EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Benchmark Schools – Germany) Determination 2018 (No. 24)

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.

This Determination amends 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.

• It amends the definition of 'compulsory tuition fees' to include building and capital fees.
• It clarifies which education assistance benefits are reimbursable and which may be paid upfront by the Commonwealth to the provider.
• It includes a provision to allow ADF members whose child studies at the overseas posting location to be eligible for initial enrolment fees.
• It clarifies that a member must repay to the Commonwealth any education assistance benefits the member is refunded by the provider.
• It amends the pre-school, primary and secondary benchmark schools for Germany.
• It provides a transitional provision for members who were on a long-term overseas posting to Germany between 1 January 2018 and the commencement of this Determination to allow eligible members to be reimbursed for compulsory tuition fees, registration fees and capital assessment fees.

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

Section 2 provides that this instrument commences on 31 May 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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.

Section 1 amends the table in section 15.6.4 by expanding the definition of 'compulsory tuition fees'. A compulsory tuition fee is a compulsory annual fee payable to the school. The definition is amended to add any compulsory, annual building and capital fees payable.

Sections 2 and 3 omit and substitute sections 15.6.5 and 15.6.6 of the Principal Determination respectively. Section 15.6.5 provided for reimbursement by the Commonwealth to the member for education costs the member paid to the provider. Section 15.6.6 provided for upfront payments by the Commonwealth directly to the provider. Section 2 of this Determination combines the rules into a single section 'How benefits are paid'. Section 3 inserts a new section 15.6.6 which provides that if a member is refunded an amount by a provider for which the Commonwealth has already paid to the member, the member must repay that amount.

Section 4 omits and substitutes section 15.6.10 of the Principal Determination, which formerly provided some general rules for education assistance benefits. The section was expanded over time and became confusing to the reader. Section 4 separates the rules from the former section into four separate sections.

• Section 15.6.10 provides there are no education assistance benefits for a member whose child leaves Australia to join the member at the overseas posting location. The member may be eligible to be partially reimbursed a contribution made towards compulsory tuition fees.
• Section 15.6.10A provides the contribution amounts a member must make in order to receive an amount toward compulsory tuition fees. The amounts for each level of schooling represent the contributions required for a child attending a Government school in Australia.
• Section 15.6.10B provides the compulsory tuition fees benefit amounts a member is eligible for in various scenarios.
• Section 15.6.10C provides a new benefit which allows a member to be reimbursed for initial enrolment fees charged by a school when a member first enrols their child at that school.

Section 5, 7, 9, 10, 11, 13, 15, 17, 19, 20 and 22 amend the Principal Determination where a benefit was provided as being 'reimbursed' to the member. In all the amended sections the benefit may also be paid upfront by the Commonwealth. The amendments ensure the reader will no longer conclude that the only way the benefit may be provided is by way of reimbursement.

Sections 6, 8, 12, 14, and 21 insert subsections into sections where a benefit may be either reimbursed or paid upfront by the Commonwealth to the provider.

Sections 16 and 18 omit cross reference notes from section 15.6.23 and subsection 15.6.25.1 of the Principal Determination, respectively. The references were to sections substituted by sections 2 and 3 of this Determination and are therefore no longer relevant.

Section 23 omits and substitutes section 15.6.25.4 of the Principal Determination, which provided the education assistance benefit for a member whose child returns to Australia to study before the end of the members posting. The member is not eligible for assistance for any period assistance has been provided for the child to study at the overseas posting location. The paragraph was formerly provided in the form of an exception, providing that the member may be reimbursed any contribution made towards compulsory tuition fees. The exception is removed because a reimbursement of a contribution is not a benefit. The rule is now provided under section 15.6.24B which is inserted by section 17 of this Determination. a formula which is to be used to determine the amount the member may be reimbursed.

Section 24 amends Annex 15.6.A of the Principal Determination, which provides a list of schools that set the 'benchmark' for the amount of education assistance to be reimbursed to a member who has a child who is a dependant and requires education at an overseas posting location. Benchmark schools provide a level of education that is comparable to Australian education standards. After a re-assessment of the benchmark schools in Germany, an additional benchmark school has been added for Germany, Bremen (The International School of Bremen).

Schedule 2 provides a transitional provision for members who had a child attending school in Germany.

Section 1 provides a transitional provision for members who were on a long-term overseas posting to Germany between 1 January 2018 and the commencement of this Determination. The transitional provision will allow a member to be reimbursed compulsory tuition fees when they had a child attending a pre-school, primary or secondary school for which the member has paid compulsory tuition fees. The transitional provision also allows a member to be reimbursed an amount associated with the initial enrolment of the child if that member was on a long-term overseas posting to Germany between 1 January 2018 and the commencement of this Determination.

Consultation

Navy, Army, Air Force, Capability Acquisition and Sustainment Group and International Policy Division 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, Conditions of Service Amendment (Benchmark Schools – Germany) Determination 2018 (No. 24)

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 amends the definition of 'compulsory tuition fees' to include building and capital fees.
• It clarifies which education assistance benefits are reimbursable and which may be paid upfront by the Commonwealth to the provider.
• It includes a provision to allow ADF members whose child studies at the overseas posting location to be eligible for initial enrolment fees.
• It clarifies that a member must repay to the Commonwealth any education assistance benefits the member is refunded by the provider.
• It amends the pre-school, primary and secondary benchmark schools for Germany.
• It provides a transitional provision for members who were on a long-term overseas posting to Germany between 1 January 2018 and the commencement of this Determination to allow eligible members to be reimbursed for compulsory tuition fees, registration fees and capital assessment fees.
• be reimbursed for compulsory tuition fees, registration fees and capital assessment fees.

Human rights implications

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.

Legitimate objective; Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing education assistance to enable a member's dependants to access a level of education that is comparable to Australia.

Reasonable, necessary and proportionate: Defence provides a range of benefits to members posted overseas to assist members and their families 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. This Determination amends the benchmark schools for Germany. This Determination also supports members who are required to pay an initial amount at enrolment by reimbursing that member.

A transitional provision has been included for members who have elected to send their child to a pre-school, primary or secondary school in Germany. This transitional provision will assist with the cost of education for members who elected to send their dependants to a benchmark school.

Conclusion

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

Elizabeth Anne Sisley, Acting Assistant Secretary People Policy and Employment Conditions