Defence Determination 2017/31, Overseas education assistance and benchmark schools – amendment

Administered by Department of Defence

Legislation au F2017L01225 In force Legislative Instrument

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EXPLANATORY STATEMENT

Defence Determination 2017/31

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 living and working on long-term posting overseas for members of the Australian Defence Force (ADF).

This Determination has the following two purposes.

  • To provide the education assistance benefit for a member who is posted overseas and directed to live in the USA and whose child attends a pre-school or kindergarten in a location where there is no suitable benchmark school.
  • To provide the education assistance benefit for a member posted overseas and directed to live in the USA whose child attended a pre-school or kindergarten after 2 June 2016 and before the commencement of this Determination.

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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, section 1 amends 15.6.8 to make clear that the division applies to a member who has a child who is their dependant. Section 2 amends subsection 15.6.10.1B 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. The table provides the amount to be reimbursed to a member if the CDF decides there is no suitable benchmark school at a member's posting location in the USA. The section has been amended to include the reimbursement of compulsory tuition fees for a member's child who is a dependant who attends a pre-school or kindergarten. Sections 3 and 4 amend two references in Annex 15.6.A, Benchmark schools.

Schedule 2 inserts a transitional provision. The provision provides that a member on long-term posting in the USA may be reimbursed compulsory tuition fees paid for their child who is a dependant who attend a pre-school or kindergarten between 2 June 2016 and the commencement of this Determination.

Consultation

Defence Personnel Support at the Australian Embassy in Washington DC and International Policy Division have been consulted and support the proposed changes.

 

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 2017/31, Overseas education assistance and benchmark schools – 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 makes technical amendments to Defence Determination 2016/19, Conditions of service.

The purpose of this Determination is to provide the education assistance benefit for a member posted overseas and directed to live in the USA and whose child attends a pre-school or kindergarten in a location where there is no suitable benchmark school. The Determination also provides the education assistance benefit for a member posted overseas and directed to live in the USA whose child attended a pre-school or kindergarten after 2 June 2016 and before the commencement of this Determination.

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.

The Determination provides for a member to be reimbursed compulsory tuition fees for a child who attends a pre-school or kindergarten where a suitable benchmark school is not available.

The Determination also provides for a member to be reimbursed compulsory tuition fees if the member's child was attending a pre-school or kindergarten in the USA between 2 July 2016 and the commencement of this Determination.

Conclusion

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

Jay Andrew Clarke, Acting Assistant Secretary People Policy and Employment Conditions

 

Overview

Defence Determination 2017/31 was enacted to address specific gaps in the education assistance benefit for members of the Australian Defence Force (ADF) posted overseas, particularly in the United States. This determination, made under section 58B of the Defence Act 1903, amends Defence Determination 2016/19, Conditions of Service, to ensure that members and their families are not disadvantaged due to the unique circumstances of living and working overseas. The policy objective is to provide financial support for compulsory tuition fees for children attending pre-school or kindergarten in locations where benchmark schools are not available, as well as to address a transitional period from 2 June 2016 up until the commencement of this Determination. This legislation ensures that ADF members receive the necessary education assistance to maintain a standard of living comparable to that in Australia, thus upholding their rights under Article 13 of the International Covenant on Economic, Social and Cultural Rights.

Scope and Application

The Defence Determination 2017/31 amends Defence Determination 2016/19, Conditions of service, made under section 58B of the Defence Act 1903. This Determination applies to members of the Australian Defence Force (ADF) who are posted overseas and directed to live in the United States of America. Specifically, it addresses the education assistance benefit for these members, ensuring they are not disadvantaged due to their overseas posting. The Determination clarifies that the education assistance benefit applies to members who have a child who is their dependant, and it includes reimbursement for compulsory tuition fees for children attending pre-school or kindergarten, even when there is no suitable benchmark school available at the posting location. It also includes a transitional provision for members whose children attended pre-school or kindergarten between 2 June 2016 and the commencement of this Determination, ensuring they receive the education assistance benefit retroactively. The application of this Determination is confined to members of the ADF and their dependants who are living in the USA due to their service obligations. It does not extend to other geographical locations or other categories of personnel. This Determination is compatible with human rights, particularly the right to the enjoyment of just and favourable conditions of work and the right to education as recognised in international instruments.

Key Provisions

The Defence Determination 2017/31 amends Defence Determination 2016/19, Conditions of service, to enhance the education assistance benefits for Australian Defence Force (ADF) members posted overseas, particularly in the USA. Section 1 of the Determination specifies how it may be cited, while Section 2 outlines the commencement date of 21 September 2017. Section 3 establishes the authority under which this instrument is made, citing section 58B of the Defence Act 1903. The primary amendments are found in Schedule 1, which modifies section 15.6.8 to clarify that the division applies to members with dependant children and adjusts subsection 15.6.10.1B to include reimbursement for compulsory tuition fees for dependant children attending pre-schools or kindergartens when there is no suitable benchmark school. Furthermore, Schedule 1 revises Annex 15.6.A, Benchmark schools, to reflect these changes. Schedule 2 introduces a transitional provision allowing reimbursement of compulsory tuition fees for children attending pre-schools or kindergartens between 2 June 2016 and the commencement of this Determination. The Defence Determination imposes several obligations on the ADF and its members. Members posted overseas in the USA, with children attending pre-schools or kindergartens, are now eligible for reimbursement of compulsory tuition fees if there is no suitable benchmark school available at their posting location. This reimbursement extends to children who attended such institutions between 2 June 2016 and the commencement of this Determination. The Chief of Defence Force (CDF) must decide on the absence of a suitable benchmark school and the amount to be reimbursed according to the table provided. Additionally, the Defence must ensure that the necessary adjustments to the reimbursement process are implemented and communicated to all relevant personnel. Breaches of the provisions set out in the Defence Determination 2017/31 may have legal consequences. However, the Determination does not explicitly detail specific offences, penalties, or consequences for non-compliance. The penalties for breaches of Defence determinations are generally governed by the Defence Act 1903 and other relevant legislation. Typically, non-compliance could result in disciplinary action against ADF members, including possible administrative or legal proceedings. The Defence Act may also provide for civil or criminal penalties in cases of serious misconduct or breaches of statutory duties. The exact consequences would depend on the nature and severity of the breach, as well as the specific provisions of the Defence Act and other applicable laws.

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Administrative Law
Education Law
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Commencement Provisions
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.