Defence (Individual Benefits) Determination 2021 (No. 4)

Administered by Department of Defence

Legislation au F2021L01180 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Defence (Individual Benefits) Determination 2021 (No. 4)

This Determination is 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 AI Act, as modified by section 58B of the Defence Act.

The purpose of this Determination is to provide a payment to certain family members of a former member of the Australian Defence Force (ADF). The legal advice is limited to the reasonable expenses of receiving legal advice incurred as the executor of the former member’s will and the spouse of the former member to enable them to fully understand options and prospects arising out of matters subsequent to the member’s death. Defence has generally well developed processes for supporting the families of members who become injured or deceased while serving. The circumstances relating to the death of the deceased member have identified the need for additional benefits to be paid in this special circumstance.

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

Section 2 is the commencement provision for the Determination and provides that the whole of this Determination commences on the day after registration.

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

Section 4 provides definitions that apply in this Determination, including the following:

         Decision maker – identifies the person who is able to make decisions under this Determination.

         Deceased member – identifies the member to which this Determination relates.

         Eligible person – identifies the classes of persons who are eligible for a benefit under this Determination.

Section 5 provides a payment to eligible persons for the cost of legal advice for the purpose of assisting the person to understand the options and prospects of success in respect of the circumstances of the deceased member. The decision is a discretionary decision and may be paid if the decision maker is satisfied that the payment is consistent with its purpose. This power may be exercised more than once, but the combined sum of payments is limited by section 6. Subsection 2 provides context as to matters that may be considered as matters arising out the circumstances of the member’s death. Subsection 3 expressly limits the ability of the decision maker to make a payment for legal representation, or in relation to any other matter.

Section 6 provides the power for the decision maker to set the amount of a payment made under section 5. In determining the amount of the payment, the decision maker must consider guidance provided by the Office of Legal Services Coordination and Commonwealth Legal Financial Assistance Schemes Assessment of Costs dated July 2012, published by the Attorney General’s Department. The combined sum amount of payments made under this Determination must not exceed $10,000.

The Commonwealth Legal Financial Assistance Schemes Assessment of Costs is incorporated into this Determination, as in force on the commencement of this Determination.

Section 7 requires a payment made under this Determination to be made to the service provider.

Section 8 repeals this determination on 1 July 2022.

Decisions made and actions taken under this Determination are not subject to any inquiry under the ADF redress of grievance system, however, the CDF may review a decision made under the Determination. If a more favourable decision is preferred, the CDF may either make recommendations to the decision maker to reconsider the decision, or make a new determination to provide that more favourable outcome.

A person may also make a complaint about the administration of the Determination to the Defence Force Ombudsman. This includes an independent merits review of decision made under the Determination.

Consultation

Before this Determination was made, the Department of Veterans’ Affairs, Royal Australian Air Force Headquarters, Chief Finance Officer Group and Defence General Counsel within the Department of Defence were consulted.

The decision maker is satisfied that further consultation is not necessary.

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 (Individual Benefits) Determination 2021 (No. 4)

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 payment to certain family members of a former member of the Australian Defence Force (ADF). The legal advice is limited to the reasonable expenses of receiving legal advice incurred as the executor of the former member’s will and the spouse of the former member to enable them to fully understand options and prospects arising out of matters subsequent to the member’s death. Defence has generally well developed processes for supporting the families of members who become injured or deceased while serving. The circumstances relating to the death of the deceased member have identified the need for additional benefits to be paid in this special circumstance.

Human rights implications

This Determination does not engage any applicable rights or freedoms.

Conclusion

This Determination is compatible with human rights it does not engage any applicable human rights or freedoms.

 

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions, Defence People Group

 

 

 

Overview

The Defence (Individual Benefits) Determination 2021 (No. 4) was enacted under section 58B of the Defence Act 1903 to address a specific gap in support for the families of deceased members of the Australian Defence Force (ADF). This Determination provides financial assistance for legal advice to the executor of a deceased member’s will and their spouse, enabling them to better understand the options and prospects following the member's death. This measure was introduced due to identified circumstances surrounding the death of certain members that necessitated additional benefits beyond the general support processes already in place for deceased or injured members. The Determination was made by the Australian government and aims to provide targeted assistance in unique situations. The policy objective is to ensure that family members receive the necessary legal guidance to navigate the complexities arising from the member's death.

Scope and Application

The Defence (Individual Benefits) Determination 2021 (No. 4) is a legislative instrument made under section 58B of the Defence Act 1903, providing a payment to specific family members of a deceased member of the Australian Defence Force (ADF) for the reasonable expenses of legal advice. This applies to the executor of the deceased member's will and the spouse, focusing on understanding the options and prospects arising from the member's death. The legal advice pertains only to matters subsequent to the member's death and is subject to a discretionary decision by the decision-maker, who can exercise this power more than once, though the total payments must not exceed $10,000. The decision-maker must consider guidance from the Office of Legal Services Coordination and the Commonwealth Legal Financial Assistance Schemes Assessment of Costs when setting the payment amount. The Commonwealth Legal Financial Assistance Schemes Assessment of Costs is incorporated into the Determination as in force on its commencement. Payments must be made to the service provider, and the Determination will be repealed on 1 July 2022. Decisions under this Determination are not subject to inquiry under the ADF redress of grievance system, though the Chief of the Defence Force (CDF) may review a decision or make a new determination if a more favourable outcome is preferred. Complaints about the administration of the Determination can be made to the Defence Force Ombudsman, including an independent merits review of decisions made under the Determination.

Key Provisions

The main operative sections of the Defence (Individual Benefits) Determination 2021 (No. 4) outline the provisions for a payment to specific family members of a deceased member of the Australian Defence Force (ADF). Section 1 allows the Determination to be cited as the Defence (Individual Benefits) Determination 2021 (No. 4). Section 2 details that the entire Determination takes effect the day after its registration. Section 3 establishes the Determination's authority under section 58B of the Defence Act 1903. Section 4 provides definitions for key terms such as "Decision maker," "Deceased member," and "Eligible person." Section 5 grants the decision maker the discretion to pay for the reasonable expenses of legal advice for eligible persons, limited by the context of the deceased member's circumstances and capped at $10,000 in total payments under this Determination. Section 6 further specifies that the decision maker can set the amount of any payment, considering the guidance from the Commonwealth Legal Financial Assistance Schemes Assessment of Costs. Section 7 mandates that payments under this Determination must be made to the service provider. Section 8 repeals this Determination on 1 July 2022. The Determination imposes several obligations on the parties involved. The decision maker, who has the authority to make discretionary payments under section 5, must ensure that any payment aligns with the purpose of assisting eligible persons in understanding their options and prospects. The decision maker must also consider the guidance provided by the Commonwealth Legal Financial Assistance Schemes Assessment of Costs when setting the amount of a payment, as stipulated in section 6. Additionally, payments must be made directly to the service provider, as outlined in section 7. The Determination also provides for potential review and complaint processes, allowing for independent merits review by the Defence Force Ombudsman and possible reconsideration by the Chief of the Defence Force (CDF) if a more favourable decision is preferred. Breach of the provisions outlined in this Determination may not explicitly state specific criminal or civil penalties. However, the Determination does not engage any applicable rights or freedoms as per the Statement of Compatibility with Human Rights, ensuring its compatibility with human rights. Decisions made under this Determination are not subject to inquiry under the ADF redress of grievance system, but the CDF retains the authority to review decisions and make recommendations or new determinations if a more favourable outcome is deemed necessary. Additionally, individuals may lodge a complaint about the administration of the Determination with the Defence Force Ombudsman, which may lead to an independent merits review.

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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.