EXPLANATORY STATEMENT
Defence (Individual Benefits) Determination 2021 (No. 8)
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 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 29 July 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 was 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 (Individual Benefits) Determination 2021 (No. 8)
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 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 (Individual Benefits) Determination 2021 (No. 8) was enacted to provide a one-off payment to a member of the Australian Defence Force (ADF) for the value of work performed 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 disallowance and the interpretation principles in the Acts Interpretation Act 1901. It is designed to recognise the importance of such leadership roles in enabling the ADF to provide essential capabilities and support services, thereby contributing to Defence capability and preparedness. The enactment of this Determination ensures that ADF members are appropriately compensated for their elevated responsibilities in leadership positions.
This legislation was developed in consultation with the relevant Service, and no external consultation was required as it does not alter existing arrangements. The payment amount is based on the conditions that would have applied under the Defence Determination 2016/19, specifically the Higher Duties Allowance, during a specified period. This Determination also aligns with human rights, as affirmed by a Statement of Compatibility with Human Rights, ensuring that the payment is consistent with the right to just and favourable conditions of work as outlined in international human rights instruments.
Scope and Application
The Defence (Individual Benefits) Determination 2021 (No. 8) applies to members of the Australian Defence Force (ADF) who have held a senior leadership position at a higher rank. This determination provides a one-off payment to recognise the value of work performed by these members, ensuring fair remuneration for their essential leadership roles which contribute to Defence capability and preparedness. The geographic scope of this legislation is federal, as it is made under the Defence Act 1903, which is Commonwealth legislation. The determination is effective from the day after it is registered on the Federal Register of Legislation and is subject to disallowance under the Legislation Act 2003. No exclusions, exemptions, or thresholds are specified in this determination, and while it is subject to the interpretation principles in the Acts Interpretation Act 1901, it does not extend or restrict application through subordinate instruments. The determination is compatible with human rights as it provides a one-off payment that aligns with the right to just and favourable conditions of work.
Key Provisions
The Defence (Individual Benefits) Determination 2021 (No. 8) (the Determination) outlines specific provisions related to a one-off payment for a member of the Australian Defence Force (ADF). This payment is intended to recognise the value of the work performed by the member while acting in a senior leadership position at a higher rank, as detailed in section 4 of the Determination. The payment amount is equivalent to what would have been paid under Defence Determination 2016/19, Conditions of service, Chapter 4 Part 2, Higher duties allowance, between 29 July 2020 and 12 May 2021. The relevant section numbers are 3 and 4, which provide clarity on the amount to be paid and the criteria for the payment eligibility.
The Determination imposes several obligations and requirements on the parties involved. Firstly, it specifies that the payment is to be made to the member of the ADF as detailed in section 4. The payment is contingent upon the member having held a specific senior leadership position at a higher rank, as per section 4. Additionally, the member must hold the specified employee identification number as outlined in section 4. The Determination also requires the relevant service to have been consulted and to have agreed to the payment, as stated in the Explanatory Statement.
In terms of offences, penalties, or consequences for breach, the Determination does not explicitly outline specific civil or criminal penalties for non-compliance. However, it is subject to the Legislation Act 2003, which provides a framework for legislative instruments, including disallowance. The Determination is also compatible with human rights as stated in the Statement of Compatibility with Human Rights, indicating no human rights issues are raised. This ensures that the provisions align with the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011, protecting the member's right to remuneration and just and favourable conditions of work.