EXPLANATORY STATEMENT
Defence Determination (National day of mourning – Public holiday) Determination 2022
This Determination is made under section 58B of the Defence Act 1903 (Defence Act) 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.
Purpose
The purpose of this Determination is to provide members on a long‑term posting overseas with short absence for an additional public holiday for the national day of mourning following the death of Her Majesty The Queen.
Operational Details
Details of the operation of the Determination are provided at annex A.
This determination references the Defence Determination 2016/19, Conditions of service. Any reference to that determination are incorporated as in force from time to time.
Human rights compatibility
The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.
Review options
Decisions that are made under this Determination, may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.
Consultation
Before this Determination was made, consultation was undertaken with the Directorate of Overseas and Housing Policy and the Department of Foreign Affairs and Trade.
The rule maker was satisfied that further consultation was not required.
Approved by: | Fiona Louise McSpeerin Assistant Secretary People Policy and Employment Conditions
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Authority: | Section 58B of the |
Annex A
Defence Determination (National day of mourning – Public holiday) Determination 2022
Operational details
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this Determination commences on the day after registration.
Section 3 provides that this Determination has authority under section 58B of the Defence Act.
Section 4 provides the purpose of this Determination.
Section 5 provides the definitions used in this Determination, which include: Defence determination meaning the Defence Determination 2016/19, Conditions of service, as in force from time to time, and specifies who the decision‑maker is for the purpose of exercising the discretionary power under this Determination in determining which day under subsection 7.1 of this Determination the member may observe the public holiday. Other definitions incorporate terms from Defence Determination 2016/19, Conditions of service, as in force from time to time.
Section 6 provides that this Determination applies to a member on a long-term posting overseas.
Section 7 provides a member with short absence for an additional public holiday so that they may observe Australia’s national day of mourning at their posting location to mourn the death of Her Majesty The Queen, or a day that is a public holiday provided for the same purpose. If a member is required to attend for duty on that day, the decision‑maker may approve a different day for the member to take the short leave.
Section 8 provides that the public holiday under this Determination is not counted as a public holiday for the purpose of subsection 15.1.10.1 of the Defence Determination 2016/19, Conditions of service, as in force from time to time.
Annex B
Defence Determination (National day of mourning – Public holiday) Determination 2022
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Overview of the Determination
The purpose of this Determination is to provide members on a long‑term posting overseas with an additional public holiday for the national day of mourning following the death of Her Majesty The Queen.
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.
Assessment of compatibility
This Determination is compatible with human rights as it recognises the entitlement of a member on long‑term posting overseas to an additional public holiday for the calendar year 2022 in addition to those provided under subsection 15.1.10.1 of the Defence Determination for the same year, subject to sections 7 and 8 of this Determination.
Conclusion
This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.