Defence Determination, Conditions of service Amendment (CDF recognised dependants) Determination 2020 (No. 22)
This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 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.
This Determination amends the following Chapters of the Principal Determination which provides benefits for members of the Australian Defence Force (ADF) and their dependants.
- Chapter 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
- Chapter 7 sets out provisions dealing with housing and meals.
- Chapter 8 sets out provisions the categorisation of members for Defence benefit purposes.
The purpose of this Determination is to contemporise the rules relating to the recognition of dependants in certain circumstances. Specifically, the rules relating to the recognition of a person who could be recognised as a dependant if they lived with the member, but for certain reasons is unable to. The Determination also makes new provisions for the categorisation of these members as a member with dependants (unaccompanied) and makes provisions in relation to their housing benefits.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 1 October 2020.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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—CDF recognised dependants amendments
Section 1 amends section 1.3.85 of the Principal Determination which enables the Chief of the Defence Force to recognise a person, who would not otherwise be recognised, as a dependant of a member. The amendment omits and substitutes subsection 5 and inserts subsection 5A. Subsection 5 applies to a person who would be a dependant if they normally lived with the member, but was unable to because of service requirements. Subsection 5A applies to a person who would be a dependant if they normally lived with the member, but was unable to because of reasons other than service reasons. In this case, it is also required that the CDF is satisfied that it is reasonable to recognise the person as a dependant in the circumstances. When making a decision under subsections 5 or 5A, the circumstances that apply to the member at the time are to apply.
Section 2 amends section 1.3.95 of the Principal Determination which provides details relating to the member with dependants categorisation. The amendment omits subsection 3 enabling a member who has a dependant recognised under subsection 1.3.85.5 to be categorised as a member with dependants (unaccompanied).
Section 3 amends subsection 7.6.29.1 of the Principal Determination which identifies classes of members who are categorised as a member with dependants (unaccompanied) and not eligible for a Service residence for their dependants to occupy. The amendment inserts a new class of members after paragraph 7.6.29.1.d. This applies to members who have a dependant recognised under subsection 1.3.85.5A, which is inserted as a consequence of this Determination, and who have not subsequently lived together.
Section 4 amends subsection 7.8.6.5 of the Principal Determination which identifies classes of members who are categorised as a member with dependants (unaccompanied) and not eligible to receive rent allowance in respect of housing for their dependants. The amendment inserts a new class of members after paragraph 7.8.6.5.d. This applies to members who have a dependant recognised under subsection 1.3.85.5A, which is inserted as a consequence of this Determination, and who have not subsequently lived together.
Section 5 and 6 amend section 8.3.5 of the Principal Determination which identifies members who are not eligible to be categorised as a member with dependants (unaccompanied). Specifically, section 5 omits the phrase “for Service reasons” from the exemption in paragraph a which will enable a member who has not formed a common household with their dependant to be able to be categorised as a member with dependants (unaccompanied) under subsection 8.3.6.4A, which is inserted as a consequence of this Determination. Section 6 omits paragraph 8.3.5.c which prevents a member without dependants from being categorised as a member with dependants (unaccompanied). This amendment enables members who are categorised as members without dependants to be categorised as a member with dependants (unaccompanied) under subsection 8.3.6.4A.
Section 7 amends section 8.3.6 of the Principal Determination which specifies the circumstances in which a member can be categorised as a member with dependants (unaccompanied). The amendment inserts a new set of circumstances that enables a member categorised as a member without dependants who has a dependant recognised under subsections 1.3.85.5 or 5A to be categorised as a member with dependants (unaccompanied).
Section 8 amends subsection 8.3.6.5 of the Principal Determination which details how a member is to be categorised when their partner is also a member of the ADF and they live apart. The amendment remakes the rule in a more contemporary format with the addition of providing for circumstances in which the members do not have other dependants.
Schedule 2—Savings provisions
Section 1 provides that a member who was categorised as a member with dependants before the commencement of this Determination continues to retain that categorisation. The member’s categorisation may change if circumstances other than the commencement of this Determination arise that result in a change of categorisation or an obligation to apply for categorisation.
Section 2 provides that a member who was categorised as a member with dependants (unaccompanied) before the commencement of this Determination continues to retain that categorisation. The member’s categorisation may change if circumstances other than the commencement of this Determination arise that result in a change of categorisation or an obligation to apply for categorisation.
Decisions that are made under the Principal Determination, as amended by this Determination, may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.
Consultation
Before this Determination was made, consultation was undertaken with Navy, Army and Air Force.
The rule maker was satisfied that further external consultation was not required.
Authority: Section 58B of the
Defence Act 1903
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
The purpose of this Determination is to contemporise the rules relating to the recognition of dependants in certain circumstances. Specifically, the rules relating to the recognition of a person who could be recognised as a dependant if they lived with the member, but for certain reasons is unable to. The Determination also makes new provisions for the categorisation of these members as a member with dependants (unaccompanied) and makes provisions in relation to their housing benefits.
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.
The Determination advances the human right of just and favourable work conditions by enabling a person to be recognised as a member’s dependant and enabling these members to be categorised as a member with dependants (unaccompanied) as part of the conditions of service package. The member’s categorisation is the basis on which many benefits are provided in the Principal Determination, and while the Determination may limit the member’s access to housing assistance for their dependants, it gives members access to other benefits that promote contact with their families.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Jennifer Louise Statton, Acting Assistant Secretary People Policy and Employment Conditions