EXPLANATORY STATEMENT
Defence Determination 2016/39
This Determination amends Defence Determination 2016/19, 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.
Chapter 15 of the Principal Determination sets out provisions dealing with conditions of service for members of the Australian Defence Force (ADF) living and working on a long-term posting overseas.
This Determination has the following two purposes.
- To provide the current amount a member contributes towards overseas public transport costs.
- To provide the current amount a member contributes towards their child's overseas school transport costs.
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 on 15 December 2016.
Section 3 provides that the authority for the instrument is under section 58B of the Defence Act 1903.
Section 4 specifies that the amendment is made to the Principal Determination, as amended.
Sections 5, 6 and 7 amend subsection 15.3.7 of the Principal Determination, which provides for reimbursement of public transport costs in an overseas location. The member contribution amount for public transport is reviewed annually based on the cost of public transport in Canberra. This amendment provides the current contribution amount. It also simplifies the rules and administration by removing the table of rates to be applied during specified dates.
- Section 5 omits definitions in subsection 15.3.7.2. These definitions are no longer required.
- Section 6 restructures subsection 15.3.7.3 and updates the contribution rate.
- Section 7 updates the calculation in the table at subsection 15.3.7.4.
Sections 8 amends subsection 15.6.11 of the Principal Determination, which provides for reimbursement of school transport costs for dependants in an overseas location. The member contribution amount for school transport is reviewed annually based on the cost of school transport in Canberra. This amendment omits the definitions in subsection 15.6.11.1 as they are no longer required. It provides the current contribution amount. It also simplifies the rules and administration by removing the table of rates to be applied during specified dates.
Consultation
Consultation is not considered necessary for the Public Transport and School Transport costs adjustment process as this falls within the bounds of routine house keeping of an established benefit. Where the adjustment results in a major change to the rate of contribution, the overseas posts would be provided with advance notification of the pending change.
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 2016/39, Public and school transport costs – 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 has the following two purposes.
- To provide the current amount a member contributes towards overseas public transport costs.
- To provide the current amount a member contributes towards their child's overseas school transport costs.
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.
Legitimate objective: This Determination adjusts member contribution rates towards public transport costs and school transport costs, for members posted overseas.
Reasonable, necessary and proportionate: A policy principle underpinning many aspects of ADF member overseas conditions is that members posted to locations that are more expensive to live in than Australia should not be disadvantaged by those expensive local conditions and the Commonwealth should provide a subsidy to the member. Transport cost benefits are examples of the application of this policy.
Members in Australia are not ordinarily reimbursed their costs of getting to work, or the costs of their children getting to school. It is a long-standing industrial principle that these are private expenses. The public transport and school transport benefits do pay for these expenses, but the member is required to make a contribution. The contribution for public transport costs and school transport costs is based on the Australian public transport cost (with Canberra's costs chosen as a benchmark, as there is some fluctuation between States).
The requirements on members to contribute towards these benefits ensure that they do not receive a 'windfall gain' by being posted to an expensive overseas location, but have approximate parity with their working conditions in Australia.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Lisa Annette Arnold, Acting Assistant Secretary People Policy and Employment Conditions