EXPLANATORY STATEMENT

Defence Determination, Force Commander, Multinational Force and Observers – supporting benefits Amendment Determination 2018

This Determination amends Defence Determination 2016/36, Force Commander, Multinational Force and Observers – supporting benefits (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.

The Multinational Force and Observers (MFO) is an international organisation that has peacekeeping responsibilities in the Sinai. The Force Commander of the MFO (FCMFO) has the responsibility of the international military contingents of the MFO, and maintains the good order of the MFO Force. In March 2017, MAJGEN Simon Stuart commenced a two year appointment as FCMFO; this appointment has been extended to three years and is now due to end on 2 December 2019. MAJGEN Stuart's appointment as FCMFO provides the opportunity for Australia to positively affect the security environment in the Sinai.

Under the terms of the appointment, MAJGEN Stuart, as the FCMFO, is required to observe the principles of strict neutrality and can neither seek nor receive operational instructions from the ADF. Consistent with this, his remuneration and appointment related expenses will be provided by the MFO. The ADF is not to provide any benefit that is, or may be reasonably construed as, a salary and/or an explicit appointment related benefit.

The Principal Determination provides a package of benefits to MAJGEN Simon Stuart ('the member') that enables him to support his family in Rome, Italy, during his appointment as the FCMFO in the Sinai. The intent of the conditions of service package is to allow the member to maintain contact with his family, which may be compromised by periods of prolonged absence, and not suffer a financial disadvantage as a result of his appointment.

This Determination has the following purposes.

• It extends the cessation date of the Principal Determination until 31 December 2019.
• It includes additional support allowance payments for the extended period.

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.

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 – Amendments

Section 1 amends subsection 2.2 of the Principal Determination, which provides the date that the determination ceases. The appointment of MAJGEN Stuart as the FCMFO has been extended for a further year and is now due to end on 2 December 2019. This determination amends the cessation date of the Principal Determination to extend the period that supporting benefits will be provided until 31 December 2019. The date of 31 December 2019 will allow MAJGEN Stuart and his family time to return to Australia after the appointment and before the member's next posting.

Section 2 amends the table in subsection 16.2 of the Principal Determination, which provides the rates of support allowance payable. The table has been amended to include three new payments of support allowance during the extended appointment period. This allowance has been calculated to compensate for reasonable costs that the member would have been eligible for, if the member was on an accompanied long-term overseas posting.

Consultation

Personnel Branch, Army Headquarters was consulted in the development of this Determination. The rulemaker 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, Force Commander, Multinational Force and Observers – supporting benefits Amendment Determination 2018

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 Multinational Force and Observers (MFO) is an international organisation that has peacekeeping responsibilities in the Sinai. The Force Commander of the MFO (FCMFO) has the responsibility of the international military contingents of the MFO, and maintains the good order of the MFO Force. In March 2017, MAJGEN Simon Stuart commenced a two year appointment as FCMFO; this appointment has been extended to three years and is now due to end on 2 December 2019. MAJGEN Stuart's appointment as FCMFO provides the opportunity for Australia to positively affect the security environment in the Sinai.

Under the terms of the appointment, MAJGEN Stuart, as the FCMFO, is required to observe the principles of strict neutrality and can neither seek nor receive operational instructions from the ADF. Consistent with this, his remuneration and appointment related expenses will be provided by the MFO. The ADF is not to provide any benefit that is, or may be reasonably construed as, a salary or an explicit appointment related benefit.

The Principal Determination provides a package of benefits to MAJGEN Stuart ('the member') that enables him to support his family in Rome, Italy, during his appointment as the FCMFO in the Sinai. The intent of the conditions of service package is to allow the member to maintain contact with his family, which may be compromised by periods of prolonged absence, and not suffer a financial disadvantage as a result of his appointment.

This Determination has the following purposes.

• It extends the cessation date of the Principal Determination until 31 December 2019.
• It includes additional support allowance payments for the extended period.

Human rights implications

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.

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 guarantees the right to an adequate standard of living for a family, including the continuous improvement of living conditions.

Legitimate objective: During MAJGEN Stuart's appointment he is based in the Sinai, with some time spent in Rome, Italy, where the MFO headquarters are based. A home in the Sinai has been provided by the MFO for the member to use during his appointment, and while the home is a suitable residence for the member and his dependants, it is recommended that the member's family not reside in the Sinai. No benefits are provided by the MFO in relation to the member's family.

Reasonable, necessary and proportionate: This Determination extends the application period of the Principal Determination which assists MAJGEN Stuart maintain regular contact with his family, who are located in Rome, Italy, for the duration of his appointment with the MFO. It also provides additional payments of support allowance during the extended period to ensure that the member is not financially disadvantaged during the period of his appointment as FCMFO.

The Principal Determination provides a package of benefits which allows the member to locate his dependants in Rome and provides assistance with travel, accommodation, education and medical expenses with minimal to no cost to the member. The provision of support allowance assists in off-setting other benefits that an accompanied member on long-term overseas posting would receive under Defence Determination 2016/19, Conditions of service, which is the determination that sets out the financial conditions of service for members of the ADF.

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.

General Angus John Campbell, Chief of the Defence Force