EXPLANATORY STATEMENT
Defence Determination, Individual Payment Determination 2021 (No. 2)
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 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.
The purpose of this Determination is to provide a one-off payment to a member of the Australian Defence Force (ADF) in recognition of the value of the work performed by the member while acting in a senior leadership position which was at a higher rank. The position is an essential senior leadership position that enables the provision of a range of ADF capabilities and support services which contribute to Defence capability and preparedness.
The payment is equal to the amount that would have been paid under Defence Determination 2016/19, Conditions of service, Chapter 4 Part 2, Higher duties allowance, between 5 October 2020 and 12 May 2021, had the allowance been payable to the member.
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 to be paid to the member of the ADF and the employee identification number they hold.
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. 2)
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 one-off payment to a member of the Australian Defence Force (ADF) in recognition of the value of the work performed by the member while acting in a senior leadership position which was at a higher rank. The position is an essential senior leadership position that enables the provision of a range of ADF capabilities and support services which contribute to Defence capability and preparedness.
Human rights implications
Right to the enjoyment of just and favourable conditions of work
The protection of a person's right to remuneration engages Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7 guarantees just and favourable conditions of work, including remuneration, safe and healthy conditions, equal opportunity and reasonable limitations.
This Determination is compatible with human rights in that it provides a one-off payment to a member to recognise the value of the work performed by the member when acting at a higher rank in a senior leadership position as a condition of service.
Conclusion
This Determination is compatible with human rights as it does not raise any human rights issues.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions
Overview
The Defence Determination, Individual Payment Determination 2021 (No. 2) was enacted to address a specific issue of recognising the value of work performed by a member of the Australian Defence Force (ADF) while acting in a senior leadership position at a higher rank. This determination was made under section 58B of the Defence Act 1903 and is subject to the Legislation Act 2003. The policy objective of this Determination is to provide a one-off payment to the ADF member, ensuring that their contributions to Defence capability and preparedness are acknowledged appropriately. The enactment of this legislation ensures the protection of human rights, particularly the right to just and favourable conditions of work as stipulated in Article 7 of the International Covenant on Economic, Social and Cultural Rights.
Scope and Application
The Defence Determination, Individual Payment Determination 2021 (No. 2) applies to a member of the Australian Defence Force (ADF) who has acted in a senior leadership position at a higher rank than their current rank, and provides a one-off payment in recognition of the value of their work. This Determination is made under section 58B of the Defence Act 1903 and is subject to the interpretation principles in the Acts Interpretation Act 1901. The Determination applies only to the individual specified in Section 4 of the Determination, and is not applicable to any other ADF member or entity. The payment is equal to the amount that would have been paid under Defence Determination 2016/19, Conditions of service, Chapter 4 Part 2, Higher duties allowance, between 5 October 2020 and 12 May 2021, had the allowance been payable to the member. The Determination is subject to disallowance under the Legislation Act 2003, and has been found to be compatible with human rights under the Human Rights (Parliamentary Scrutiny) Act 2011. The Determination does not extend or restrict application through subordinate instruments.
Key Provisions
The main operative sections of the Defence Determination, Individual Payment Determination 2021 (No. 2) include Section 2, which sets the commencement date of the Determination, and Section 4, which specifies the amount to be paid to the member of the Australian Defence Force (ADF) and their employee identification number. The purpose of this Determination is to provide a one-off payment to a member of the ADF in recognition of the value of the work performed by the member while acting in a senior leadership position at a higher rank. The payment amount is equivalent to the amount that would have been paid under Defence Determination 2016/19, Conditions of service, Chapter 4 Part 2, Higher duties allowance, between 5 October 2020 and 12 May 2021, had the allowance been payable to the member.
The Determination imposes obligations on the relevant parties, primarily to ensure that the payment is made to the specified member of the ADF as outlined in Section 4. It is essential that the payment is accurately calculated and disbursed according to the guidelines provided in the Determination. Additionally, the Determination must be implemented in accordance with the Defence Act 1903 and the Acts Interpretation Act 1901 (AI Act), which provide the legislative framework and interpretation principles for this instrument.
There are no specific offences, penalties, or civil/criminal consequences outlined in the Determination itself. However, breaches of the Defence Act 1903 or the Acts Interpretation Act 1901 may result in penalties as prescribed by those Acts. The Determination is a disallowable legislative instrument subject to the Legislation Act 2003, which provides for review and disallowance procedures in the event of non-compliance with the requirements of the Determination or the underlying legislation. The absence of explicit penalties in the Determination suggests that adherence to the legislative framework and the terms of the Determination is crucial to avoid any potential legal consequences.