EXPLANATORY STATEMENT

Defence Determination, Force Commander, Multinational Forces and Observers – supporting benefits Amendment Determination 2019 (No. 1)

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. MAJGEN Simon Stuart's appointment as FCMFO is due to end on 2 December 2019.

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 Australian Defence Force (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, 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 provides benefits for the member and his family to return to Australia at the end of the member's appointment.

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 provides that this instrument commences 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Amendment to Defence Determination 2016/36, Force Commander, Multinational Force and Observers – supporting benefits

Sections 1 and 8 to 10 amend the Principal Determination to substitute the position title of Director General Personnel – Army with Director General Army People Capability as a decision-maker.

Section 2 omits and substitutes subsection 11.2 of the Principal Determination, which provides the removal benefits for the member and his dependants on return to Australia to the member's new posting location. Subsection 2 has been amended to provide that the return removal of the dependant's personal effects can be removed to a location in Australia where they are going to live. This will allow for a removal to different locations if the member's dependants choose to return to a different location from the member's new posting location.

Section 3 omits and substitutes subsection 12.2 of the Principal Determination, which provides that on return to Australia the member is eligible for a removal to the member's new posting location in Australia for items that have been put into storage at Commonwealth expense. This provision is being amended to provide that the items can be removed to the member's new posting location or to a location in Australia where the member's dependants are going to live. This will allow for a removal to different locations if the member's dependants choose to return to a different location from the member's new posting location.

Sections 4 and 5 amend section 15 of the Principal Determination which provides the travel benefits for the member and his dependants. The following changes have been made to section 15.

• A new subsection 1A has been inserted to provide that the return travel for the member's dependants can be to a location in Australia where they are going to live. This will allow for travel to different locations if the member's dependants choose to return to a different location from the member's new posting location.
• Subsection 15.2 has been amended to clarify that the rest period that the member may take on return from Rome is for a period of up to 48 hours.
• A new subsection 2A has been inserted to provide accommodation at Commonwealth expense for any overnight rest period that is taken during a stopover on their return to Australia.
• A new subsection 2B has been inserted to provide that for each day of travel on return to Australia the member and his dependants are eligible for EUR 201 for meals and EUR 42 for incidentals per person.
• A new subsection 2C has been inserted to provide that the rate of meal allowance is to be reduced for any meal that have been provided as part of their fare or accommodation tariffs.

Section 6 amends section 16 of the Principal Determination which provides the payment of support allowance. 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. A new table item 13 has been inserted to provide that from 3 December 2019 the member is eligible for the payment of support allowance at the daily rate of AUD 192.88 until the day before member is eligible for settling out allowance, the day before the member and dependants are eligible for travel allowance, or the date that the Principal Determination ceases, whichever is earlier.

Section 7 inserts a new section 18A into the Principal Determination which provides settling out accommodation and allowance for the member and his dependants if they are required to vacate the Commonwealth provided accommodation in Rome. The settling out allowance is payable at a daily rate of EUR 134 for each person staying in the settling out accommodation. This rate is reduced for each meal that is provided as part of the settling out accommodation costs.

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. A person may make a complaint to the Defence Force Ombudsman.

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 Forces and Observers – supporting benefits Amendment 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

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. MAJGEN Simon Stuart's appointment as FCMFO is due to end on 2 December 2019.

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 provides benefits for the member and his family to return to Australia at the end of the member's appointment.

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 provides travel and removal benefits to the member and his family for their return to Australia at the end of his appointment with the MFO. Additional daily payments of support allowance have been included for the period between the end of the member's appointment and the date that they move out of the accommodation in Rome and into any settling out accommodation that may be required. The Determination also provides settling out allowance which is payable during the period that the member and his family are in the settling out accommodation.

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.

Louise Judith Memmolo, Acting Assistant Secretary People Policy and Employment Conditions