determination was enacted by the Australian government and is subject to the disallowance provisions under the Legislation Act 2003 and the interpretation principles outlined in the Acts Interpretation Act 1901. The primary goal of this legislation is to rectify the error in the transitional provisions related to reserve allowances, ensuring that the benefits are correctly applied to the affected members. This technical correction was deemed necessary to uphold the integrity of the Defence Determination and to prevent any unintended disadvantages to the members who were impacted by the previous amendments. The human rights implications of this Determination were assessed and found to be negligible, as it does not engage with any applicable rights or freedoms. Consequently, this Determination is considered compatible with human rights.

Scope and Application

The Defence Determination, Conditions of service (Reserve allowances – transitional provision) Determination 2020 (No. 27) applies to members of the Australian Defence Force who were affected by the erroneous transitional provisions outlined in Defence Determination, Conditions of service Amendment Determination 2020 (No. 13). Specifically, it addresses the issue where the transitional provisions under Schedule 8 of the earlier determination referenced incorrect schedule changes, rendering them ineffective. This Determination is made under section 58B of the Defence Act 1903 and is subject to the Acts Interpretation Act 1901. It aims to rectify the earlier error by providing proper transitional provisions for reserve allowances, ensuring that affected members receive the benefits they would have been entitled to under the correct schedule. The Determination is applicable nationally and will have effect as a legislative instrument once registered under the Legislation Act 2003. There are no exclusions or exemptions specified in this Determination, which extends its application to all members affected by the earlier erroneous provisions.

Key Provisions

The primary sections of this Determination (sections 1 to 3) establish the manner in which the Determination may be cited, the commencement date, and the authority under which it is made. Schedule 1 outlines the revised transitional provisions for changes to reserve allowances. Specifically, section 1 of Schedule 1 defines key terms, such as "the Determination" and "Determination 2020 (No. 13)". Section 2 ensures that members who become eligible for the Reserve Capability bonus due to changes in Determination 2020 (No. 13) start their 12-month eligibility period from the date they would have been eligible under the corrected schedule. Section 3 provides that members who were ineligible for the health support allowance in the 2019/20 financial year, but would have been eligible under the corrected schedule, receive a payment equivalent to the health support allowance. This ensures continuity and fairness in the application of the allowances. The Determination imposes specific obligations on members of the defence force who are affected by the changes to reserve allowances. Members who become eligible for the Reserve Capability bonus must ensure that their 12-month eligibility period is calculated correctly, as outlined in section 2 of Schedule 1. Similarly, members who would have been eligible for the health support allowance in the 2019/20 financial year but were previously ineligible must verify their eligibility under section 3 of Schedule 1 to receive the equivalent payment. These obligations are designed to ensure that the transitional provisions benefit those members who are affected by the earlier errors in the Determination 2020 (No. 13). There are no explicit offences, penalties, or consequences for breach stated in this Determination. However, the failure to correctly apply the transitional provisions could result in members not receiving the benefits to which they are entitled under the corrected schedule. This could potentially lead to disputes or claims for retrospective payments if the provisions are not properly implemented. The Determination itself does not specify any maximum penalties for non-compliance but highlights the importance of ensuring that the transitional provisions are correctly applied to avoid any detrimental effects on affected members.