Defence Determination 2015/11, Removal Amendment

Defence Determination 2015/11, Removal – amendment

I, JOHN WILLIAM GEERING, Director General People Policy and Employment Conditions, make this Determination under section 58B of the Defence Act 1903.
Dated 26 March 2015
J W GEERING
Director General
People Policy and Employment Conditions
Defence People Group

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1 Citation

1. / This Determination is Defence Determination 2015/11, Removal – amendment.
2. / This Determination may also be cited as Defence Determination 2015/11.

2 Commencement

This Determination commences on the date of signature.

3 Amendment

Defence Determination 2005/15, Conditions of Service, as amended,1 is amended as set out in this Determination.

4 Subclause 6.6.4.1 (Members entitled to removal), table item 8

at the end of table item 8, insert
9. / is a gap year participant with a posting for less than six months / Division 4, Postings or deployments, clause 6.6.23C.
10. / is a gap year participant with a posting for six months or more / Division 4, Postings or deployments, clause 6.6.23A.

5 Clause 6.6.23B (Posting of member with dependants (unaccompanied))

at the end of clause 6.6.23B, insert

6.6.23C Removal of gap year members

1. / In this clause, ADF gap year means a program of up to 12 months in duration, for members of the Australian community to experience military training and lifestyle on a Permanent Force or Reserve Force placement.
See: Military Personnel Policy Manual, Part 2 Chapter 4
2. / This clause applies to a member who is participating in the ADF gap year and meets either of the following conditions.
a. / The member is posted for less than six months.
b. / The member is posted for six months or more and both the following apply.
i. / A removal has been deferred until after the date of posting.
ii. / The member has less than six months to serve at the post.
Note: Gap year members are not subject to the limitations under clause 6.6.30, Removal deferred until after posting date.
Related Information:
1. A gap year member who is posted for six months or more and to whom paragraph 6.6.23C.2.b does not apply, may be entitled to a removal under clause 6.6.23A, Posting of six months or more.
2. Members in this situation may also be entitled to storage. See Division 7 clause 6.6.47, Newly enlisted members.
3. / The CDF may grant a member a removal at Commonwealth expense from the losing posting location to the gaining posting location. In making this decision the CDF must consider why the member is otherwise excluded from having a removal entitlement.
4. / A removal granted under this clause is subject to the limitations set out in subclause 6.6.23A.2.
See: Clause 6.6.23A, Posting of six months or more

6 Clause 6.6.30 (Removal deferred until after posting date), table item 2

after 'next posting', insert
Exception: A member participating in the ADF gap year program may be eligible for a removal under clause 6.6.23C.
See: Clause 6.6.23C, Removal of gap year members
NOTE
1. / Defence Determination 2005/15, as amended to date. For previous amendments see Note
to Defence Determination 2015/1 and amendments made by Defence Determinations
2015/1, 2, 3, 4, 5, 6, 7, 8, 9 and 10.

EXPLANATORY STATEMENT

Defence Determination 2015/11

This Determination amends Defence Determination 2005/15, Conditions of service (the Principal Determination), 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 (AIA Act). Determinations made under section 58B of the Defence Act are disallowable non-legislative instruments and are subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.

Chapter 6 of the Principal Determination sets out provisions dealing with removals for members of the Australian Defence Force (ADF).

This Determination provides a new arrangement that may be used to grant a removal to members participating in the ADF gap year, who would not otherwise have a removal entitlement. The ADF gap year is a program of up to 12 months in duration, for members of the Australian community to experience military training and lifestyle.

Clause 1 of this Determination sets out the manner in which this Determination may be cited.

Clause 2 of this Determination provides that the Determination commences on the date of signature.

Clause 3 specifies that the amendment is made to the Principal Determination, as amended.

Clause 4 inserts new table items 9 and 10 into subclause 6.6.4.1 of the Principal Determination. The table is an index to the removal arrangements provided in Chapter 6 Part 6 of the Principal Determination. The new items reflect the new removal type inserted by clause 5 of this Determination.

Clause 5 inserts clause 6.6.23C into the Principal Determination. The new clause sets out removal arrangements for ADF gap year members who are posted to another location. Members are not usually entitled to a removal for postings of less than 6 months duration. The gap year program typically posts members for periods of less than six months. It is not considered appropriate to deny these members a removal because the nature of the gap year program may mean they post more frequently. Additionally, a Permanent Forces member who defers a removal at the beginning of a posting that is 6 months or more may only do so up until 6 months before their posting ends. Clause 5 provides that these limitations do not apply to gap year members.

Clause 6 amends the table in clause 6.6.30 of the Principal Determination, which provides that a removal may be granted to a member who defers a removal at the beginning of their posting. A member ceases to be eligible for the deferred removal when there is less than 6 months left to serve at the posting location. Clause 6 provides an exception to this rule for ADF gap year members.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions are subject to merits review under the ADF redress of grievance system, including an appeal to the Defence Force Ombudsman.

Authority: Section 58B of the
Defence Act 1903

Statement of Compatibility with Human Rights

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

Defence Determination 2015/11, Removal – amendment

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 amends Defence Determination 2005/15, Conditions of Service.

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.

The ADF gap year program is designed to allow young community members to experience a military lifestyle at a time in their life when they may be considering their future options. Regular postings to different locations is a significant aspect of that lifestyle, and some aspect of that ought to be included in the gap year program to give a realistic flavour to the experience.

If members are to be sent to new locations as part of the program it could be difficult for them to personally bear the costs. This is especially true as the recruits to the program are young and may not have significant financial resources of their own. This Determination provides that the members can have a removal of their personal effects to the new location at Commonwealth expense.

Conclusion

This Determination is compatible with human rights because it advances the protection of human rights.

John William Geering, Director General People Policy and Employment Conditions