Defence (Individual payment) Determination 2019

Administered by Department of Defence

Legislation au F2019L01579 Not in force Legislative Instrument

Legislation content

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2015 DFRT Determination No. 11 of 2015, ADF Allowances – Special Forces – Amendment (DFRT Determination 11 of 2015) repealed DFRT Determination 5 of 2008 and inserted provisions relating to Special Forces disability allowance into DFRT Determination No. 11 of 2013.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

Overview

The Defence (Individual payment) Determination 2019 was enacted to provide a payment to a former member of the Australian Defence Force (ADF) who was affected by the changes to Special Forces disability allowance. 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, and is subject to the Legislation Act 2003. The primary objective of this Determination is to provide a one-off payment to a former member who was in receipt of Special Forces disability allowance on 23 September 2015 and was eligible for Special Forces disability allowance on 24 September 2015. This payment compensates the former member for the reduction in the rate of Special Forces disability allowance that resulted from the changes, ensuring they receive the amount they would have been entitled to had a transition period been provided.

Scope and Application

The Defence (Individual payment) Determination 2019 applies specifically 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 on 23 September 2015 and was eligible for Special Forces disability allowance under DFRT Determination No. 11 of 2013 on 24 September 2015. This legislation was enacted under section 58B of the Defence Act 1903, and it provides a one-off payment to the former member in lieu of the Special Forces disability allowance they would have received had a transition period been applied following the amendment to the allowance rates. The determination is tailored to rectify the unintended consequences of the transition from DFRT Determination No. 5 of 2008 to DFRT Determination No. 11 of 2015, which resulted in a reduction in the allowance rate without the intended transition period. The payment takes into account the period of eligibility, the actual allowance rate received, and any additional ADF disability allowances that were received during the period, thereby ensuring the former member is compensated for the shortfall resulting from the legislative change.

Key Provisions

The Defence (Individual Payment) Determination 2019 (the Determination) provides specific financial relief to a former Australian Defence Force (ADF) member who was impacted by changes to the Special Forces disability allowance (section 5). This payment is intended to compensate for the reduction in allowance rates that occurred when the Defence Force Remuneration Tribunal (DFRT) Determination No. 11 of 2015, ADF Allowances – Special Forces – Amendment (DFRT Determination 11 of 2015) was enacted, which amended the Special Forces disability allowance provisions from DFRT Determination No. 5 of 2008 and incorporated them into DFRT Determination No. 11 of 2013. The former member, identified by employee number 8217632, is eligible for a one-off payment that accounts for the difference in allowance rates that would have been received if a transition period had been in place. Additionally, the former member is entitled to two payments in lieu of recreation leave credits that would have accrued under the higher allowance rate. The Determination imposes specific obligations on the Australian government, requiring it to make the specified payments to the affected former ADF member (section 5). This includes calculating the amount due based on the period of eligibility for the Special Forces disability allowance, the actual allowance rate received, the rate that would have been applicable with a transition period, any additional ADF disability allowances received, and applicable Workplace Remuneration Arrangement increases. The government must ensure that the former member is compensated accurately and fairly, reflecting the impact of the allowance rate reduction and the absence of a transition period. Breach of the obligations set out in the Determination could result in legal consequences for the government, including potential claims for compensation by the former member. While the Determination itself does not explicitly outline specific penalties or offences for non-compliance, the failure to make the required payments could be challenged in court. The former member may seek remedies under the Administrative Appeals Tribunal or other relevant legal avenues, potentially leading to court-ordered payments or other legal consequences. The seriousness of non-compliance could also prompt internal or external reviews to ensure adherence to the Determination's provisions.

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Defence Law
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Determination
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.