EXPLANATORY STATEMENT
Defence Determination, Individual Payment Determination 2021 (No. 1)
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 (AI 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.
The purpose of this Determination is to provide a payment to the ex-partner of a former member of the Australian Defence Force. The payment is being made as a consequence of the extraordinary circumstances faced by the family and is an extension of the existing condition of service benefits provided under Defence Determination 2016/19, Conditions of service, as amended from time to time, relating to the breakdown of a relationship.
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 it is registered on the Federal Register of Legislation.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
Section 4 provides the amount which is to be paid to the ex-partner of the former ADF member and the employee identification which they held.
Consultation
The relevant Service and Defence Legal 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 does not alter existing arrangements.
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 Payment Determination 2021 (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
This Determination is to provide a payment to the ex-partner of a former member of the Australian Defence Force. The payment being made is a consequence of the extraordinary circumstances face by the family and is an extension of the condition of service benefits provided under Defence Determination 2016/19, Conditions of service, as amended from time to time, relating to the breakdown of a relationship.
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 recognises the right of everyone to an adequate standard of living for them and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
This Determination provides a payment to ensure the beneficiaries’ right to an adequate standard of living in the extraordinary circumstances faced, relating to the breakdown of a relationship.
Human rights implications
This Determination is compatible with human rights because it advances the protection of human rights.
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
Overview
The Defence Determination, Individual Payment Determination 2021 (No. 1) was enacted to address the need for financial support for the ex-partners of former Australian Defence Force (ADF) members under extraordinary circumstances, such as the breakdown of a relationship. This Determination was made under section 58B of the Defence Act 1903 and aligns with the interpretation principles outlined in the Acts Interpretation Act 1901. The primary objective is to extend existing condition of service benefits and provide an adequate standard of living for beneficiaries. This legislation was developed in consultation with the relevant Defence and Service Legal authorities and is compatible with human rights, particularly the right to an adequate standard of living as articulated in Article 11 of the International Covenant on Economic, Social and Cultural Rights. The payment is a legislative instrument subject to disallowance and the provisions of the Legislation Act 2003.
Scope and Application
The Defence Determination, Individual Payment Determination 2021 (No. 1) applies to ex-partners of former members of the Australian Defence Force (ADF). The payment is an extension of the existing condition of service benefits provided under Defence Determination 2016/19, Conditions of service, as amended from time to time, and is made as a consequence of extraordinary circumstances faced by the family due to the breakdown of a relationship. The Determination is made under section 58B of the Defence Act 1903 and is a disallowable legislative instrument subject to the Legislation Act 2003. It applies nationally as it is a Commonwealth instrument. The Determination is compatible with human rights as it protects the beneficiaries’ right to an adequate standard of living in the extraordinary circumstances faced. The amount of the payment is specified in section 4 of the Determination. No external consultation was undertaken as the determination does not alter existing arrangements.
Key Provisions
The Defence Determination, Individual Payment Determination 2021 (No. 1) (the Determination) is established under section 58B of the Defence Act 1903. It is designed to provide a payment to the ex-partner of a former member of the Australian Defence Force due to the extraordinary circumstances faced by the family as a consequence of the breakdown of their relationship. Section 4 of the Determination specifies the amount of the payment and the employee identification number of the former ADF member. The Determination also provides for the payment to be an extension of the existing condition of service benefits under Defence Determination 2016/19, Conditions of service, as amended.
The Determination imposes specific obligations on the relevant parties, primarily the Defence Force and the ex-partner of the former ADF member. Section 3 of the Determination indicates that the payment is to be made in accordance with the provisions set forth within it. Additionally, Section 2 provides that the Determination takes effect on the day after it is registered on the Federal Register of Legislation, which necessitates that all involved parties comply with the terms and conditions of the Determination from that date onwards. The Defence Force is responsible for ensuring that the payment is made to the ex-partner as specified, while the ex-partner must meet any criteria necessary to be eligible for the payment.
Failure to comply with the provisions of this Determination may result in legal consequences. Although the Determination does not explicitly list specific offences or penalties, it is a legislative instrument subject to the Legislation Act 2003. Non-compliance with legislative instruments can lead to civil or criminal penalties, as outlined under the relevant legislation. The maximum penalties for breaches of legislative instruments can vary, but typically include fines and, in severe cases, imprisonment. Given that the Determination is a disallowable legislative instrument, any failure to adhere to its requirements could potentially be subject to disallowance by Parliament, thereby invalidating the Determination unless it is subsequently approved.
The Determination has been reviewed for compatibility with human rights, as required by the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement of Compatibility with Human Rights confirms that the Determination advances the protection of human rights, specifically addressing the right to an adequate standard of living under Article 11 of the International Covenant on Economic, Social and Cultural Rights. By providing a payment to the ex-partner of a former ADF member, the Determination ensures that the beneficiaries' right to an adequate standard of living is protected in the context of the extraordinary circumstances faced due to the breakdown of their relationship. This aligns with the overarching objective of the Determination to provide financial support and stability during a challenging period.