Defence (Individual payments) Determination 2020
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. These instruments are also subject to the interpretation principles in the AI Act.
The purpose of this Determination is to provide a payment to members and former members of the Australian Defence Force (ADF) who were 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 were 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2015, DFRT Determination No. 11 of 2015, ADF Allowances – Special Forces – Amendment (DFRT Determination 11 of 2015) repealed DFRT Determination 5 of 2008 and inserted provisions relating to Special Forces disability allowance into DFRT Determination 11 of 2013.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 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 would 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 Determination commences on the day after registration.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
Section 4 provides that a member or former member who has an employee number listed in column A of the table is eligible for a one-off payment of the amount listed in column B of the same item. The amount payable to the member or former member has been calculated taking into consideration all of the following.
- The period that the member or former member was eligible for Special Forces disability allowance.
- The rate of Special Forces disability allowance that the member or former member did receive and the rate of the allowance that the member or 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 member or 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.
- An amount in lieu of recreation leave credits the former member would have accrued had the higher rate of Special Forces disability allowance continued to apply
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 members and former members of the Australian Defence Force (ADF) who were 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 were 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 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 members and former members of the ADF who was affected by the changes to Special Forces disability allowance. This payment provides the affected members and former members 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.
General Angus Campbell, AO, DSC, Chief of the Defence Force