Defence Determination, Conditions of service Amendment Determination 2020 (No. 10)
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 subsection33(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.
- Chapter 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
- Chapter 6 sets out provisions dealing with relocations on posting in Australia.
- Chapter 8 sets out provisions dealing with members and their dependants.
- Chapter 12 sets out provisions dealing with overseas conditions of service.
- Chapter 15 sets out provisions dealing with living and working on long-term posting overseas.
- Chapter 16 sets out provisions dealing with overseas hardship locations.
The purpose of this Determination is to provide the following:
- To extend removal and storage benefits from 12 months to 24 months for a member of the Australian Defence Force (ADF) who ceases continuous full-time service and to contemporise the related sections to align with drafting standards.
- To change some position titles of those who can make decisions relating to benefits for a member with a dependant with special needs.
- To include a posting index location, benchmark schools and hardship locations conditions of service for a new posting location: New Caledonia. New Caledonia is a new a posting location and requires to be specified in the Principal Determination for the purpose of providing benefits to members and their dependants posted to the location.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on the day after registration.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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—Removals amendments
Section 1 omits and substitutes section 6.5.46 of the Principal Determination which provides a removal benefit for a member who ceases continuous full-time service. A member formerly had to take the benefit within 12 months of ceasing continuous full-time service. The period is increased to 24 months. This change will allow members and their families more time to choose where they wish to live post separation from the ADF. The section is also contemporised to align with Defence drafting standards.
Section 2 substitutes subsection 6.5.60.4 of the Principal Determination which provides a removal benefit from a Commonwealth removalist's store to a member's home after the member has ceased continuous full-time service. A member previously had to take the benefit within 12 months of ceasing continuous full-time service. The period is increased to 24 months to allow members and their families more time to choose where they wish to live post separation from the ADF.
Section 3 substitutes subsection 6.5.60.5 of the Principal Determination which provided that when a member's eligibility for storage at Commonwealth expense ends, the Commonwealth insurance cover also ends. The provision is omitted as it is information only and non-legislative in nature. The following provisions omitted by sections 1 and 2 of this Determination are re-inserted by this section. A removal benefit from the storage location is not provided in the following circumstances.
- The member's items are removed to storage at the location the member has nominated to live at and the member decides to live at a different location (formerly located under subsection 6.5.46.1 table item 4).
- The member was not living in Defence subsidised housing and intends to relocate within the same posting location they last received a removal to (formerly located under subsection 6.5.46.1 table item 3).
Schedule 2—Dependants with special needs amendments
Sections 1 and 2 omit and substitute paragraphs 1.3.84.1.b and 8.6.9.1.b of the Principal Determination respectively which identify Defence positions directly conferred to make decisions relating to benefits for a member with a dependant with special needs.
Schedule 3—Overseas conditions (New Caledonia) amendments
Section 1 amends annex 12.3.B which lists the post index locations and data service provider location used for determining the post index under section 12.3.14A. The amendment inserts a new item in the table for the posting location of New Caledonia.
Section 2 inserts a new table item in annex 15.6.A which lists benchmark schools for specific posting locations. The new table item inserts benchmark schools for New Caledonia.
Section 3 inserts a new table item in annex 16.B which provides details use for determining benefits for members posted to specific posting locations that are hardship locations. The new table item inserts New Caledonia as a hardship location. The benefits provided by the amendment align with similar hardship locations.
Criteria are provided for the exercise of discretion under the Principal Determination, as amended by this Determination. Adverse decisions 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 the Department of Department of Foreign Affairs and Trade, Navy, Army and Air Force, the Directorate of Attaché and Overseas Management, and the Defence Community Organisation.
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 provide the following:
- To extend removal and storage benefits from 12 months to 24 months for a member who ceases continuous full-time service and to contemporise the related sections to align with drafting standards.
- To change some position titles of those who can make decisions relating to benefits for a member with a dependant with special needs.
- A posting index location, benchmark schools and hardship locations conditions of service for a new posting location: New Caledonia. New Caledonia is a new a posting location and requires to be specified in the Principal Determination for the purpose of providing benefits to members and their dependants posted to the location.
Human rights implications
Schedule 1—Overseas conditions (New Caledonia) amendments
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.
Schedule 1 advances human rights by providing favourable working conditions to a member posted to New Caledonia and ensures that the member can access additional benefits that compensate for being posted in a hardship location.
Right to an adequate standard of living
The protection of a person's right to an adequate standard of living engages Article 11 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 schedule promotes the right to an adequate standard of living by ensuring that a member does not experience a lower standard of living when posted to New Caledonia. New Caledonia has a higher cost of living than Australia and the amendment adjusts the member’s salary to maintain an equivalent purchasing power in New Caledonia.
Child’s right to education
The protection of a child’s right to education is provided in section 28 of the Convention of the rights of the Child 1990. Article 28 recognises that a child should have a right to primary and secondary education.
This schedule advances the right of a child to education by specifying benchmark schools used when granting education assistance to members posted to New Caledonia.
Schedule 2—Dependants with special needs amendments
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.
Australian Defence Force members are often required to move to many different posting locations during their service. This can be difficult for the family unit, particularly for a member with a dependant with special needs. Extra support is provided to these members. This schedule simply changes the positions of those who can make decisions relating to benefits for a member with a dependant with special needs and the way in which a member must apply for one such benefit.
Schedule 3—Removals amendments
Right to the liberty of movement and freedom.
The protection of a person's right to liberty of movement and freedom to choose his residence engages Article 12 of the International Covenant on Civil and Political Rights. Article 12 guarantees that everyone shall have the right to liberty of movement and freedom to choose their residence.
Defence members are required to live in various posting locations throughout Australia and overseas. This could cause a member and their family financial hardship when they are required to relocate during their time in service or when they separate from the Australian Defence Force (ADF). The purpose of providing removals and storage at Commonwealth expense is to assist the member and their family with relocating so they do not suffer a financial disadvantage.
This schedule doubles the period in which a member can accept a removal at Commonwealth expense after ceasing continuous full-time service. This allows the member and their family more time to choose where they wish to live post separation from the ADF.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions