EXPLANATORY STATEMENT

Defence Determination 2017/45, Removal to a personal location and the Puckapunyal housing trial – amendment

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.

The Defence Determination 2016/19, Conditions of service is the main Determination authorising Australian Defence Force (ADF) conditions of service within Australia and overseas. It deals with a wide range of ADF conditions of service.

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

• Chapter 6, which sets provisions dealing with relocations on posting in Australia.
• Chapter 7, which sets out provisions dealing with housing and meals.
• Chapter 8, which sets out provisions dealing with members and their dependants.

This amending Determination has the following purposes.

• To remove the restriction that a removal for compassionate purposes can only be undertaken at the same time as a member's posting removal. This change will allow a compassionate removal to be undertaken at any time.
• To remove cost limitations on a removal for compassionate purposes to ensure that a member is not financially disadvantaged when their dependants relocate to a personal location for compassionate reasons.
• To expand the rules relating to removal of a member's dependants to another location for the purposes of undertaking specified employment or study. The removal for employment or study provisions were previously in the same section as the removal for compassionate purposes and are now provided in a separate section to allow greater flexibility between the two reasons for a removal.
• To implement a housing trial for members posted to the Puckapunyal Military Area. The housing trial will allow members to access housing assistance in an extended posting location. This is to enable a member's spouse or partner to engage in specified employment or study, or for a special needs dependant to access professional services, and will allow the member and their dependants to remain together in the one location.

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

Section 2 provides that this instrument commences on 11 January 2018.

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 amends Defence Determination 2016/19, Conditions of service.

This Schedule as amended implements the changes to compassionate removal. The amendments also provide removal benefits for a member's dependants if it is necessary for the member's spouse or partner to undertake specified employment or a specified period of study in the personal location.

Section 1 substitutes section 6.5.19 of the Principal Determination with two new sections, sections 6.5.19 and 6.5.19A.

• The current section 6.5.19 sets out provisions dealing with compassionate removals to a personal location where benefits are provided. It described two situations, where a member's dependants are removed for compassionate reasons, and where they are removed to enable the member's spouse or partner to continue in employment or study.
• The current section 6.5.19 also sets out cost restrictions that applied to both removal situations. The formula for calculation of the benefits produced no benefit if the member was not being removed at the same time as the dependants. This was not explicitly stated.
• The new section 6.5.19 provides compassionate removals to a personal location where benefits are provided. It contains the material previously set out in subsections 6.5.19.1 and 6.5.19.2. The rules relating to removals for study or employment have been removed from this section and are now provided in the new section 6.5.19A. Other changes to section 6.5.19 are as follows.
  • Special cost restrictions (the former subsections 6.5.19.4 to 6.5.19.6) that were placed on compassionate removals in some circumstances have been removed.
  • Requirements that the compassionate removal occur at the same time as the member's removal to a new posting location have been removed. The new arrangements make compassionate removals more broadly available to members and their dependants.
  • The power to grant additional payments in cases of financial hardship will be removed. With the removal of cost restrictions on compassionate removals the provision is no longer required.
• The new section 6.5.19A covers removal to a personal location to enable a member's spouse or partner to continue in, or commence, specified employment or study. The new section contains revised rules in subsections 6.5.19.3 to 6.5.19.7. The revised rules include the following.
  • There is a new requirement that the dependants' removal occur within a three month period before or after the member's posting removal. A CDF discretion has been included to allow an extension of this three month removal period when it is considered reasonable.
  • The provision has been expanded to provide a removal at Commonwealth expense to for the member's spouse or partner to commence specified employment or study. Previously a removal would only have been provided if the member's spouse or partner was continuing employment or study.
  • It has been made clear that a removal under this section has two components. The member has a limited removal to their new posting location and the member’s furniture and effects are removed to the personal location.

Section 2 substitutes subparagraph 6.5.47.4.a.i of the Principal Determination, which provides an exception to those members whose removal costs are capped due to the member continuing to provide service after the date they were due to discharge. The exception has been clarified to reflect that it only applies to members who were granted a compassionate removal. 

Sections 3 and 4 amend items in the table in section 8.3.17 of the Principal Determination, which summarises benefits that apply to some members whose dependants move for compassionate reasons. These include removal benefits. The table is being amended to reflect changes made in section 1 of Schedule 1.

Section 5 substitutes section 8.3.18 of the Principal Determination, which summarises benefits that apply to some members whose spouse or partner moves to continue employment or study. The new section states that a move must be within a period of three months of a member's posting to a new location, or an extended period approved by the CDF. This reflects the new rule in section 6.5.19, inserted by section 1 of Schedule 1. The current exception that prevented child-only households from being covered is no longer required as the purpose of the provision is to allow the member's spouse or partner to move. The new provision also makes two changes to cross references to reflect the structural changes to the Principal Determination made by section 1 of Schedule 1.

Schedule 2 amends Defence Determination 2016/19, Conditions of service.

This Schedule implements the Puckapunyal housing trial.

Section 1 amends section 1.3.55 of the Principal Determination, which provides the definition of 'posting location – within Australia'. A new subsection 1.3.55.3 has been included to allow the CDF to approve an extended posting location for members posted to the Puckapunyal Military Area. The approval for the extended posting location is to enable a member's spouse or partner to undertake specified employment or study, or for a member's dependant with special needs to access professional services.

Section 2 amends section 6.5.5 of the Principal Determination, which provides that members are not eligible for a removal at Commonwealth expense. The section is being amended to include members who are a participating in the Puckapunyal housing trial as ineligible for a removal at Commonwealth expense when the member is already in the Puckapunyal posting location before their extended posting location has been approved. It also includes members who cease to participate in the Puckapunyal housing trial and who elect to relocate to the Puckapunyal posting location as being ineligible for a removal at Commonwealth expense. These changes do not affect a member's removal benefit when the member's posting location is extended before they relocate to the Puckapunyal posting location or at the end of the member's posting.

Section 3 amends section 7.1.15 of the Principal Determination, which provides exceptions for the definition of 'posting location – within Australia' for housing purposes. A new table item sets out that if a member is participating in the Puckapunyal housing trial and the member's posting location has been extended, the member's posting location is Seymour. This is the location used for the member's rent ceiling.

Section 4 inserts a new section 7.1.16A into the Principal Determination. The new section sets out the Puckapunyal housing trial and has the following features.

• Subsection 1 provides that the section applies to a member who is posted to the Puckapunyal Military Area between 11 January 2018 and 31 December 2020, which is the period of the trial.
• Subsection 2 provides that a member may apply for an extension of their posting location for the purposes of the Puckapunyal housing trial. It specifies that the extension must be to enable the member's spouse or partner to undertake specified employment or study, or access professional services for a dependant with special needs.
• Subsection 3 provides that a member who has their posting location extended for the Puckapunyal housing trial is eligible for a Service residence or rent allowance in the extended posting location.
• Subsection 4 provides that if a member is participating in the Puckapunyal housing trial they are eligible for housing assistance within the Puckapunyal posting location.

Section 5 amends section 7.6.4 of the Principal Determination, which sets out what is considered to be a suitable Service residence. Subparagraph 7.6.4.1.b.i provides that a Service residence can be considered suitable when it is in the member's posting location. A note has been included which will allow a Service residence be considered suitable when it is in the Puckapunyal housing trial extended posting location.

Section 6 amends section 7.6.28 of the Principal Determination, which provides when a member with dependants is eligible for a Service residence. A new subsection 7.6.28.1A has been included to provide that a member on the Puckapunyal housing trial is eligible for a Service residence in the extended posting location when they do not own a suitable own home in that location.

Section 7 amends subsection 7.6.34.2 of the Principal Determination to allow a participant of the Puckapunyal housing trial to reject a reasonable offer of a Service residence because the home is unsuitable for a member’s spouse or partner to undertake specific employment or study.

Section 8 amends section 7.8.5 of the Principal Determination, which sets out the eligibility criteria, and the period of eligibility, for rent allowance. A new subsection 7.8.5.1A has been included to provide that a member participating in the Puckapunyal housing trial is eligible for rent allowance in the extended posting location. A note has been included to clarify that members that are already posted to the Puckapunyal Military Area, who opt in to the trial, will need to reapply for an extended posting location for the purposes of the Puckapunyal housing trial.

Section 9 inserts a new section 7.8.5A into the Principal Determination. The new section provides that when a member has rental accommodation in the extended posting location, and they are not receiving rent allowance for that accommodation, the member is eligible for rent allowance under the Puckapunyal housing trial for the period commencing on the day that the CDF approves the extended posting location until the end of the member's posting or when the member leaves the property, whichever occurs first.

Section 10 inserts a new section 7.8.9A into the Principal Determination. The new section provides that the rent ceiling for a member on the Puckapunyal housing trial based on the rent ceiling for Seymour. The new section also provides that a member participating in the Puckapunyal housing trial is not eligible for an increase in the rent ceiling for Seymour unless approved by the CDF under section 7.8.12. Section 7.8.12 sets out specific criteria for the approval of an increase in the rent ceiling.

Section 11 inserts a new section 7.8.17A into the Principal Determination. The new section provides the fortnightly contribution that a member participating in the Puckapunyal housing trial must make towards rental accommodation when they receive rent allowance for that accommodation. This section only applies to members who had rental accommodation in the extended posting location before the extended location was approved and they were not receiving rent allowance for that property.

Consultation

Navy, Army and Air Force were consulted and agreed to the changes made in Schedule 1 of this Determination. Army was consulted and agreed to the changes made in Schedule 2 of this Determination as the trial applies only to Army. 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 2017/45, Removal to a personal location and the Puckapunyal housing trial – 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 purposes.

• It removes the restriction that a removal for compassionate purposes can only be undertaken at the same time as a member's posting removal. This change will allow a compassionate removal to be undertaken at any time.
• It removes cost limitations on a removal for compassionate purposes to ensure that a member is not financially disadvantaged when their dependants relocate to a personal location for compassionate reasons.
• It expands the rules relating to removal of a member's dependants to another location for the purposes of employment or study. The removal for employment or study provisions were previously in the same section as the removal for compassionate purposes and are now provided in a separate section to allow greater flexibility between the two reasons for a removal.
• It implements a housing trial for members posted to the Puckapunyal Military Area. The housing trial will allow members to access housing assistance in an extended posting location. This is to enable a member's spouse or partner to engage in employment or study, or for a special needs dependant to access professional services and to allow the member and their dependants to remain together in the one location.

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. This could limit the ability of their spouse or partner to undertake employment or study should they choose to accompany the member.

Reasonable, necessary and proportionate: The purpose of providing removal assistance is to help the member and their family to not suffer a disadvantage because of the requirement for the member to move to a new posting location. The member may be required to move as part of their service in the ADF, but their spouse or partner is not similarly bound. A removal may be available to assist family members to move to the location where the spouse or partner has employment or study.

Compassionate removals allow members to move their families to a location other than the one the member works at, where there are substantial compassionate reasons. It is one of a range of conditions that allows members' families additional flexibility, to protect their needs while at the same time allowing the member to continue their ADF service.

The Puckapunyal housing trial will provide members who are posted to the Puckapunyal Military area with housing assistance in an extended posting location. This will allow a member's spouse or partner to undertake specified employment or study which may not be available in the posting location. It will also allow access to professional services that are not available in the posting location when a member has a dependant with special needs. The Puckapunyal housing trial will enable the member and their dependants to remain together as a family unit in the one location

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