EXPLANATORY STATEMENT
Defence (Individual benefits) Determination 2022 (No. 4)
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.
Purpose
The purpose of this Determination is to provide a leave benefit to 2 members of the Australian Defence Force (ADF) in unique circumstances. The Determination does not provide benefits over and above those for which members would have otherwise been eligible.
Operational Details
Details of the operation of the Determination are provided at annex A.
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 Navy, Army and Air Force. The rule maker was satisfied that the 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 (Individual benefits) Determination 2022 (No. 4)
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 that a member holding employee identification number 8515631 or 8519719 is eligible for 20 days of leave and the conditions that apply to the leave.
Section 5 provides that the member holding employee identification number 8515631 is eligible to an additional 10 weeks of leave and the conditions that apply to the leave.
Section 6 provides that the leave provided under this Determination counts as effective service in respect to benefits provided under the Defence Determination, Conditions of service 2016/19, as in force from time to time and determinations made under section 58H of the Defence Act 1903, as in force from time to time.
Section 6 also provides that a member eligible for a benefit under this Determination is not eligible for paid parental leave or special paid parental leave under the Defence Determination, Conditions of service 2016/19, as in force from time to in respect of the same child that the member claims a benefit for under this Determination.
Section 7 provides that a member applying for leave under the Determination must use form AF088 – Application for leave.
Section 8 provides that the Determination repeals on 30 June 2023.
Annex B
Defence (Individual benefits) Determination 2022 (No. 4)
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 a leave benefit to 2 members of the Australian Defence Force (ADF) in unique circumstances. The Determination does not provide benefits over and above those for which members would have otherwise been eligible.
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 because it provides a member in unique circumstances with favourable conditions of service by providing them with access to paid leave.
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 (Individual benefits) Determination 2022 (No. 4) was enacted to provide a specific leave benefit to two members of the Australian Defence Force (ADF) in unique circumstances. Made under section 58B of the Defence Act 1903 and in accordance with the Acts Interpretation Act 1901, this determination aims to ensure these members receive favourable conditions of service by granting them access to paid leave that they would not otherwise be eligible for. The policy objective is to support ADF members in exceptional situations while adhering to the principles of fairness and equality within the ADF. Subject to disallowance under the Legislation Act 2003, this determination ensures that the benefits provided do not exceed what is ordinarily available to ADF members. The enactment of this determination by the relevant authorities demonstrates a commitment to addressing individual needs within the ADF framework while maintaining human rights compatibility as affirmed in the Human Rights (Parliamentary Scrutiny) Act 2011.
Scope and Application
The Defence (Individual Benefits) Determination 2022 (No. 4) is a legislative instrument made under section 58B of the Defence Act 1903, applying specifically to two members of the Australian Defence Force (ADF) who are in unique circumstances. The Determination aims to provide these members with additional leave benefits that are not available to other ADF members, but it does not exceed the benefits they would otherwise be eligible for. The geographic and jurisdictional reach of this Determination is confined to the Commonwealth level, impacting only the ADF and its members. The Determination came into effect on the day after its registration and is set to be repealed on 30 June 2023. It does not extend to other individuals or entities outside the ADF. The application of the Determination may be further regulated through subordinate instruments, although no such instruments are specified in the explanatory statement.
Key Provisions
The Defence (Individual Benefits) Determination 2022 (No. 4) (the Determination) provides specific leave benefits to two members of the Australian Defence Force (ADF) in unique circumstances, as outlined in sections 4 and 5. Section 4 states that the member with the employee identification number 8515631 is eligible for 20 days of leave, while section 5 states that the member with the employee identification number 8519719 is eligible for an additional 10 weeks of leave. These leave provisions are designed to cater to the specific needs of these members and do not exceed the benefits they would have otherwise been eligible for. The leave granted under this Determination counts as effective service for the purposes of other benefits under the Defence Determination, Conditions of Service 2016/19, and determinations made under section 58H of the Defence Act 1903. However, it should be noted that members eligible for benefits under this Determination are not eligible for paid parental leave or special paid parental leave under the Defence Determination, Conditions of Service 2016/19, in respect of the same child.
The Determination imposes specific obligations on the parties it governs. Members of the ADF who are eligible for the leave benefits must apply for leave using form AF088 – Application for Leave, as specified in section 7. Furthermore, the leave provided under this Determination is subject to the general conditions of service and any other relevant provisions under the Defence Determination, Conditions of Service 2016/19, and determinations made under section 58H of the Defence Act 1903. The leave provided under this Determination is also subject to the repeal of the Determination on 30 June 2023, as outlined in section 8.
Any breaches of the Determination may result in civil or criminal consequences, although specific offences and penalties are not outlined in the text. However, it is important to note that decisions 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. Additionally, a person may make a complaint to the Defence Force Ombudsman. The Determination is also subject to the compatibility with human rights as stated in annex B, which concludes that the 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.