Defence Determination (National day of mourning – Public holiday) Determination 2022

Administered by Department of Defence

Legislation au F2022L01212 Not in force Legislative Instrument

Legislation content

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

 

Authority:

Section 58B of the
Defence Act 1903


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.

Overview

The Defence Determination (National day of mourning – Public holiday) Determination 2022 was enacted to address the need for Australian Defence Force members on long-term overseas postings to observe the national day of mourning following the death of Her Majesty The Queen. This Determination was made under section 58B of the Defence Act 1903 and in accordance with the Acts Interpretation Act 1901, and it is subject to disallowance and review as per the Legislation Act 2003. The objective of the Determination is to provide these members with an additional public holiday to observe the national day of mourning at their location of posting. The Determination is compatible with human rights, recognising the entitlement of the affected members to an additional public holiday for the calendar year 2022. The decision-making process involved consultation with relevant departments, and the Determination was approved by Fiona Louise McSpeerin, Assistant Secretary, People Policy and Employment Conditions.

Scope and Application

The Defence Determination (National day of mourning – Public holiday) Determination 2022 is made under section 58B of the Defence Act 1903 and applies to members on a long-term posting overseas who require an additional public holiday to observe Australia's national day of mourning following the death of Her Majesty The Queen. This Determination is not applicable to members not on a long-term overseas posting and does not affect the public holidays as defined in other Defence Determinations. The Determination is a Commonwealth instrument and applies to all members of the Australian Defence Force (ADF) who meet the specified criteria, regardless of their location overseas. The Determination does not specify any exclusions or exemptions beyond its defined scope. The operational details of the Determination are provided in Annex A, which includes the commencement date, authority, purpose, and definitions used within the Determination. The public holiday granted under this Determination is not counted as a public holiday for the purposes of other Defence Determinations, as specified in section 8.

Key Provisions

The main operative sections of the Defence Determination (National day of mourning – Public holiday) Determination 2022, found in Section 7, provide that members on a long-term posting overseas are granted an additional public holiday to observe the national day of mourning following the death of Her Majesty The Queen. This holiday is intended to allow these members to mourn at their posting location. If a member is required to attend duty on the specified mourning day, the decision-maker can approve an alternative day for the member to take the short leave. The Determination also clarifies, in Section 8, that this additional public holiday does not count towards the total number of public holidays an individual member can take under subsection 15.1.10.1 of the Defence Determination 2016/19, Conditions of service, as in force from time to time. The Determination is made under section 58B of the Defence Act 1903 and is subject to disallowance, as stated in Section 3. The obligations and requirements imposed by this Determination are primarily focused on ensuring that members on long-term overseas postings have the opportunity to observe the national day of mourning. Under Section 7, the decision-maker, as defined in Section 5, has the discretionary power to approve an alternative day for the short leave if a member is required to attend duty on the specified mourning day. This ensures that the intent of the Determination is upheld without causing operational disruptions. Additionally, the Determination, as outlined in Section 6, applies specifically to members who are on a long-term posting overseas, thereby delineating the scope of its application. The Determination does not explicitly detail specific offences, penalties, or civil/criminal consequences for breaches within its text. However, it is noted that determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003. This means that any breaches of this Determination could potentially be subject to the legislative framework governing disallowable instruments, which could include civil or administrative penalties as per relevant legislative provisions.

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Defence Law
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Determination
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Definitions & Interpretation
Commencement Provisions
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.