Defence (Individual payment) Determination 2019
This Determination is made under section 58B of the Defence Act 1903 (the 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. These determinations are also subject to the interpretation principles in the AI Act.
The purpose of this Determination is to provide a payment to a former member of the Australian Defence Force (ADF) who was in receipt of Special Forces disability allowance under Defence Force Remuneration Tribunal (DFRT) Determination No. 5 of 2008, Special Forces Disability Allowance (DFRT Determination 5 of 2008) on 23 September 2015 and was eligible for Special Forces disability allowance under DFRT Determination No. 11 of 2013, ADF Allowances (DFRT Determination 11 of 2013) on 24 September 2015.
On 24 September 2015 DFRT Determination No. 11 of 2015, ADF Allowances – Special Forces – Amendment (DFRT Determination 11 of 2015) repealed DFRT Determination 5 of 2008 and inserted provisions relating to Special Forces disability allowance into DFRT Determination No. 11 of 2013. This change resulted in a reduction in the rate of Special Forces disability allowance for certain members and those members becoming eligible for the payment of other ADF allowances. To support these members to transition to the lower rate of Special Forces disability allowance it was communicated that a transition period of up to five years be provided. This transition period would have allowed affected members to continue to receive the higher allowance rate but not any other ADF disability allowances during the period. However, DFRT Determination 11 of 2015 did not include this transition period.
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 registration.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
Section 4 specifies that this Determination applies to the former member who held the employee number 8217632.
Section 5 sets out that the former member is eligible to a one-off payment in lieu of Special Forces disability allowance. The amount payable to the former member has been calculated taking into consideration all of the following.
- The period that the former member was eligible for Special Forces disability allowance.
- The rate of Special Forces disability allowance that the former member did receive and the rate of the allowance that the former member would have received during the eligibility period, had a transition period been applied to their allowance rate.
- Any additional ADF disability allowances the former member received during the eligibility period that they would not have been eligible for had a transition period been applied.
- Any Workplace Remuneration Arrangement increases that applied, or would have applied, to the allowance rates during the eligibility period.
Section 6 sets out that the former member is eligible to two payments in lieu of recreation leave credits the former member would have accrued had the higher rate of Special Forces disability allowance continued to apply to the former member.
Consultation
Army were consulted during the drafting of this instrument. The rule maker was satisfied that further external consultation was not required.
Authority: Section 58B of the
Defence Act 1903
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 payment to a former member of the Australian Defence Force (ADF) who was in receipt of Special Forces disability allowance under Defence Force Remuneration Tribunal (DFRT) Determination No. 5 of 2008, Special Forces Disability Allowance (DFRT Determination 5 of 2008) on 23 September 2015 and was eligible for Special Forces disability allowance under DFRT Determination No. 11 of 2013, ADF Allowances (DFRT Determination 11 of 2013) on 24 September 2015.
On 24 September 2015 DFRT Determination No. 11 of 2015, ADF Allowances – Special Forces – Amendment (DFRT Determination 11 of 2015) repealed DFRT Determination 5 of 2008 and inserted provisions relating to Special Forces disability allowance into DFRT Determination No. 11 of 2013. This change resulted in a reduction in the rate of Special Forces disability allowance for certain members and those members becoming eligible for the payment of other ADF allowances. To support these members to transition to the lower rate of Special Forces disability allowance it was communicated that a transition period of up to five years be provided. This transition period would have allowed affected members to continue to receive the higher allowance rate but not any other ADF disability allowances during the period. However, DFRT Determination 11 of 2015 did not include this transition period.
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 provides a one off payment to a former members of the ADF who was affected by the changes to Special Forces disability allowance. This payment provides the affected former member with the amount that they would have received had a transition period been in place.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions