EXPLANATORY STATEMENT

Defence (Individual benefits) Determination 2023 (No. 2)

This Determination is made under section 58B of the Defence Act 1903 (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 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.

Purpose

The purpose of this Determination is to provide a payout for recreation leave credits accrued by a member of the Australian Defence Force to the member due to exceptional circumstances.

Operational Details

Details of the operation of the Determination are provided at annex A.

This Determination references Defence Determination 2016/19, Conditions of service. Any reference to that determination are incorporated as in force from time to time.

Human rights compatibility

The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.

Review options

Decisions that are made under this Determination may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.

Consultation

Before this Determination was made, consultation was undertaken with Army and the Pay and Administration Centre. The rule maker was satisfied that further consultation was not required.

Annex A

Defence (Individual benefits) Determination 2023 (No. 2)

Operational details

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 Determination has authority under section 58B of the Defence Act.

Section 4 species the purpose of the Determination.

Section 5 identifies the member by reference to their employee identification number.

Section 6 provides a definition of “Defence Determination” which means Defence Determination 2016/19, Conditions of service, as in force from time to time. A definition is also provided for “recreation leave credits” which incorporates a reference to Chapter 5 Part 4 of the Defence Determination, and includes basic, additional, extra and purchased recreation leave.

Section 7 provides that the member is to be paid an amount in lieu of, and equivalent to, the recreation leave credits they have accrued up to and including the date of commencement of this Determination. The amount payable is to be calculated according to section 5.4.44 of the Defence Determination, which provides the method for determining the payout of recreation leave credits for a member, other than a senior officer who transitioned, who is to be paid an amount for all or part of their accrued leave credits and purchased recreation leave credits. The member’s accrued recreation leave credits are to be reduced by the number of recreation leave credits that are paid out under this section.

Section 8 provides that this Determination is repealed on 30 April 2023.

Annex B

Defence (Individual benefits) Determination 2023 (No. 2)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the Determination

The purpose of this Determination is to provide the payout for the recreation leave credits accrued by a member of the Australian Defence Force due to exceptional circumstances.

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.

Assessment of compatibility

This Determination is compatible with human rights as it provides a member a payment in lieu for their accrued recreation leave due to their exceptional circumstance. This payment will allow the member to access the benefit earlier than is required under the relevant provision due to the exceptional circumstance. This payment is made as a condition of their service.

Conclusion

This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.