EXPLANATORY STATEMENT
Defence Determination, Individual Assistance for Attendance at a Coronial Inquest Determination 2021
This Determination is 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 AI Act, as modified by section 58B of the Defence Act.
The purpose of this Determination is to provide a payment to the parents of a member of the Australian Defence Force (ADF) who are granted leave to appear at a coronial inquest in recognition of the reasonable expenses of travel and legal representation that they incur in connection with that process. Defence has generally well developed processes for supporting the families of members who become injured or deceased while serving. However, in the specific circumstances of this individual case, Defence has undertaken to provide financial assistance so that the parents are supported to participate in the process arising out of the member’s death.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 is the commencement provision for the Determination and provides that the whole of this Determination commences on the day after registration.
Section 3 provides that this instrument has authority under section 58B of the Defence Act 1903.
Section 4 specifies that the substantive provisions that authorise the benefit are set out in the Schedules.
Schedule 1—Benefit
Section 1 provides definitions that apply in this Determination, including the following:
- Coronial inquest – identifies the coronial inquest to which this Determination relates.
- Decision maker – identifies the person who is able to make decisions under this Determination.
- Eligible person – includes a parent of the member of the ADF who is the subject of the coronial inquest.
Section 2 provides benefits relating to travel and accommodation that are available to an eligible person and the conditions that apply to the granting of those benefits. The benefits cover travel, accommodation, and the costs of meals and incidental expenses, and apply to expenses incurred on or after 1 September 2020. There are limits placed on the amount that an eligible person can receive under this section. They are not eligible to receive more than what would be available to a member of the ADF undertaking duty travel who holds a rank of Colonel or lower.
Section 3 provides benefits to an eligible person relating to the costs of legal advice and representation in connection with the coronial inquest. An eligible person is eligible to receive the cost of legal advice and representation received on or after 1 September 2020 for the purpose of the coronial inquest if the decision maker is satisfied that the costs are reasonable. In deciding whether the costs are reasonable, the decision maker must consider guidance provided by the Office of Legal Services Coordination and Commonwealth Legal Financial Assistance Schemes Assessment of Costs dated July 2012, published by the Attorney General’s Department. A benefit cannot be paid for legal advice and representation that relates to any other legal matter.
Section 4 permits a benefit provided under this Determination to be paid to the eligible person or to the service provider, such as the accommodation provider or legal representative.
Schedule 2—Repeals
Section 1 repeals this Determination on 1 April 2022.
This Determination is not subject to any inquiry under the ADF redress of grievance system, however, a person may make a complaint about the administration of the Determination to the Defence Force Ombudsman.
Consultation
The Australian Defence Headquarters and Chief Finance Officer Groups were consulted and agreed to the payment provided by this Determination. No external consultation was undertaken in accordance with section 17 of the Legislation Act 2003 as the determination is beneficial to the affected persons and does not alter existing arrangements for others.
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, Individual Assistance for Attendance at a Coronial Inquest Determination 2021
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 purpose of this Determination is to provide a payment to the parents of a member of the Australian Defence Force in recognition of certain expenses incurred as a result of their attendance at a Coronial Inquest into the member’s death. Defence has well developed processes for supporting the families of members who become injured or deceased while serving. However, in the specific circumstances of this individual case, Defence has undertaken to provide financial assistance so that the parents are supported to participate in the process arising out of the member’s death.
Human rights implications
This Determination does not engage any applicable rights or freedoms.
Conclusion
This Determination is compatible with human rights it does not engage any applicable human rights or freedoms.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions