Defence Determination 2016/8, Field allowance amendment and Defence Determination 2016/10, Additional recreation leave amendment -Concluded matters [2016] AUSStaCSDLM 251 (12 October 2016)

Instrument	Defence Determination 2016/8, Field allowance– amendment Defence Determination 2016/10, Additional recreation leave–amendment[1]
Purpose	These instruments amend Defence Determination 2005/15 in relation to field allowances and additional recreation leave
Last day to disallow	10 October 2016
Authorising legislation	Defence Act 1903
Department	Defence
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

By virtue of former section 58B of the Defence Act 1903 (Defence Act) and section 7 of the former Legislative Instruments Act 2003, these determinations are disallowable non-legislative instruments.^[2] Section 58B of the Defence Act provided that paragraph 46AA(1)(a) of the Acts Interpretation Act 1901 applied to these determinations such that the provisions of a determination made by the Defence Force Remuneration Tribunal (DFRT) under section 58H of the Defence Act may be incorporated as in force at a particular time or as in force from time to time.

With reference to the above, the committee notes that the instruments substitute the following definitions into Defence Determination 2005/15:

Field service: The same meaning as in DFRT Determination No. 11 of 2013, ADF allowances.
Special service: Means service performed in either of the following circumstances.
a. For the purposes of Division B.12 in DFRT Determination No. 11 of 2013, ADF Allowances.
b. For the purposes of Division B.14 in DFRT Determination No. 11 of 2013, ADF Allowances.

However, neither the text of the instruments nor the ESs expressly states the manner in which DFRT Determination No. 11 of 2013, ADF Allowances (which were made by DFRT under section 58H of the Defence Act) is incorporated.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Defence advised:

With the amendments made to the Legislation Act 2003 in March 2016, Defence was required to remake its principal determination for Australian Defence Force conditions of service to comply. The new principal determination, Defence Determination 2016-19, Conditions of service, commenced on 1 July 2016 and repealed the previous principal determination. Any changes to amending determinations made between March and June 2016 would be of no effect because they related to a repealed principal determination.
Therefore, instead of remaking the amending instruments identified by the committee, Defence is reviewing the new principal Defence determination, and will make any necessary amendments to the principal instrument so that the manner of incorporation is clearly specified in both the instrument itself and the explanatory statement as desired by the committee. This will enable users to understand its operation without the need to rely on specialist legal knowledge or advice, or to consult extrinsic material.
Defence has also reviewed its legislative instrument templates and made the required adjustments in order to ensure the issues the committee raised in the monitor are not repeated in the future.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instruments.

The committee also thanks the minister for her advice that the Department of Defence has reviewed its legislative instrument templates and made adjustments to ensure that where future instruments incorporate documents the manner of incorporation will be clearly specified.

The committee also notes the minister's undertaking that the Department of Defence is reviewing the new principal determination, and will make any necessary amendments to address the committee's concerns about the manner of incorporation of DFRT Determination No. 11 of 2013.

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^[1] The committee notes that the issue raised also applies to Defence Determination 2016/16, Recruit instructors and ADF gap year - educational bonus – amendment [F2016L00543].

^[2] These provisions apply to these instruments as they were made before the commencement of the Acts and Instruments (Framework Reform) Act 2015 on 5 March 2016. Following the commencement of this Act, Defence Determinations are now legislative instruments and are registered on the Federal Register of Legislation.