Defence (Individual Determination) Determination 2023 (No. 1)

Overview

The Defence (Individual Determination) Determination 2023 (No. 1) was enacted to address the specific need of providing a payout for long service leave credits to a member of the Australian Defence Force under exceptional circumstances. This Determination is made under section 58B of the Defence Act 1903 and complies with the Acts Interpretation Act 1901, ensuring that it adheres to the legislative and interpretative frameworks established by these acts. The objective of this Determination is to ensure that a member who faces exceptional circumstances receives a payout for their accrued long service leave credits, thereby recognising their service and providing necessary financial support. This was achieved through consultation with relevant entities within the Defence Force and approval by the Assistant Secretary People Policy and Employment Conditions.

Scope and Application

The Defence (Individual Determination) Determination 2023 (No. 1) applies to a specific member of the Australian Defence Force, identified by their employee identification number, who has accrued long service leave credits due to exceptional circumstances. This Determination is made under section 58B of the Defence Act 1903 and is subject to the provisions of the Acts Interpretation Act 1901. It provides a payout to the member for their accrued long service leave credits, calculated according to section 5.5.26 of Defence Determination 2016/19, Conditions of service. The Determination is operational from the day after registration and is repealed on 30 April 2022. It is compatible with human rights, providing just and favourable conditions of work for the member by offering an earlier payout of accrued long service leave due to their exceptional circumstances. Decisions made under this Determination may be subject to inquiry under the ADF redress of grievance system and complaints can be made to the Defence Force Ombudsman.

Key Provisions

The main operative sections of the Defence (Individual Determination) Determination 2023 (No. 1) detail how it is to be cited, the date of commencement, and the authority under which it is made (sections 1-3). Section 4 specifies the purpose of the Determination, which is to provide a payout for long service leave credits accrued by a member of the Australian Defence Force due to exceptional circumstances. Section 5 identifies the member by their employee identification number, while Section 6 defines key terms such as "Defence Determination" and "long service leave credits." The core provision in Section 7 mandates that the member receive a payout equivalent to their accrued long service leave credits up to the date of commencement, calculated according to section 5.5.26 of Defence Determination 2016/19, Conditions of service. Section 8 stipulates that the Determination will be repealed on 30 April 2022. The Act imposes specific obligations on the relevant parties. For instance, it requires that the member identified by their employee identification number in Section 5 be paid an amount in lieu of their accrued long service leave credits. The payment must be calculated according to the specified section of Defence Determination 2016/19, ensuring that the member receives a fair and accurate payout. Additionally, the Determination mandates that the accrued long service leave credits be reduced by the number of credits that are paid out under this Determination. These obligations are designed to ensure that the member receives appropriate compensation due to the exceptional circumstances. Any breaches of the provisions outlined in this Determination may have legal consequences. While the Determination itself does not explicitly state offences, penalties, or consequences for non-compliance, it is subject to the broader legal framework under which it operates. Given that this is a disallowable legislative instrument, failure to comply with the Determination could potentially lead to legal action, including judicial review, especially if the member believes the payout is not correctly calculated or if there is a dispute over the exceptional circumstances. Moreover, as the Determination is subject to the Acts Interpretation Act 1901, any interpretation issues could also lead to legal scrutiny, potentially resulting in penalties or other civil consequences as deemed appropriate by the courts. Additionally, the Determination references Defence Determination 2016/19, which may have its own set of penalties or consequences for non-compliance. Although the specific penalties are not detailed within the Determination, the Defence Regulation 2016 provides avenues for inquiry and complaint, which could lead to further legal or administrative consequences. Decisions made under this Determination may be subject to the ADF redress of grievance system, and complaints can be made to the Defence Force Ombudsman, both of which could result in further scrutiny or action if the Determination is not adhered to properly.