EXPLANATORY STATEMENT
Defence (Individual benefits) Determination 2022 (No. 5)
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 a payout for long service leave credits accrued by a member of the Australian Defence Force to the member due to exceptional circumstances.
Operational Details
Details of the operation of the Determination are provided at annex A.
This Determination references 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 Army and the Pay and Administration Centre. 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 (Individual benefits) Determination 2022 (No. 5)
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 species the purpose of the Determination.
Section 5 identifies the member by reference to their employee identification number.
Section 6 provides a definition of “Defence Determination” which means Defence Determination 2016/19, Conditions of service, as in force from time to time. A definition is also provided for “long service leave credits” which incorporates a reference to Chapter 5 Part 5 of the Defence Determination.
Section 7 provides that the member is to be paid an amount in lieu of, and equivalent to, the long service leave credits they have accrued up to and including the date of commencement of this Determination. The amount payable is to be calculated according to section 5.5.26 of the Defence Determination, which provides the method for determining the payout of long service leave credits for a member who is ceasing continuous full-time service. The member’s accrued long service leave credit is to be reduced by the number of long service leave credits that are paid out under this section.
Section 8 provides that this Determination is repealed on 31 October 2022.
Annex B
Defence (Individual benefits) Determination 2022 (No. 5)
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 the payout for the long service leave credits accrued by a member of the Australian Defence Force to the member identified in section 4 of this Determination due to exceptional circumstances.
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 provides a member a payment in lieu for their accrued long service leave due to their exceptional circumstance. This payment will allow the member to access the benefit earlier than is required under the relevant provision due to the exceptional circumstance. This payment is made as a condition of their service.
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. 5) was enacted under section 58B of the Defence Act 1903 to address the issue of providing a payout for long service leave credits to a member of the Australian Defence Force due to exceptional circumstances. The Act was passed by the Australian Parliament and aims to provide a financial benefit to eligible members under specific conditions. The Determination ensures that members who face exceptional circumstances receive their accrued long service leave credits in a timely manner, facilitating their transition out of service and offering necessary financial support. This legislative instrument adheres to the interpretation principles outlined in the Acts Interpretation Act 1901 and is subject to disallowance as per the Legislation Act 2003. Additionally, it complies with human rights standards, as evidenced by the compatibility statement under the Human Rights (Parliamentary Scrutiny) Act 2011, ensuring the provision of benefits is fair and just.
Scope and Application
The Defence (Individual benefits) Determination 2022 (No. 5) applies specifically to a member of the Australian Defence Force identified by their employee identification number, providing a payout for accrued long service leave credits due to exceptional circumstances. This Determination is made under section 58B of the Defence Act 1903 and operates in accordance with the Acts Interpretation Act 1901. It is applicable within the Commonwealth jurisdiction and is subject to disallowance under the Legislation Act 2003. The scope of this Determination is limited to the member identified in section 4 and is effective from the day after registration until its repeal on 31 October 2022. The payout amount is calculated according to section 5.5.26 of Defence Determination 2016/19, Conditions of service. The Determination also references relevant human rights compatibility, ensuring alignment with the International Covenant on Economic, Social and Cultural Rights. Decisions made under this Determination can be subject to inquiry under the ADF redress of grievance system and may be reviewed by the Defence Force Ombudsman.
Key Provisions
The Defence (Individual benefits) Determination 2022 (No. 5) (the Determination) is made under section 58B of the Defence Act 1903 and sets out specific provisions for the payout of long service leave credits to a member of the Australian Defence Force (ADF) due to exceptional circumstances. The key provisions include the method of citation in section 1, the commencement date specified in section 2, the authority under section 58B of the Defence Act in section 3, and the purpose outlined in section 4. Section 5 identifies the member by their employee identification number, while section 6 defines terms such as “Defence Determination” and “long service leave credits,” incorporating references to Defence Determination 2016/19, Conditions of service. The central provision is in section 7, which mandates that the member be paid an amount equivalent to their accrued long service leave credits, calculated according to section 5.5.26 of Defence Determination 2016/19, with the credits reduced accordingly. Section 8 specifies the repeal date of the Determination as 31 October 2022.
The Determination imposes specific obligations on the ADF, primarily concerning the calculation and payment of long service leave credits to the identified member. It requires adherence to the methodology outlined in Defence Determination 2016/19 for calculating the payout and mandates that the member be compensated in a manner that reflects their accrued leave. This includes reducing the member's long service leave credits by the amount paid out under the Determination. Additionally, the Determination requires that any payments be made by the date of its commencement, ensuring timely compensation to the affected member.
Breach of the provisions outlined in the Determination may lead to legal consequences. While the Determination itself does not specify particular offences or penalties, non-compliance with the Defence Act or associated regulations could result in disciplinary action, administrative penalties, or other legal ramifications under relevant ADF policies. The Determination's disallowance under the Legislation Act 2003 suggests that any failure to comply with its provisions could be subject to review and potential annulment by the relevant authorities. Furthermore, any decisions made under this Determination may be subject to inquiry under the ADF redress of grievance system or complaint to the Defence Force Ombudsman, as stipulated in the Defence Regulation 2016.