Defence Determination (Serious illness, long service leave and travel) Amendment 2018 (No. 5)

Administered by Department of Defence

Legislation au F2018L00082 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Defence Determination (Serious illness, long service leave and travel) Amendment 2018 (No. 5)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), 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 AIA Act, as modified by section 58B of the Defence Act.

Chapter 1 of the Principal Determination sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions for members of the Australian Defence Force (ADF).

Chapter 5 of the Principal Determination sets out provisions dealing with leave for members of the ADF.

Chapter 9 of the Principal Determination sets out provisions dealing with travel costs in Australia for members of the ADF.

This Determination has the following purposes:

  • To amend a definition for 'serious illness' to reference "person's" rather than "member's".
  • To add to a list of reasons a circumstance that ends a member's service for which a member may be paid a pro rata payment instead of long service leave.
  • To provide the Chief of the Defence Force (CDF) with the discretion to authorise a member granted recreation leave travel to travel by private vehicle.

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 provides that this instrument commences on 8 February 2018.

Section 3 provides that this instrument has authority under section 58B of the Defence Act 1903.

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 provides amendments to the Principal Determination.

Section 1 amends table item 1 in section 1.3.72 of the Principal Determination, which provides the meaning of "serious illness" when used in the Principal Determination. With respect to approving compassionate leave, the definition provided, "serious illness" is an illness or injury that endangers the 'member's life'. However, compassionate leave is provided to the member to visit their ill relatives. Section 1 amends the definition to refer to a "person's life" and not the "member's life".

Section 2 insert paragraph 5.5.28.1.g into the Principal Determination. The section provides a pro rata payment to a member who has more than 1 but less than 10 years of accrued service, if their service ends for certain reasons beyond the member's control. A new reason is added to the list; "medically unfit for service" to clarify the current provision. Section 3 omits and substitutes section 9.6.21 of the Principal Determination, which provides that a member granted recreation leave travel may be authorised to travel by private vehicle. Section 3 provides that this decision is at the discretion of the CDF because it may not be the most economical means of travel.

If a member has been granted recreation leave travel to an approved destination, the CDF may authorise their travel in a private vehicle between the member's posting location and the approved destination. Travel costs for accommodation, meals and incidentals are not payable.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Consultation

This Determination makes simple amendments that correct an error, reduce ambiguity and enable specific positions to exercise a pre-existing power. The rulemaker was satisfied that external consultation was not required.

 

 

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 Serious illness, long service leave and travel) Amendment 2018 (No. 5)

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 has the following purposes:

  • To amend a definition for "serious illness" to reference "person's" rather than "member's".
  • To add to a list of reasons a circumstance that ends a member's service for which a member may be paid a pro rata payment instead of long service leave.
  • To provide a CDF discretion to authorise a member granted recreation leave travel to travel by private vehicle.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

The protection of a person's right to just and favourable conditions of work 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 protects this right by clarifying policy and correcting errors to assist people to better understand and apply benefits. The change to the definition for 'serious illness' simply clarifies an existing provision. The addition to the list of reasons for paying a member long service leave is to remove ambiguity. The power to authorise a member granted leave travel to travel by private vehicle was available before this Determination. The decision to authorise this travel type will now be at the discretion  of the CDF, which will enable the CDF to authorise specific positions to exercise the power on the CDF's behalf.

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 (Serious illness, long service leave and travel) Amendment 2018 (No. 5) amends Defence Determination 2016/19, which was made under section 58B of the Defence Act 1903 and is subject to the Legislation Act 2003. This amendment was enacted by the Australian Parliament to correct an error, reduce ambiguity, and clarify certain discretionary powers. The purpose of the amendment is to update the definition of 'serious illness' in the context of compassionate leave, extend the circumstances under which a pro rata payment is applicable for service members, and grant the Chief of the Defence Force discretion in authorising travel by private vehicle for members on recreation leave. These changes aim to ensure clarity in policy application and better align the legislation with human rights standards, particularly concerning the right to just and favourable conditions of work.

Scope and Application

The Defence Determination (Serious illness, long service leave and travel) Amendment 2018 (No. 5) amends the Defence Determination 2016/19, which sets out the conditions of service for members of the Australian Defence Force (ADF) under the Defence Act 1903. This Amendment applies to all members of the ADF and alters certain definitions and provisions relating to serious illness, long service leave, and travel. Specifically, it amends the definition of "serious illness" to reference "person's" rather than "member's", clarifies circumstances under which a pro rata payment may be made in lieu of long service leave, and grants the Chief of the Defence Force discretion to authorise members on recreation leave travel to use private vehicles. The Amendment applies nationally, affecting ADF members across Australia, and it provides criteria for the exercise of discretions under the amended Principal Determination, with adverse decisions subject to inquiry under the ADF redress of grievance system. The Amendment does not extend or restrict application through subordinate instruments and is compatible with human rights as it advances the protection of the right to the enjoyment of just and favourable conditions of work.

Key Provisions

The Defence Determination (Serious illness, long service leave and travel) Amendment 2018 (No. 5) brings specific changes to the Defence Determination 2016/19, Conditions of service, made under section 58B of the Defence Act 1903. Section 1 of this Amendment provides the definition of 'serious illness' used throughout the Principal Determination, adjusting it to reference "person's" rather than "member's", thereby broadening the scope of who can be considered when assessing the need for compassionate leave (section 1.3.72). This Amendment also adds "medically unfit for service" as a reason for a pro rata payment instead of long service leave for members who have accrued more than one but less than ten years of service and whose service ends for reasons beyond their control (section 5.5.28.1.g). Additionally, it grants the Chief of the Defence Force (CDF) the discretion to authorise a member granted recreation leave travel to travel by private vehicle (section 9.6.21). The Amendment comes into effect on 8 February 2018, as specified in section 2, and is made under the authority of section 58B of the Defence Act 1903, as detailed in section 3. Under this Amendment, the ADF is obligated to adjust its interpretation of "serious illness" to encompass a broader range of individuals, not just the member themselves, when considering compassionate leave applications. This ensures a more inclusive application of the policy. Furthermore, the ADF must provide a pro rata payment to members who have served more than one but less than ten years and whose service ends due to being medically unfit for service, thereby offering a financial alternative to long service leave under specific circumstances. Additionally, the CDF is tasked with exercising discretion in authorising members on recreation leave travel to use private vehicles, recognising that such travel may not always be the most economical option. Breach of the obligations outlined in this Amendment may result in consequences under the ADF's redress of grievance system. Adverse decisions regarding leave or payments may be subject to inquiry, and complainants have the right to lodge a complaint with the Defence Force Ombudsman. The maximum penalties for breaches are not explicitly stated in the text, but they would likely align with the general penalties applicable under the Defence Act 1903 and other relevant legislation. The Amendment is designed to correct an error, reduce ambiguity, and empower specific positions to exercise a pre-existing power. Given the minor nature of these changes, the rulemaker determined that external consultation was not required. The Amendment is also stated to be compatible with human rights, particularly the right to the enjoyment of just and favourable conditions of work, as it clarifies existing provisions and removes ambiguity, thereby protecting the rights of ADF members.

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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.