Defence (Individual benefits) Determination 2022 (No. 9)

Administered by Department of Defence

Legislation au F2022L01717 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Defence (Individual benefits) Determination 2022 (No. 9)

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) and are subject to the interpretation principles in the AI Act.

Purpose

The purpose of this Determination is to provide a leave benefit under special circumstances to two members of the Australian Defence Force (ADF). This Determination does not provide benefits over and above those for which members would be eligible for in similar circumstances.

Operational Details

Details of the operation of this Determination are provided at annex A.

This Determination makes references to sections of the Defence Determination 2016/19, Conditions of service (Defence Determination). The Defence Determination is incorporated into this Determination, 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 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 Air Force. The rule maker was satisfied that further consultation was not required.

Approved by:

Jake Thomas Gumley

Acting Assistant Secretary

People Policy and Employment Conditions

 

Authority:

Section 58B of the
Defence Act 1903


Annex A

Defence (Individual benefits) Determination 2022 (No. 9)

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 the definition of Defence Determination.

Section 5 provides that the member holding employee identification number 8197872 is eligible for the equivalent of 10 weeks leave at fullpay, and specifies the conditions that apply to the leave. It also provides that any recreation leave under the Defence Determination the member is on at the time of the commencement of this Determination will cease on the day before the commencement of this Determination. This will result in the member being re-credited any unused leave credits and will not result in any detriment to the member.

Section 6 provides that members holding employee identification numbers 8197872 or 8202402 are eligible for the equivalent of 20 working days of leave each. The section also specifies the conditions that apply to the leave under this section. For the member holding the employee identification number 8197872, the leave under this section is in addition to the initial leave provided under section 5.

Section 7 provides the mechanisms for how the duration of a leave type is reduced when a member takes leave of that leave type.

Section 8 provides that the leave provided under this Determination counts as effective service for benefits provided under the Defence Determination or a determination made under section 58H of the Defence Act, as in force from time to time. It also excludes eligibility for other types of parental leave under Chapter 5 Part 7 Divisions 2 and 3 of the Defence Determination in relation to the same child.

Section 9 provides the specific timeframe for when the leave under section 5 must be applied for member holding employee identification number 8197872. It also provides that any of the leave under sections 5 and 6 must be applied for using Form AF088  Application for leave.

Section 10 provides that this Determination repeals on 26 February 2024.

 

Annex B

Defence (Individual benefits) Determination 2022 (No. 9)

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 under special circumstances to two members who are dualserving members of the Australian Defence Force (ADF). This 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 the principles of human rights because it provides members with favourable conditions of service through access to paid leave in special circumstances. These benefits are provided as a part of the members’ conditions of service package.

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. 9) was enacted under section 58B of the Defence Act 1903 by the Parliament of Australia to address the need for special leave benefits for certain members of the Australian Defence Force (ADF) under exceptional circumstances. This Determination aims to provide these members with leave benefits that align with their conditions of service, without granting any additional entitlements beyond what they would otherwise be eligible for. The policy objective of the Determination is to ensure that ADF members receive just and favourable conditions of work as guaranteed under Article 7 of the International Covenant on Economic, Social and Cultural Rights, which includes access to paid leave under special circumstances. This approach maintains the integrity of the ADF's conditions of service package while addressing unique situations that may arise.

Scope and Application

The Defence (Individual benefits) Determination 2022 (No. 9) applies specifically to two members of the Australian Defence Force (ADF) identified by their employee identification numbers, 8197872 and 8202402. This Determination is made under section 58B of the Defence Act 1903 and operates as a legislative instrument within the Commonwealth jurisdiction. It provides these members with a leave benefit under special circumstances, ensuring they receive favourable conditions of service through access to paid leave. The leave benefits specified in the Determination are in line with the existing entitlements under the Defence Determination and do not exceed what would be available in similar circumstances. The leave granted includes the equivalent of 10 weeks of leave at full pay for the member with identification number 8197872 and an additional 20 working days of leave for both members. These provisions count as effective service for benefits under the Defence Determination and other applicable instruments. The Determination also specifies that the leave must be applied for using Form AF088 – Application for leave and sets a specific timeframe for the application of the leave. It is compatible with human rights as it adheres to the principles of just and favourable conditions of work.

Key Provisions

The Defence (Individual benefits) Determination 2022 (No. 9) under the Defence Act 1903 provides specific leave benefits to two members of the Australian Defence Force (ADF) under special circumstances. Section 5 of the Determination grants the member holding employee identification number 8197872 the equivalent of 10 weeks of leave at full pay, with conditions on the cessation of any recreation leave they may be on at the time of the commencement of this Determination (section 5). For this member, any unused leave credits will be re-credited, and there will be no detriment to them (section 5). Additionally, Section 6 provides the member holding employee identification numbers 8197872 or 8202402 with the equivalent of 20 working days of leave each, with specific conditions that apply to this leave (section 6). For the member with identification number 8197872, this leave is in addition to the initial leave provided in section 5. This Determination imposes obligations on the eligible members to apply for the leave using Form AF088 – Application for leave (section 9). The leave provided under this Determination counts as effective service for benefits under the Defence Determination or a determination made under section 58H of the Defence Act, as in force from time to time (section 8). It also excludes eligibility for other types of parental leave in relation to the same child (section 8). Breaches of this Determination may lead to civil or criminal consequences. However, the Determination does not explicitly state any specific offences, penalties, or consequences for breach. Under the general legislative framework, unauthorised actions or breaches of statutory provisions can lead to civil or criminal penalties, depending on the nature and severity of the breach. For example, misleading or false statements made in the application process could lead to penalties under relevant Acts, such as the Crimes Act 1914 or the Defence Act 1903. The maximum penalties would depend on the specific offence and the jurisdiction under which it is prosecuted.

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