EXPLANATORY STATEMENT

Defence Determination 2016/21

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 legislative instruments subject to the Legislation Act 2003. These instruments are also subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.

In making this Determination, the rule-maker has taken the Caretaker Conventions into account. The amendments made to the Principal Determination do not represent major policy decisions that are likely to commit an incoming government, and do not commit the government to major contracts or undertakings. The amendments use existing funding and adjustment methodologies that increase the efficiency of administration of benefits. As such, the amendments are consistent with the continued observance of the Caretaker Conventions.

This Determination amends Chapter 15 of the Principal Determination, which sets out provisions dealing with living and working on long-term posting overseas for members of the Australian Defence Force (ADF).

The purpose of this Determination is to provide a benchmark school for members posted overseas and directed to live on Manhattan Island, New York.

Benchmark schools are nominated to set the 'benchmark' for the amount of education assistance to be reimbursed to members for their children's education whilst posted overseas. For members posted to the USA the benchmark school is the government school where the member lives unless the Chief of Defence Force decides that a suitable benchmark school is not available when the member has been directed to live in a district. In the past a limit has been set for the maximum amount of reimbursement for compulsory tuition fees for these members. To avoid having to continually update the set amount to stay in line with inflation, this Determination sets the Dwight School as the benchmark school for members directed to live on Manhattan Island.

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

Section 2 of this Determination provides that the Determination commences 2 June 2016.

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

Section 4 amends the table in section 15.1.5 of the Principal Determination, which provides where a member's posting location is if directed or not directed to live on Manhattan Island when posted to a long-term position on Manhattan Island. This section was formerly solely for the purpose of post index-related benefits. Section 4 provides that the table also applies to Annex 15.6.A which provides the benchmark school for different posting locations. This is consequential upon section 9 of this Determination which adds Manhattan Island to the list of benchmark schools under Annex 15.6.A.

Section 5 amends the definition for 'benchmark school' under section 15.6.5 of the Principal Determination. The section formerly defined a benchmark school in terms of the amount that may be reimbursed to a member for compulsory tuition fees for their child to attend school at the overseas posting location. Section 5 re-defines benchmark school to include that it is an actual school on which the reimbursable amount for fees is based.

Section 6 amends subsection 15.6.10.2 of the Principal Determination, which provides that the compulsory tuition fees levied by a benchmark school set the maximum amount of assistance that may be reimbursed to a member at the posting location. Section 6 inserts two exceptions to this rule which provide that the reimbursable amounts may differ if member has been directed to live in the District of Columbia or the Chief of Defence Force decides there is no suitable benchmark school at the posting location in the USA only. These exceptions are consequential upon section 7 of this Determination.

Section 7 substitutes subsection 15.6.11.1 of the Principal Determination, which provides the amount that may be reimbursed to a member for compulsory tuition fees paid for their child to attend school at the overseas posting location, based on the benchmark school for their posting location. Section 7 inserts an exception to the provided amount. The exception provides that the amount is reduced if the member's child will not turn five before 31 December in the school year. This provision was formerly located under subsection 15.6.20.4 but removed by section 8 of this Determination.

Section 7 also adds two new subsections after subsection 15.6.11.1 of the Principal Determination. The first provides the reimbursable amount of compulsory tuition fees for a member child to attend school at the overseas posting location if the member has been directed to live in the District of Columbia. The second provides the reimbursable amount if the Chief of Defence Force decides there is no suitable benchmark school at a member's posting location in the USA. Both provisions were formerly located under subsection 15.6.20.2 but removed by section 8 of this Determination.

Section 8 substitutes subsection 15.6.20 of the Principal Determination, which provides the education assistance provided to a member posted to a location in the USA for their child to attend school at the posting location. Benefits relating to compulsory tuition fees for children attending pre-school, primary and secondary school have been re-located by this Determination because they were located in a Division that provides additional benefits. The provisions were alternative rates of reimbursement for members at a posting location where a benchmark school does not apply and not an additional amount. The provisions are now located under subsections 15.6.11.1A and 15.6.11.1B and Annex 15.6.A of the Principal Determination, consequential upon sections 7 and 9 of this Determination.

Section 9 amends Annex 15.6.A of the Principal Determination, which provides a list of schools at overseas posting locations that are used as the benchmark for providing members with education assistance for their children. Section 9 substitutes the entry for USA which now includes the Dwight School as the benchmark school for members who are directed to live on Manhattan Island, New York.

Criteria are provided for the exercise of discretions under both the current and new  Principal Determinations, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Consultation within Defence has been extensive in developing this Determination. The Directorate of Attaché Overseas Management identified the need for a benchmark school for those ADF members directed to live on Manhattan Island. The three Services have all confirmed support for the change and that a funding line is available now and into the foreseeable future.

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 2016/21, Overseas education assistance – 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

The purpose of this Determination is to provide a benchmark school for members posted overseas and directed to live on Manhattan Island, New York.

Benchmark schools are nominated to set the 'benchmark' for the amount of education assistance to be reimbursed to members for their children's education whilst posted overseas. For members posted to the USA the benchmark school is the government school where the member lives unless the Chief of Defence Force decides that a suitable benchmark school is not available when the member has been directed to live in a district. In the past a limit has been set for the maximum amount of reimbursement for compulsory tuition fees for these members. To avoid having to continually update the set amount to stay in line with inflation, this Determination sets the Dwight School as the benchmark school for members directed to live on Manhattan Island.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

This Determination advances the rights under Article 13 of the International Covenant on Economic, Social and Cultural Rights. Article 13 recognises the right of everyone to education.

Defence provides education assistance to members' posted overseas to assist the member and their family to not suffer a disadvantage because of the requirement for the member to live and work overseas. Benchmark schools are nominated to set the 'benchmark' for the amount of education assistance to be reimbursed to members for their children's education whilst posted overseas. This Determination provides a benchmark school for members who are directed to live on Manhattan Island. It enables them to be reimbursed compulsory tuition fees for sending their children to a private school. This is because of the poor quality of public schools in the area. This Determination also relocates provisions that were previously incorrectly placed under a Division specified as additional benefits.

Conclusion

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

Tyson Paul Sara, Director General People Policy and Employment Conditions