Defence Determination 2006/40

I, STEVEN RICHARD GRZESKOWIAK, Director General Personnel Policy and Employment Conditions, Defence Personnel Executive, make this Determination under section 58B of the Defence Act 1903.
Dated 12July 2006
S R GRZESKOWIAK
Director General
Personnel Policy and Employment Conditions
Defence Personnel Executive

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1
/
Citation
This Determination is Defence Determination 2006/40, Reserve legal officer's sessional fee.
2
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Commencement
This Determination is taken to have commenced on 29 November 2005.
3
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Amendment
Defence Determination 2005/15, Conditions of Service, as amended,1 is amended as set out in this Determination.
4
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Subparagraph 4.8.5.1.b.iv (Duties attracting a sessional fee)
omit
new
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Subparagraph 4.8.5.1.b.viii (Duties attracting a sessional fee)
insert at the end
ix. / Representationauthorised under regulation 33 of the Defence (Inquiry) Regulations 1985, for a person (including a deceased person) before a Board of Inquiry.
NOTE
1. / Defence Determination 2005/15, as amended to date. For previous amendments see Defence Determinations 2006/1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39. Certain provisions of the Determination have been modified by Determination No.5of2005 and No.1 of 2006, made under section 58H of the Defence Act 1903.

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EXPLANATORY STATEMENT

Defence Determination 2006/40

This Determination amends Defence Determination 2005/15, Conditions of Service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Act). Part 8 of Chapter4 of the Principal Determination sets out provisions dealing with allowances for members of the Reserve Forces of the Australian Defence Force (ADF) and Cadet Forces.

The purpose of this Determination is to expand the rangeof duties for which legal officer's sessional fee is payable to a member of the Reserve Forces, consistent with recent changes to the Defence (Inquiry) Regulations 1985 (the Regulations). Regulation 33 of the Regulations was amended by the Defence (Inquiry) Amendment Regulations 2005 (No.2) with effect from 29 November 2005, to provide that if a person who may be affected by an Inquiry, or their representative, appoints an ADF officer to provide legal representation before a Board of Inquiry, the services of the ADF officer would be made available at Commonwealth expense.

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 29 November 2005, the day from which relevant amendments to the Regulations commenced. The retrospective operation of this Determination will ensure that aReserve officer of the ADF who has provided representation authorised under the Regulations is appropriately recompensed for the time spent away from their private practice.

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

Clause 4 omits a typographical error at the end of subparagraph 4.8.5.1.b.iv of the Principal Determination.

Clause 5 inserts new subparagraph 4.8.5.1.b.ix into the Principal Determination. Subparagraph 4.8.5.1.b.ixprovides that a Reserve legal officer who provides a person with representation authorised under regulation 33 of the Regulations, before a Board of Inquiry, is to be paid a legal officer sessional fee. This gives full effect to the policy that the Commonwealth pays for the services of the Reserve legal officer, who could otherwise be working in a private professional capacity as a barrister or solicitor for the period of their appearance.

The amendment ensures that people who appear or are represented before a Board of Inquiry have access to representation. Previously, this service was only made available in respect of legal representation provided to members of the ADF (including deceased or former members) under subparagraph 4.8.5.1.b.iv of the Principal Determination.

It is not necessary to extend the allowance to legal officers of the Permanent Force as they receive salary for any services that they may be required to provide under the regulations.

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.

The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such person.

Authority: Section 58B of the
Defence Act 1903