EXPLANATORY STATEMENT

Defence Determination 2017/30

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.

This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).

• Chapter 6 sets out provisions dealing with relocations on posting in Australia.
• Chapter 7 sets out provisions dealing with housing and meals.
• Chapter 9 sets out provisions dealing with travel costs in Australia.

This Determination has the following two purposes.

• It provides removal and storage assistance for members who cease to be eligible for the Service residence they live in in their posting location when their dependant has died.
• It amends the provisions relating to the travel of dependants on the death of a member.

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

Section 2 is the commencement provision for the Determination and includes a table setting out the details of the commencement of sections of the Determination. Column 1 of the table sets out the provisions in numbered items, column 2 sets out the commencement and column 3 sets out date/details. Information in column 3 does not form part of the Act, so information can subsequently be inserted in the column (or edited) in a published version of the Determination. Item 1 in the table provides that the whole of this Determination commences on 21 September 2017.

Section 3 provides that this instrument has authority under section 58B of the Defence Act 1903.

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 sets out amendments to the Principal Determination.

Sections 1 and 2 amend table items 1 and 4 of subsection 6.5.29.1 of the Principal Determination. Section 6.5.29 provides the removal provisions between residences within the same posting location within Australia for a member. Table items 1 and 4 provide the removal provisions for a member who is required to vacate a Service residence or accommodation for which rent allowance is payable, for reasons beyond their control. The table items are being amended to include a note that specifies that 'reasons beyond a member's control' does not include the breakdown of the member's marriage or partnership.

Section 3 amends subsection 6.5.75 of the Principal Determination, which provides removal benefits when a member ceases to be a member with dependants. The title of the section is being amended to provide that the section does not apply on the death of the member's dependant. Section 6.5.75A, inserted by section 5 of this Determination, will apply to the members whose dependant has died.

Section 4 omits subsection 6.5.75.3 from the Principal Determination, which provided the storage benefits for a member when they cease to be a member with dependants because their dependant has died. The subsection is being omitted as the provisions are now provided under a new section 6.5.75A which has been inserted by section 5 of this Determination.

Section 5 inserts a new section 6.5.75A into the Principal Determination. When a member who lives in a Service residence ceases to be a member with dependants because their dependant has died, the member ceases to be eligible for the Service residence. The member is required to vacate the Service residence within three months, or a period extended by the CDF, of ceasing eligibility. The new section 6.5.75A provides that these members are eligible for a removal of their furniture and effects at Commonwealth expense within their posting location to new accommodation or to storage. If the member’s furniture and effects are removed to storage the member is eligible for storage at Commonwealth expense under the storage provisions provided in Chapter 6 Part 5 Division 7 of the Principal Determination.

Section 6 amends subsection 7.6.59.3 of the Principal Determination, which provides that when a member ceases to be a member with dependants because their dependant has died, they cease being eligible for the Service residence they live in. The member is to vacate the Service residence within three months of them ceasing to be eligible unless the CDF approves an extended period. This subsection is being amended to include a reference section 6.5.75A which provides the removal and storage provisions for these members.

Section 7 amends subsection 9.3.80.2 of the Principal Determination, which provides dependants may choose to travel by chosen means on the death of the member and that the Commonwealth will pay no more than the cost of travel by the most economical means. The subsection is being amended to provide that the dependant must pay the additional costs of travelling by chosen means before the travel at Commonwealth expense is undertaken.

Section 8 omits subsection 9.3.80.3 from the Principal Determination, which provided that the member must pay any additional travel costs before the travel is approved when a dependant is travelling by chosen means rather than the most economical means to a location after the death of the member. This subsection is now included in subsection 9.3.80.2, as amended by section 7 of this Determination.

Section 9 amends section 9.3.83 of the Principal Determination, which provides the baggage benefits for dependants travelling on the death of a member. This section is being amended to correct the cross reference note.

Criteria are provided for the exercise of discretions under the Principal Determination, 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

Navy, Army and Air Force were consulted and agreed to the changes made by this Determination. No external consultation was undertaken in accordance with section 17 of the Legislation Act 2003 as the amendment is of a minor or machinery nature and does not substantially alter existing arrangements.

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 2017/30, Removal and travel on death of a member or dependant – 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.

• It provides removal and storage assistance for members who are required to vacate a Service residence in their posting location when their dependant has died.
• It amends the provisions relating to the travel of dependants on the death of a member.

Human rights implications

Right to the widest possible protection of the family

The widest possible protection for the family engages Article 10.1 of the International Covenant on Economic, Social and Cultural Rights. Article 10.1 guarantees the widest possible protection and assistance should be accorded to the family.

Legitimate objective: Defence members are posted to perform duty in different locations around Australia.

Reasonable, necessary and proportionate: Defence members with dependants are provided with housing and removals assistance for their family. When a member with a dependant lives in a Service residence and their only dependant dies, the member may be required to vacate their Service residence within a specified period of time so that it can be allocated to a larger family. The member was provided storage at Commonwealth expense for a period of three months to allow the member time to dispose of the dependants' effects. However, no removal assistance was provided if the member was remaining in their posting location which meant that the member was expected to pay for their removal from the Service residence.

This Determination includes a removal provision that will allow a member in this situation to access a removal at Commonwealth expense to accommodation within their posting location. It also removes the three month time limit for storage at Commonwealth expense by enabling these members to access the standard storage provisions. These changes will ensure that these members will not face financial burdens or time constraints during a difficult period of their life.

This Determination also amends the provisions relating to the travel of dependants on the death of a member. These provisions are being amended to clarify that dependants are required to pay additional costs before the travel is undertaken when they choose to travel by means other than the most economical means. The provision formerly stated that the member must pay these costs before the travel was approved, this requirement was not possible.

Conclusion

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

Phillip John Hoglin, Acting Assistant Secretary People Policy and Employment Conditions