EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Pay-related Allowances) Determination 2014
Determination of pay-related allowances
The Military Rehabilitation and Compensation Act 2004 (the Act) provides for compensation and other benefits to be provided for current and former members of the Defence Forces who suffer a service injury or disease.
Subsection 11(1) of the Military Rehabilitation and Compensation Act 2004 (the Act) requires the Defence Minister to make a written determination specifying which allowances paid under the Defence Act 1903 (the Defence Act) are pay-related allowances for the purposes of the Act.
The determination of an allowance as “pay-related” permits the allowance to be taken into account as part of the normal earnings and actual earnings of members of the Defence Force who seek compensation under the Act.
Clause 1 cites the full title of the Determination.
Clause 2 specifies that this Determination commences on the day after it is registered.
Clause 3 provides the authority under which this Determination is made, subsection 11(1) of the Act.
Clause 4 defines terms used throughout the Determination.
Clause 5 specifies the allowances and the dates on which they are taken to be pay-related allowances for the purposes of subsection 11(1) of the Act. The Defence Force Remuneration Tribunal determined these allowances under section 58H of the Defence Act as part of Australian Defence Force (ADF) allowance reform and simplification. This reform has seen the rolling of allowances into a single allowance framework.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The Department of Veterans' Affairs and the Australian Public Service Commission were consulted on the proposed changes. The Office of Best Practice Regulation was consulted and they advised that a regulation impact statement is unnecessary for this Determination as the amendments it makes are minor and/or machinery. The making of this instrument also honours an undertaking to determine maritime allowance, made to potentially eligible applicants for compensation under the Act.
The application of this Determination to the allowances for periods retrospective to the day it is made, does not affect the rights of any person (other than the Commonwealth) so as to disadvantage that person or impose liabilities on any person (other than the Commonwealth) in respect of anything done or omitted to be done before the date that this Determination is registered, and so does not breach subsection 12(2) of the Legislative Instruments Act 2003. It ensures that benefits based on pay-related allowances can be paid to claimants for compensation.
Authority: Section 11(1) of the
Military Rehabilitation and
Compensation Act 2004
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Military Rehabilitation and Compensation (Pay‑related Allowances) Determination 2014
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
This Determination specifies which allowances, paid under the Defence Act 1903, are pay-related allowances for the purposes subsection 11(2) of the Military Rehabilitation and Compensation Act 2004.
Human rights implications
Right to the highest attainable standard of physical and mental health
The protection of a person's right to health engages Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12 guarantees the right of everyone to the highest attainable standard of physical and mental health.
Legitimate objective: This Determination engages the specific rights in paragraph 12.2(d) of ICESCR. It ensures that current and former ADF members are provided with regular compensation payments while they are incapacitated for service as a result of a service injury or disease. This ensures they are supported to regain health in the event they lose the capacity to perform their normal duties due to a service injury or disease.
Reasonable, necessary and proportionate: Defence sometimes requires its members to perform duties of a dangerous nature. In the event that a member becomes ill or injured as a result of performing their duties, and is unable to perform those duties, it is appropriate that they are compensated during their rehabilitation. This Determination lists the ADF allowances that are pay-related for the purpose of providing appropriate compensation support instead of the members' normal remuneration.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Stuart Robert, Assistant Minister for Defence