Defence Determination, Conditions of service Amendment (COVID-19 response – domestic) Determination 2021 (No. 23)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment (COVID-19 response – domestic) Determination 2021 (No. 23)

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 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the Principal Determination which provides benefits for members of the Australian Defence Force (ADF) and their families as part of the member’s conditions of service. The Principal Determination provides a range of benefits that recognise the unique nature of military service and the obligation and limitations that military service places on members and their families. Members undertake service in both the domestic and overseas environments, including on deployments. Specific benefits are provided for each environment.

Purpose

The purpose of this Determination is to update and provide additional benefits to members and their families as a consequence of the changing COVID-19 pandemic in Australia and the effects it has on the movement of ADF personnel around Australia. Specifically, this Determination does the following:

• Provides an additional allowance for members to encourage them to fly instead of drive to their next posting location. This is in recognition of additional costs the member may incur as a consequence of flying, such as the cost associated with transporting possessions that would ordinarily be transported by vehicle.
• Broadens the ability of a member to fly to their next posting location during the COVID-19 pandemic. Rather than members requiring a direction to fly to be eligible for benefits, the benefits will also be available if the member or their dependants choose to fly.
• Providing additional removal benefits for members who chose to leave the Permanent Forces before having completed their initial period of engagement or appointment, or if the member is in the Air Force, their initial period of mandatory service.
• Provide members and their dependants travelling within Australia with access to quarantine residences and to ensure that a period in or quarantine does not adversely affect the member’s travel or temporary accommodation benefits.

Operational Details

Details of the operation of the Determination are provided at annex A.

Retrospective application

The transitional provisions provided in this Determination provide benefits based on past events. This Determination does not retrospectively 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.

Human rights compatibility

The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.

Review options

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 Directorate of Relocations and Housing in Defence’s Estate and Infrastructure Group and Defence’s external service provider, Toll.

The rule maker was satisfied that further consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment (COVID-19 response – domestic) Determination 2021 (No. 23)

Operational details

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

Section 2 provides the following commencement dates:

• Sections 1 to 4 of the Determination and anything in the Determination not elsewhere covered by the table commences on the day the instrument is registered.
• Schedule 1 of the Determination commences on 11 November 2021.
• Schedule 2 of the Determination commences on 11 November 2021.
• Schedule 3 of the Determination commences on 9 December 2021.
• Schedule 4 of the Determination commences on 6 January 2022.
• Schedule 5 of the Determination commences on 11 November 2021.
• Schedule 6 of the Determination commences on 6 January 2022.

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—Removal of furniture and effects – removal assistance payment amendments

Section 1 inserts section 6.5.8A, a new section, after section 6.5.8 of the Principal Determination. The new section provides a new COVID-19 related payment of $250.00 to member in connection with their removal. To be eligible for the payment, the member or a dependant of the member must fly to the member’s gaining location in connection with the member commencing a posting. If the dependant flies, the dependant must also be moving to the gaining location.

Section 2 omits section 6.5.11A of the Principal Determination which provided benefits of up to $250 to assist with the costs of having items that are not able to be removed under the Principal Determination during the COVID-19 pandemic.

Section 3 amends paragraph 9.2.19A.3 of the Principal Determination which provides benefits for a member in relation to travel that has been rerouted. The amendment removes a cross reference to section 6.5.11A, which is omitted by section 2 of this Schedule.

Schedule 2—Flying on posting amendments

Section 1 amends section 6.1.25 of the Principal Determination which specifies who Chapter 6 Part 1 Division 4 applies to. The section omits and remakes paragraph b to remove the requirement for the member to be directed.

Section 2 omits and substitutes paragraph 6.1.27.1.c of the Principal Determination which provides a limitation on the removal of animals. The paragraph is remade to remove the requirement for a member to be directed.

Sections 3 and 4 amends subsection 6.5.10A of the Principal Determination which provides benefits to members who have not been able to have certain items removed during the COVID-19 pandemic and have been directed to fly to their next posting location. Section 3 remakes paragraph 6.5.10A.1.c to include a member or their dependant who flies to the member’s next posting location, removing the direction to fly. Section 4 amends subsection 6.5.10A.2 to remove the requirement for a member to be directed to fly and substitutes it with if they had driven to their next posting location.

Sections 5 and 6 amends subsection 6.5.40A of the Principal Determination which provides benefits to members who have not been able to have certain items removed during the COVID-19 pandemic and have been directed to fly to their next posting location. Section 5 remakes paragraph 6.5.40A.1.b to include a member or their dependant who flies to the member’s next posting location, removing the direction to fly. Section 6 amends subsection 6.5.40A.2 to remove the requirement for a member to be directed to fly and substitutes it with if they had driven to their next posting location.

Sections 7 and 8 amends subsection 6.5.41A of the Principal Determination which provides benefits to members who have not been able to have certain items removed during the COVID-19 pandemic and have been directed to fly to their next posting location. Section 7 remakes paragraph 6.5.41A.1.b to include a member or their dependant who flies to the member’s next posting location, removing the direction to fly. Section 8 amends subsection 6.5.41A.2 to remove the requirement for a member to be directed to fly and substitutes it with if they had driven to their next posting location.

Sections 9, 10 and 11 amend section 9.2.19A of the Principal Determination which provides specific benefits if a member drives to their next posting location and the specified route needs to be changed. The amendments remove references to being directed to fly. This means that the member may be eligible for the benefit if the member flies, without having been directed to do so.

Schedule 3—Removals (trainees) amendments

Section 1 omits and substitutes section 6.5.48 of the Principal Determination which establishes eligibly for a removal if the member ceases continuous full-time service at their own request. The section is redrafted to contemporise the drafting style and to include a member who is a trainee and requests to cease continuous full-time service during the COVID-19 pandemic. The section is also updated to include all ranks up to and including the Service Warrant Officers (Regimental Sergeant Major of the Army and equivalent ranks) and to update the minimum period a member is required to serve as a consequence of changes to the service requirements of members enlisted into the Air Force.

Section 2 omits and substitutes section 6.5.49 of the Principal Determination which provides eligibility for the removal of vehicles under Chapter 6 Part 5 Division 5 of the Principal Determination when a member ceases continuous full-time service. This is a secondary benefit contingent on being eligible for a removal benefit under another rule. The section is redrafted to identify the primary benefit.

Section 3 amends section 9.2.31 of the Principal Determination which provides meals and accommodation for a member while travelling after having completed continuous full-time service. The section inserts a new subsection that has the effect of including an isolation period, including a quarantine period, completed before they arrive at the location they are receiving a removal to.

Schedule 4—Quarantine residence amendments

Section 1 amends subsection 7.5.6.1 of the Principal Determination which specifies the circumstances in which a member is eligible for temporary accommodation allowance. The section inserts a new paragraph to extend temporary accommodation allowance to a member who is required to isolate in a place that is not their usual place of residence. This is a consequential amendment to the redrafting of section 7.5.13A of the Principal Determination in section 2 of this Schedule.

Section 2 omits and substitutes section 7.5.13A of the Principal Determination which provides rules relating to temporary accommodation if a member is required to isolate. The section is redrafted to facilitate the better organisation of the Principal Determination and to specify the types of temporary accommodation a member is able to occupy if they are required to isolate.

Section 3 omits and substitutes section 7.5.15 of the Principal Determination which specifies the number of rooms a member is eligible to have in temporary accommodation. The section is remade to remove the application of this section to a member occupying a quarantine residence and to move the table under subsection 2.

Section 4 inserts a new section after 7.5.21 of the Principal Determination. The new section sets the rate of temporary allowance that applies to a member who occupies a quarantine residence. The rate of the allowance is the sum of rate of meals allowance that would be payable under sections 7.5.24 and 7.5.26 and laundry costs.

Section 5 amends section 7.5.23 of the Principal Determination which specifies the standard of accommodation that applies to temporary accommodation. The amendment removes the application of this section to members who are eligible to occupy temporary accommodation as a consequence of being required to isolate.

Section 6 inserts a new section after section 7.5.28 of the Principal Determination. The new section provides that the Division does not apply to a person eligible for temporary accommodation as a consequence of being required to isolate and occupies a quarantine residence. The new section also incorporates people who do not pay a contribution under Chapter 7 Part 5 Division 5.

Section 7 omits items 2 and 3 from the table in section 7.5.29 of the Principal Determination which specify a nil contribution payable for members who are categorised as a member with dependants (unaccompanied) and members who are assisted under the SAFE scheme. These amendments are consequential to amendments made by section 6 of this Schedule.

Section 8 amends section 9.2.31 of the Principal Determination which provides meals and accommodation benefits to members who undertake duty travel. The amendment inserts a new subsection after subsection 2 and prevents subsection 2 from applying during an isolation period if the person required to isolate in a place that is not their residence.

Section 9 amends section 9.2.32 of the Principal Determination which provides benefits to members who undertake duty travel by private vehicle. The amendment inserts a new subsection after subsection 3 and prevents subsection 3 from applying during an isolation period if the person required to isolate in a place that is not their residence.

Section 10 omits and substitutes subsection 9.3.33AA.4 of the Principal Determination which provides definitions that apply to the section. Primarily, it defines the additional benefit provided in subsection 2. The amendment remakes the definitions adding the option to be accommodated in a quarantine residence, if available. The amendment also provides for meals and incidental payments to a member while occupying a quarantine residence.

Section 11 amends subsection 9.3.60A.2 which provides additional benefits provided to the member for a person who is required to isolate or quarantine following compassionate travel. The amendment remakes the section adding the option to be accommodated in a quarantine residence, if available. The amendment also provides for meals and incidental payments to a member while occupying a quarantine residence. A payment for incidental expenses is not payable for a person other than the member.

Section 12 amends section 9.5.9.2 of the Principal Determination which defines a travel period for a member undertaking business travel. The amendment inserts a note that clarifies that the travel period includes an isolation period.

Section 13 amends section 9.5.11 of the Principal Determination which defines a travel period for a member undertaking posting travel. The amendment inserts a new subsection that clarifies that the travel period includes an isolation period.

Section 14 inserts two table items into the table in subsection 9.5.11.2 which defines the travel period for a member ceasing continuous full-time service. The new table items make additional rules that incorporate isolation periods.

Section 15 omits and substitutes section 9.5.15 of the Principal Determination which provides a definition of normal accommodation stock. The section is remade to incorporate a quarantine residence.

Section 16 to 19 amend various sections in Chapter 9 Part 5 that provide benefits to members who travel for more than 21 days. The amendments prevent isolation periods for being used to determine if a member’s travel period is more than 21 days.

Section 20 amends section 9.5.22 of the Principal Determination that provides benefits to a member who is travelling for more than 21 days.  The amendment inserts subsection 5 to provide the member with access to accommodation under section 9.5.16 and payments for meals and incidental expenses under section 9.5.17 for the duration of their isolation period if they are required to isolate in a place that is not their residence

Section 21 amends section 9.5.23 of the Principal Determination which specifies limits on travel costs for a member who is on a journey that is more than 21 days. The amendment inserts a new subsection to prevent a member from ceasing to be eligible for benefits under this section if they are away from a place of duty because they are completing an isolation period.

Section 22 inserts a new section under section 9.5.35 of the Principal Determination. The new section provides eligibility to occupy a quarantine residence, if one is available, for a member who is required to isolate.

Sections 23 amends section 9.5.39 of the Principal Determination which specifies the benefits for a member who is occupying living in accommodation. The amendments exclude isolation periods from being counted towards the 21 days that is the threshold for amending the member’s benefits.

Section 24 and 25 amend section 9.5.41 of the Principal Determination which specifies the travelling allowance for members who are undertaking duty travel for more than 21 days. The amendments exclude isolation periods from the application of this section.

Schedule 5—Transitional provisions

Section 1 provides a definition of Defence Determination that applies in this Schedule. The Defence Determination is incorporated into this Schedule as in force immediately before the commencement of Schedule 1.

Section 2 provides members who were eligible for a removal under Chapter 6 Part 5 Division 4 of the Defence Determination between 1 July 2021 and the commencement of Schedule 1 with a payment of $250.00 if the member or a dependant flew to the member’s gaining location in connection with the member commencing a posting.

Schedule 6—Transitional provisions – quarantine residence

Section 1 provides definitions that apply in Schedule 6. Specifically, the Defence Determination 2016/19, Conditions of service, as in force from time to time, and relevant phrases from it, are incorporated by definition into this Schedule.

Section 2 specifies persons to whom this Schedule applies. They are people who would have been eligible to receive a benefit under Schedule 4 of this Determination had it been in force from 31 August 2021 until the commencement of the Schedule.

Section 3 provides benefits to members who would have been eligible to occupy a quarantine residence had Schedule 4 been in force at the time and incurred an accommodation costs for being required to isolate. The member is eligible for the costs of the accommodation unless they have received a benefit under the Defence Determination for accommodation costs connected with the requirement to isolate for the same period.

Section 4 provides members with an amount for meals and incidentals that they would have been eligible for had this section applied during their isolation period.  The amount is reduced by any payment for meals and incidentals that the member received under another part of the Defence Determination for the same period to avoid duplication of the benefit.

Annex B

Defence Determination, Conditions of service Amendment (COVID-19 response – domestic) Determination 2021 (No. 23)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the Determination

The purpose of this Determination is to update and provide additional benefits to members and their families as a consequence of the changing COVID-19 pandemic and the effects it has on the moment of ADF personnel around Australia. Specifically, this Determination does the following:

• Provides an additional allowance for members to encourage them to fly instead of drive to their next posting location. This is in recognition of additional costs the member may incur as a consequence of flying, such as the cost associated with transporting possessions that would ordinarily be transported by vehicle.
• Broadens the ability of a member to fly to their next posting location during the COVID-19 pandemic. Rather than members requiring a direction to fly to be eligible for benefits, the benefits will also be available if the member or their dependants choose to fly.
• Providing additional removal benefits for members who chose to leave the Permanent Forces before having completed their initial period of engagement or appointment, or if the member is in the Air Force, their initial period of mandatory service.
• Provide members and their dependants travelling within Australia with access to quarantine residences and to ensure that a period in or quarantine does not adversely affect the member’s travel or temporary accommodation 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.

Assessment of compatibility

This Determination is compatible with human rights in that it provides bespoke benefits to members and their families in response to the changing requirements of the COVID-19 pandemic. It does so as a part of the conditions of service package provided to members.

Conclusion

This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.