EXPLANATORY STATEMENT

Defence Determination 2018/1

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 16 of the Principal Determination sets out provisions dealing with overseas hardship locations for members of the Australian Defence Force (ADF).

This Determination has the following two purposes.

• It includes the location of Lumut, Malaysia, as a hardship post for hardship post conditions of service.
• It provides a transitional provision for member's who were on short-term duty in a hardship location before 1 July 2017. 

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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

Sections 1 and 2 amend Annexes 16.A and 16.B of the Principal Determination, which provide the hardship post conditions of service for specific posting locations. Each posting location is given a hardship grade which reflects factors that indicate if a location is harder to live in than Australia. The Annexes are being amended to include the location of Lumut, Malaysia, as a hardship location. The conditions of service for Lumut have previously been provided under the posting location of 'Malaysia – other locations' which has a hardship post grade of C. After a review of the conditions at the location it has been identified that the conditions are that of a post grade of D.

Schedule 2 provides a transitional provision for members on short-term duty in a hardship location on 1 July 2017.

Section 1 provides a transitional provision for members who were on short-term duty in a hardship location before 1 July 2017. On 1 July 2017 whole-of-government changes were made to the provisions for hardship locations overseas. One of the changes was that the provisions for the payment of hardship allowance for members on short-term duty were removed from the Principal Determination. The provisions for members on short-term duty in a hardship location were moved to the new location allowance provisions in the Principal Determination.

It has been identified that a number of members on short-term duty in a hardship location on 1 July 2017 had not yet completed the required 28 days qualification period for the payment of hardship allowance. The days that the member served in the location before 1 July 2017 would not be counted towards the 28 days qualification period for the payment of the new location allowance. Additionally, a number of members had completed the required 28 day qualification period for the payment of hardship allowance; however, the cessation of hardship allowance meant that those members were no longer in receipt of the benefit and the new provisions required the member to undertake a further qualification period of 28 days.

The transitional provisions provide that the days that the member spent in the hardship location before 1 July 2017 will be counted towards the required 28 days qualification period and that the member is to receive the payment of hardship allowance for those days. The member would then receive the payment of location allowance for the period served in the location from 1 July 2017.

Consultation

The Navy, Army, and Air Force were consulted in the development of this Determination. The rulemaker was satisfied that further external consultation was not required.

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 2018/1, Hardship and location allowance – 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 includes the location of Lumut, Malaysia, as a hardship post for hardship post conditions of service.
• It provides a transitional provision for member's who were on short-term duty in a hardship location before 1 July 2017. 

Human rights implications

Right to an adequate standard of living

The protection of a person's right to an adequate standard of living engages Article 1 of the International Covenant on Economic, Social and Cultural Rights. Article 11 recognises the right of everyone to an adequate standard of living for them and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

This Determination does not limit the right to an adequate standard of living. It provides additional benefit to members who are required to perform their duties at an overseas hardship posting location.

Legitimate objective: ADF members who are posted to some overseas locations may experience adverse living conditions during service. This could cause significant adverse effect on the lifestyle or welfare of members and their dependants, as a result of the living conditions at the posting location, as compared with those in Australia. Those hardship conditions can include but are not limited to climate, health care facilities, infrastructure and isolation. Hardship may be addressed by ensuring dependants are not sent to particularly difficult locations.

Reasonable, necessary and proportionate: Hardship post conditions of service provide additional benefits, beyond the normal overseas conditions of service, to assist the member and their family to not suffer a disadvantage because of the requirement for the member to live and work overseas. These benefits may include an allowance, additional recreation leave and relief travel to obtain a break from the environment or to access adequate health and shopping facilities.

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