Explanatory Statement
Defence (Payments to ADF Cadets) Determination 2016
Section 62B of the Defence Act 1903
From 1 July 2016, an ADF Cadets payment will no longer be provided for under Defence Determination 2005/15 - Conditions of Service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Act). The Principal Determination, which has recently been remade, removes all provisions relating to ADF Cadets in line with the amendment to the Act made by the Defence Legislation Amendment (First Principles) Act 2015 to commence on 1 July 2016.
The Act inserted new sections 62, 62A, 62B, 62C, 62D, and 62E by the Defence Legislation Amendment (First Principles) Act 2015 which provides for the new arrangements for the direction and administration of ADF Cadets, reflecting the One Defence construct as recommended by the First Principles Review. Section 58B of the Act will no longer have authority to make determinations relating to ADF Cadets.
From 1 July 2016, the CDF, as the administrator of ADF Cadets, has the authority to make determinations by legislative instrument that provide for payments or other pecuniary benefits to or for officers of cadets, instructors of cadets or in respect of members of the families of officers, instructors and cadets by way of grants honoraria, payments for expenses or other means. As is currently the case, a determination made by the CDF can also provide for the recovery of any part of the financial assistance provided under the determination.
The purpose of this Instrument is to set out the authority and conditions for payments and other pecuniary benefits to or for officers of cadets, instructors of cadets or in respect of members of the families of officers, instructors and cadets.
Name of the instrument
Section 1 sets out the manner in which this Instrument may be cited.
Commencement
Section 2 provides that the Instrument commences on 1 July 2016.
Authority
Section 3 provides the authority under subsection 62B(1) of the Defence Act 1903 which this Instrument is made.
Definitions
Section 4 provides definitions applicable to the Instrument.
Eligibility for payments
Section 5(1) provides that an ADF Cadets officer/instructor may apply for a payment where they participate in an ADF cadet activity. This application needs to be in writing to the authorised person. They will not be paid unless they make an application.
Sections 5(2) and (3) provide that an ADF Cadets officer/instructor is entitled to no more than 48 days of payment per financial year for ADF cadet activities. An ADF Cadets officer/instructor must apply to the authorised person for approval of payment where in excess of 48 days is required.
Sections 5(4) and (5) provide that an ADF Cadets officer/instructor must apply for payment before the end of the following calendar month that the ADF cadet activity occurred. An ADF Cadets officer/instructor must apply to the authorised person for approval of a late application.
Amount of payments
Section 6 sets the circumstances when an application is made in respect of a cadet activity that the daily amount payable and other amounts is no more than the amount approved by the VCDF. The provision also specifies that the approved amounts are to be set out in a document signed by the VCDF. This document will be treated as a notifable instrument published on the Federal Register of Legislative Instruments (FRLI), and will also be published on www.cadetnet.gov.au on the day this instrument commences.
Recovery of amounts paid
Section 7 provides for the recovery of an overpayment.
Other benefits
Section 8 sets out circumstances for the payment of other benefits in exceptional circumstances (e.g. in a medical emergency).
Authorised persons
Section 9 gives authority to certain persons as ‘authorised persons’ to make discretionary decisions in relation to payments as prescribed in this instrument.
Legislative instrument
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Commencement
This instrument commences on 1 July 2016 in line with other new administrative arrangement for the ADF Cadets.
Consultation
Extensive consultation with the relevant ADF Cadets organisations across Defence has occurred during the development of this Instrument and other relevant documents. The Office of Best Practice Regulation advised that no further regulatory analysis was required for the Defence Legislation Amendment (First Principles) Act 2015 (OBPR ID number 19027). This Instrument is a consequence of that legislation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Defence (Payment of ADF Cadets) Determination 2016
This Instrument 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 Instrument is to determine the payment of allowances and other pecuniary benefits to or for officer of cadets, instructors of cadets or in respect of members of the families of officers, instructors and cadets.
Human rights implications
Children's freedom of peaceful assembly
This Instrument engages with article 15 of the International Covenant on the Rights of the Child. This article recognises the rights of the child to freedom of expression and peaceful assembly.
As a youth development organisation, the ADF Cadets program bring together people who provide activities in which children and young adults can participate and develop a sense of and appreciation for their community. ADF Cadets payment is a partial payment made as an honorarium, to assist Officers and Instructors of cadets in those activities. It is not claimed for all activity and is not claimed regularly or at all by significant numbers of officers and instructors. This Instrument provides further information about the procedural incentive to ensure that claims are proximate to the activity they assist with, and makes very clear that the payment is an honorarium for activities that are voluntarily performed by officers and instructors of ADF Cadets. Giving clearer information about the nature of benefits provided for these officers and instructors is helpful to ensure transparency and manage expectations of individuals.
Conclusion
This Instrument is compatible with human rights because it advances the protection of human rights.