EXPLANATORY STATEMENT

Defence Determination 2017/38

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 (AI 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 AI 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 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
• Chapter 3 sets out provisions dealing with salaries and bonuses.
• Chapter 5 sets out provisions dealing with leave.
• Chapter 6 sets out provisions dealing with relocations on posting in Australia.
• Chapter 12 sets out provisions dealing with overseas conditions of service.
• Chapter 14 sets out provisions dealing with relocating to or from long-term posting overseas.
• Chapter 15 sets out provisions dealing with living and working on long-term posting overseas.
• Chapter 16 sets out provisions dealing with overseas hardship locations.

This Determination has the following three purposes.

• It makes amendments to the Principal Determination consequential to changes made by Defence Determination 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances) amendment (Defence Determination 2017/18). Defence Determination 2017/18 gave effect to the measure handed down on 09 May 2017 as part of the 2017-18 Budget as it applies to the ADF. Budget Measure – Budget Paper No.2, 2017-18, Part 2: Expense Measures was a Cross Portfolio item titled ‘Overseas Allowances for Australian Government Employees – efficiencies’ (the Review).
• It removes a redundant provision to freight foodstuffs to Vietnam.
• It makes a number of technical amendments to the Principal 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 2 November 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 consequential to Defence Determination 2017/18.

Sections 1 to 6, 8 to 11, 14 to 16 and 18 to 20 amend various sections within the Principal Determination to include or amend references to various provisions that have been inserted or amended by Defence Determination 2017/18.

Section 7 inserts an administrative note into section 6.2.4 of the Principal Determination, which provides that members who are on a long-term posting overseas are not eligible for a reimbursement for the financial loss of selling a vehicle under section 6.2.4. The provisions for members posted before 1 July 2017 are set out in section 14.3.14 of the Principal Determination. Members who were posted on or after 1 July 2017 are no longer be eligible for the reimbursement. The change aligns with the outcomes of the Review.

Sections 12 and 13 amend section 14.3.15 of the Principal Determination, which provides for the storage of vehicles at Commonwealth expense when a member is on long-term posting overseas. This section is being amended to remove reference to the sale of a vehicle. The provisions relating to the sale of a vehicle for members posted before 1 July 2017 is provided under section 14.3.14 of the Principal Determination.

Section 17 substitutes subsection 15.3.40.8 of the Principal Determination, which provides for the payment of overseas living allowances for unused accrued leave credits when the member is on leave in Australia between overseas postings. This provision is being amended to specify that the payment of the allowances for accrued leave only applies to members posted before 1 July 2017. This provision does not apply to members posted on or after 1 July 2017. The change aligns with the outcomes of the Review.

Schedule 2 sets out amendments to the Principal Determination

Schedule 1 amends subsection 3.7.3.2 of the Principal Determination by removing a see note that was inserted into the section by Defence Determination 2017/18. The see note was included in the wrong section of the Principal Determination and is being included in the correct section of the Principal Determination by section 4 of Schedule 1.

Sections 2, 3, 4 and 16 amend sections 14.2.1, 14.5.4 and 16.5.6 of the Principal Determination. These sections have been amended to replace the Directorate name of "Integrated Travel Solutions" with "Defence Travel".

Section 5 amends an administrative note in section 14.5.4 of the Principal Determination, which sets out the settling out provisions for members leaving an overseas posting location. This section amends a typographical error by replacing the term "settling-in" with the correct term of "settling-out".

Sections 6 and 8 amend sections 15.2.2 and 15.2A.2 of the Principal Determination, which provide the contents for Chapter 15 Part 2 and Part 2A. These sections are being amended to remove references to Annexes that are no longer provided in the Parts.

Section 7 omits section 15.2.39 from the Principal Determination which provided that a member on long-term posting in Vietnam may be reimbursed airfreight costs to transport essential food to Vietnam. This section is no longer required due to the improved quality of food available in Vietnam.

Section 9 amends an administrative note in subsection 15.3.70.4 of the Principal Determination by replacing the acronym "DFAT" with the full Department name of the Department of Foreign Affairs and Trade.

Sections 10 to 12 amends sections 15.7.1A and 16.5.4 of the Principal Determination to correct typographical errors by replacing the term "Division" with "Part".

Section 13 amends subsection 16.4.11.2 of the Principal Determination, which sets out criteria that the decision-maker must consider when approving assisted leave travel to a country that is different to the specified countries. The subsection has been amended to provide that the decision-maker must consider if there are any travel restrictions in place on the country.

Section 14 amends subsection 16.4.12.3 of the Principal Determination, which provides what forms of written evidence may be provided for proof of travel. The subsection is being amended to clarify what written evidence may be considered as evidence.

Section 15 substitutes section 16.4.14 of the Principal Determination, which provides that the decision-maker may approve an alternative leave centre when a specified leave centre ceases to be suitable. The section has been revised to clearly set out when the change in leave centre can be made. It has also directly confers the decision-making power to the Director Military Conditions and Housing Policy.

Section 17 amends subsection 16.8.3.1 of the Principal Determination which sets out which members are eligible for the payment of allowances for selected Defence Attachés. The subsection is being amended to specify that the allowance is payable to members who are appointed to the positions of Defence Attaché Kabul or Defence Attaché Baghdad.

Section 18 amends section 16.8.5 of the Principal Determination which sets out the attraction allowance for members posted to Papua New Guinea. The section is being amended to provide that the annual allowance is payable to the member on a pro rata fortnightly basis.

Consultation

Consultation and agreement with International Policy Division was undertaken in relation to Schedule 2 section 6.

No external consultation was undertaken in relation to this Determination in accordance with section 17 of the Legislation Act 2003 before this Determination was made as it is a minor or machinery nature and does not alter existing arrangements. It makes minor amendments and technical adjustments.

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 2017/38, Overseas consequential and miscellaneous amendments

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

• It makes amendments to the Principal Determination consequential to changes made by Defence Determination 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances) amendment (Defence Determination 2017/18). Defence Determination 2017/18 gave effect to the measure handed down on 09 May 2017 as part of the 2017-18 Budget as it applies to the ADF. Budget Measure – Budget Paper No.2, 2017-18, Part 2: Expense Measures was a Cross Portfolio item titled ‘Overseas Allowances for Australian Government Employees – efficiencies’.
• It removes a redundant provision to freight foodstuffs to Vietnam.
• It makes a number of minor technical amendments to the Principal Determination.

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.

This Determination does not engage any applicable rights or freedoms. It aligns the Principal Determination and references consequential to the changes made by Defence Determination 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances) amendment.

Conclusion

This Determination is compatible with human rights because it does not engage any applicable human rights or freedoms.

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