EXPLANATORY STATEMENT

Defence Determination 2017/5

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 purposes.

• To amend the travel benefits provided to a member when an escort is needed to accompany their dependant on certain legs of a journey on a reunion visit in the USA or Canada.
• To provide travel benefits to a member for an escort to facilitate transfers and accompany the member's child on certain legs of a journey on a reunion visit to Marshall Islands.

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 the following dates.

• Sections 1 to 4 commence the day after this instrument is registered.
• Section 5 commences on 9 March 2017.
• Section 6 is taken to have commenced on 6 July 2016 to retrospectively provide the benefit to members who were posted to Marshall Islands and had to pay additional travel costs to utilise their child reunion visit benefit.

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

Section 4 specifies that the amendment is made to the Principal Determination, as amended.

Section 5 substitutes section 15.3.15 of the Principal Determination, which provides a member with travel for themself or another adult to escort the member's child dependant on a reunion travel visit in certain circumstances for members posted to the United States or Canada. Special provisions were made for these countries because it is often not possible for a child under 15 to travel unaccompanied to the member's posting location. Section 5 makes the following changes.

• The section formerly provided that one of the conditions of eligibility is the child must "not otherwise be travelling with another person who is 18 years or older". The term "travelling with" is not the underlying point of the policy, rather, that the child is with someone who is caring for them. The wording is replaced with "accompanied by".
• The section formerly provided that the escort may be paid the benefit directly. Typically the Commonwealth would book the flights for the escort. In cases where the member or escort has paid for the travel it is now only the member who may be reimbursed.

• The section formerly did not specify which legs of the journey made by the escort are included in the benefit. The changes provide that an eligible member is eligible for 'allowable travel costs' for the following journeys made by the escort.

When the child travels to the posting location at the start of the reunion visit:

• The journey from the posting location to meet the child at the airport where they can no longer travel unaccompanied.
• The journey to accompany the child back to the posting location

When the child travels home after the reunion visit:

• The journey from the posting location to escort the child to the international airport from which the child will travel home.
• The journey from the international airport back to the posting location.

• The section formerly provided that one of the conditions of eligibility was that the domestic carrier did not allow a child under 15 to travel unaccompanied. Most domestic airlines do allow passengers under 15 to travel unaccompanied, however, if connecting flights are by different airlines they will not ensure the child's safe transfer between flights. The provisions have been amended to reflect the airlines' policy accordingly.

Section 6 inserts section 15.3.15A into the Principal Determination, which provides travel costs and accommodation for a member or another nominated adult to escort a member's child dependant to Marshall Islands on legs of a reunion visit the child is unable to travel unaccompanied. The need for this provision became apparent when a member, posted to Marshall Islands with children boarding in Australia, arranged for them to travel on a reunion visit. A stop-over and an overnight stay is unavoidable due to infrequent flights to Marshall Islands. United States law does not permit children under 18 years old to stay in commercial accommodation when not accompanied by an adult.

The new section provides allowable travel costs to a member for an escort to fly from Marshall Islands to Hawaii to meet the child, accommodation costs in Hawaii until the next flight is available and the return flight to accompany the child back to Marshall Islands. Section 6 also provides for the escort to accompany the child on the same legs of the journey home after the reunion visit.

The provisions in this Determination ensure that members in the USA, Canada and Marshall Islands are able to utilise their reunion travel entitlement for their child dependant at no financial detriment.

The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such person.

Consultation

The Services were consulted in the preparation of this Determination. The rulemaker was satisfied that external consultation was not required. The instrument ensures that members may be reimbursed travel costs for a family member to escort a child on an overseas reunion travel visit on occasions when it is not possible for the child to travel alone.

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 2017/5, Overseas reunion travel – 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.

• To amend the travel benefits provided to a member when an escort is needed to accompany their dependant on certain legs of a journey on a reunion visit in the USA or Canada.
• To provide travel benefits to a member for an escort to facilitate transfers and accompany the member's child on certain legs of a journey on a reunion visit to Marshall Islands.

Human rights implications

The protection of a person's right to care for dependants

The protection of a person's right to care for dependants engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance to families, including their responsibility for the education and care of dependent children.

The protection of a child's right not to be separated from their parents

The protection of a child's right not to be separated from their parents engages Article 9 of the Convention of the Rights of the Child. Article 9 guarantees the widest possible protection for a child who is separated from one or both parents to maintain personal relations and direct contact on a regular basis.

Legitimate objective: Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing assistance to regularly reunite the member with family members who are unable to accompany the member to their posting location.

Reasonable, necessary and proportionate: This Determination ensures a child, who is unable to travel alone on a reunion visit, is able to be safely escorted to the posting location by a family member. It allows a member to utilise their reunion travel entitlement for their child dependant at no financial detriment.

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