Defence (Conditions of service) Determination 2020 (No. 29)
This Determination amends Defence (Conditions of service) Determination 2020 (No. 25) (the Principal Determination), and provides stand-alone provisions made under section 58B of the Defence Act 1903 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.
The Determination makes references to sections of the Defence Determination 2016/19, Conditions of service, which is incorporated into the Determination as in force from time to time.
This Determination has the following purposes.
- It provides that a member retains their status as an accompanied member overseas and their overseas conditions of service benefits on compassionate grounds.
- It provides that a member is to be reimbursed education assistance costs for a dependant who is remaining in Australia when the member goes on a long-term posting overseas.
- It amends a typographical error in the Principal Determination to ensure that benefits under that Determination are provided to the correct member.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on the day of registration.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Overseas conditions of service
Section 1 provides the purpose of the Schedule.
Section 2 provides the definitions that apply in the Schedule.
Section 3 identifies the member who is eligible to receive benefits under the Schedule. The member is identified by reference to their unique employee number.
Section 4 provides that the member retains the overseas conditions of service benefits they were eligible for immediately before 20 November 2020. The member is not eligible for any additional benefits that they were not eligible for before that date.the member leaves the posting location at the end of the member’s posting or on 31 January 2021, whichever occurs earlier.
Schedule 2—Education assistance
Section 1 provides the purpose of the Schedule.
Section 2 identifies the member who is eligible to receive benefits under the Schedule. The member is identified by reference to their unique employee number.
Section 3 provides that the member is to be reimbursed $21,298.04 for tuition and boarding costs that have been paid by the member. This amount is what the member would have been eligible for under Chapter 15 Part 6 Division 5 (the Division) of Defence Determination 2016/19, Conditions of service, had the Division applied to the member at the time of the payment, less any contribution the member would have been required to pay. Specifically, the amount consists of $9,809.40 for compulsory tuition fees and $11,488.64 for boarding costs.
Schedule 3—Application amendment and transitional provision
Section 1 amends section 6 of the Principal Determination which provides the member who is eligible to receive benefits under the Determination. This amendment substitutes the unique employee number to correct a typographical error. The provisions under the Principal Determination have been provided to the member with the employee number that has been corrected under this section.
Section 2 provides a transitional provision to ensure that the member who holds the unique employee number as corrected by section 1 of this Schedule is eligible for the benefits provided under the Principal Determination.
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 the following.
- Schedules 1 and 3 – Air Force.
- Schedule 2 – Navy.
The rule maker was satisfied that further external consultation was not required.
Authority: Section 58B of the
Defence Act 1903
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 has the following purposes.
- It provides that a member retains their status as an accompanied member overseas and his overseas conditions of service benefits on compassionate grounds.
- It provides that a member is to be reimbursed education assistance costs for a dependant who is remaining in Australia when the member goes on long-term posting overseas.
- It amends a typographical error in the Principal Determination to ensure that benefits under that Determination are provided to the correct member.
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.
Schedules 1 and 3 of this Determination advances human rights by providing special benefits to a member of the ADF as a condition of service on a compassionate basis. These benefits are in addition to the standard conditions of service benefits available to members of the ADF and are in response to unique compassionate circumstances.
Schedule 2 of this Determination advances human rights by providing assistance with the cost of education to a member of the ADF as a condition of service as a result of the restriction on international travel. These benefits are a standard condition of service that the member would have otherwise been eligible for on a long-term posting overseas.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Acting First Assistant Secretary People Policy Culture