Defence Determination, Conditions of service Amendment Determination 2020 (No. 23)

Defence Determination, Conditions of service Amendment Determination 2020 (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. These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).

• Chapter 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
• Chapter 3 sets out provisions dealing with salaries and bonuses.
• Chapter 4 sets out provisions dealing with allowances and reimbursements.
• Chapter 5 sets out provisions dealing with leave.
• Chapter 6 sets out provisions dealing with relocations on posting in Australia.
• Chapter 7 sets out provisions dealing with housing and meals.
• Chapter 8 sets out provisions dealing with members of the ADF and their dependants.
• Chapter 9 sets out provisions dealing with travel costs in Australia.
• Chapter 12 sets out provisions dealing with overseas conditions of service.
• Chapter 14 sets out provisions dealing with relocating to or from long-term posting overseas.
• 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:

• Make technical amendments that update out of date references and to redraft some sections to bring them into line with contemporary drafting standards
• Make routine adjustments to the rates of education assistance. The adjustments are based on changes in the Consumer Price Index, obtained from the Australian Bureau of Statistics, or on advice from an independent data provider. The advice and methodology of the independent data provider's methodology cannot be disclosed publicly as the intellectual property belongs to the provider. Disclosure of the advice would be a breach of terms and conditions under which the advice is obtained. All rates in Schedule 2 are Australian Dollars.
• Expand remote location leave travel benefits to enable members and their families to drive to their destination increasing the flexibility of the benefit. The amendments permit members and their families using scheme A benefits to travel by car between their posting location and their nearest capital city and to be paid vehicle allowance for the travel undertaken. Also, for members and their dependants using scheme B benefits, if they are posted to Woomera, they will now be able to drive to Adelaide before flying to their final destination and be paid vehicle allowance for the drive. For both scheme A and B, if a member posted to Woomera chooses not to drive to Adelaide, they are able to drive to Olympic Dam where they can fly to their final destination and be paid vehicle allowance for the drive.

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

Section 2 provides that this instrument commences on 12 November 2020.

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—Miscellaneous technical amendments

Section 1 omits section 1.3.30 of the Principal Determination which provides the definition for ‘leave year’. The definition for ‘leave year’ is being removed because it replicates the definition of ‘financial year’ as provided for in the Acts Interpretation Act 1901, which is used elsewhere throughout the Principal Determination.

Section 2 amends section 1.3.88 which provides the definition of partner. The section is amended so that the definition of ‘partner’ includes a spouse.

Section 3 amends section 1.3.96 of the Principal Determination which sets out the meaning of a member with dependants (unaccompanied). The section was amended to update a reference to the heading for Chapter 8 Part 3 Division 1, which has been deleted as a consequence of the amendment made by section 31 this Determination.

Sections 4 and 5 omit the see notes in subsections 1.3.96.1 and 1.3.96.2 of the Principal Determination which sets out the meaning of a member with dependants (unaccompanied). The see notes are non-legislative and administrative in nature and are removed.

Section 6 amends the note in subparagraph 1.5.3.5.b.ii of the Principal Determination. The note directed the reader to a reference to Chapter 8 Part 3 Division 1 that is no longer current, as a consequence of the amendment made by section 31 this Determination.

Section 7 amends table item 1 in subsection 3.5.95.2 of the Principal Determination which sets out the service that counts towards the Army targeted rank and employment category completion bonus. The table item was amended to change 2 references to ‘leave year’ to ‘financial year’ which have been changed as a consequence of amendments made by this Determination.

Section 8 amends the table in section 5.4.6 of the Principal Determination which provides definitions used in that Chapter 5 Part 4. The table was amended to delete the definition of ‘leave year’ which has been deleted as a consequence of amendments made by this Determination. Leave year has the same definition as financial year, so all references to ‘leave year’ in the Principal Determination have been replaced with references to ‘financial year’.

Section 9 omits and substitutes subsection 5.4.12.2 of the Principal Determination which specifies the maximum additional recreation leave credit accrued for sea service, field service, flight duties and special service. The subsection was amended to change 2 references to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination. The subsection has also been redrafted in line with contemporary drafting standards.

Section 10 amends section 5.4.20 of the Principal Determination which provides that a member may have up to five days of extra recreation leave service if they meet certain criteria. The section was amended to change 3 references to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 11 amends subsection 5.4.34.1 of the Principal Determination which sets out when recreation leave credits expire. The subsection was amended to update 2 references to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 12 amends Annex 5.4.A of the Principal Determination which lists remote locations and the maximum additional days of recreation leave for each location. The Annex was amended to update the reference to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 13 amends paragraph 5.6.28.a of the Principal Determination which sets out criteria for being a member already on leave without pay. The paragraph was amended to remove the reference to Chapter 5 Part 10 Division 1 that is no longer current as a consequence of an amendment made by a previous Determination.

Section 14 amends section 5.9.1 of the Principal Determination which provides an overview of Chapter 5 Part 9. The section was amended to change the reference to ‘leave year’ to ‘financial year’ which has been changed as a consequence of amendments made by this Determination. The definition of ‘leave year’ is also removed from the section.

Section 15 amends section 5.9.3 of the Principal Determination which sets out the purpose of Chapter 5 Part 9 Division 1. The section was amended to change the reference to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 16 amends section 5.9.10 of the Principal Determination which provides members with compassionate leave. The section was amended to update 3 references to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 17 amends subsection 5.9.12.3 of the Principal Determination which provides members with carer’s leave. The subsection was amended to change 2 references to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 18 amends subsection 5.9.14.2 of the Principal Determination which provides members with special leave for private purposes. The subsection was amended to change the reference to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 19 amends subsection 5.9.15.1 of the Principal Determination which provides members with examination leave. The subsection was amended to change the reference to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 20 amends subsection 5.9.18.6 of the Principal Determination which provides members with travelling leave. The section was amended to change the reference to ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 21 amends the see note in Annex 5.10.A of the Principal Determination which sets out some of the benefits that may be payable during a period of leave without pay. The see note is amended to remove the reference to the heading for Chapter 5 Part 10 Division 1 which has been deleted as a consequence of an amendment made by a previous Determination.

Section 22 amends subparagraph 5.11.5.1.b.ii of the Principal Determination which sets out some of the conditions a decision maker must consider when granting members a short absence from duty. The section is amended to remove the reference to the heading for Chapter 5 Part 10 Division 1 which has been deleted as a consequence of an amendment made by a previous Determination.

Section 23 amends section 6.1.6 of the Principal Determination which sets out the amount of disturbance allowance members can claim. The amendment omits subsection 6.1.6.1 which defines temporary accommodation for the purpose of the section, however the rest of section 6.1.6 makes no references to temporary accommodation and so the definition of temporary accommodation for this section is not required. .

Section 24 omits the see note in subparagraph 6.5.6.2.b.i of the Principal Determination. The note directed the reader to a reference that is no longer current, as a consequence of amendments made by this Schedule.

Section 25 omits the see note in subsection 6.5.18.2 of the Principal Determination. The note directed the reader to a reference that is no longer current, as a consequence of amendments made by this Schedule.

Section 26 omits the see note in subsection 6.5.19.1 of the Principal Determination. The note directed the reader to a reference that is no longer current, as a consequence of amendments made by this Schedule.

Section 27 omits the see note in paragraph 7.6.54.2.b of the Principal Determination. The note directed the reader to a reference that is no longer current, as a consequence of amendments made by this Schedule.

Section 28 amends paragraph 7.8.24.2.b of the Principal Determination which provides one of the conditions for a single rental contribution payment by a member and their adult dependant. The paragraph was amended to delete a references to Chapter 8 Part 3 Division 1 which has been deleted as a consequence of the amendment made by section 31 this Determination.

Section 29 omits the see note in paragraph 7.8.24.2.b of the Principal Determination which provides one of the conditions for a single rental contribution payment by a member and their adult dependant. The see note is non-legislative and administrative in nature and is removed.

Section 30 amends subsection 7.8.34.1 of the Principal Determination which provides that members are not eligible for rent allowance while they are on leave. The subsection was amended to delete 2 references to the heading for Chapter 5 Part 10 Division 1 which has been deleted as a consequence of an amendment made by a previous Determination.

Section 31 omits the heading of Chapter 8 Part 3 Division 1 (Becoming a member with dependants (unaccompanied)) of the Principal Determination. There is only one Division in the Part and the Division heading does not serve any purpose.

Section 32 amends section 9.4.8 of the Principal Determination which sets out the number of recreation leave travel trips that a trainee may be provided with. The section was amended to change 3 references of ‘leave year’ to ‘financial year’ as a consequence of amendments made by this Determination.

Section 33 omits the example in section 9.4.9 of the Principal Determination which provides for members to receive recreation leave travel in advance. The example is non-legislative and administrative in nature and is removed.

Section 34 omits section 12.1.3 of the Principal Determination which describes the supplementary nature of Chapters 12 to 16 of the Principal Determination. The amendment omits the section because it contains non-legislative guidance only which does not need to be determined.

Section 35 omits and substitutes subsection 14A.1.22.1 of the Principal Determination which provides the criteria for members overseas allowances to be reduced. The subsection was omitted and substituted to provide a missing reference to a paragraph, and to update the references.

Section 36 omits the see note from section 15.6.4 of the Principal Determination. The note directed the reader to references that are no longer current, as a consequence of amendments made by previous Determinations.

Section 37 omits and substitutes subsection 16.4.9.1 of the Principal Determination which provides the number of trips a member may take when their posting is shorter than the ordinary posting period. The subsection has been redrafted in line with contemporary drafting standards.

Schedule 2—Education assistance—rate amendments

Section 1 amends subsection 8.4.10.3 of the Principal Determination, which applies to a member who engages a tutor for their child. The amendment increases the maximum hourly rate of reimbursement from $106 to $109. This rate has increased in line with the education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent) rounded up to the nearest dollar.

Section 2 omits and substitutes the table in subsection 8.4.11.6 of the Principal Determination, which sets the maximum benefits provided for web-based tutoring used in the calculation of the maximum reimbursement a member can receive. The rates have increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent) rounding the underlying figure to the nearest dollar.

Section 3 omits and substitutes the table in subsection 8.4.14.3 of the Principal Determination, which sets the maximum education assistance available to members who have children that are recognised as a dependant with special needs. The following amendments have been made.

• An increase to the maximum hourly rate that a member may be reimbursed when their child with special needs requires additional tuition or therapy to assist in the transition to a new school. The rate is increased from $106 to $109.
• An increase to the maximum amount for an assessment of the child's needs, critical to the development of an educational program. The rate is increased from $782 to $804.

These changes have increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent) rounding the underlying figures to the nearest dollar.

Sections 4 and 5 amend subsection 8.4.14.5 of the Principal Determination, which sets the maximum benefit and the contribution for a member who has a child who needs to access a special program at a private school. The benefit has been increased from $29,319 to $29,939 a year and increases the contribution rate from $382 to $393 per year. The new rate is based on advice received from the independent data provider.

Section 6 amends subsection 8.4.15.4 of the Principal Determination, which provides that the Chief of Defence Force may extend education assistance to a member for their child for an additional 14 weeks for each subject, capped at a maximum hourly rate. The amendment increases the maximum rate from $106 to $109. This change is in line with an increase in the Education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent) rounding the underlying figure to the nearest dollar.

Section 7 omits and substitutes the table in subsection 8.4.21.1 of the Principal Determination, which sets the maximum reimbursement and contributions payable by a member who is eligible to receive a benefit under Division 4 of Part 4 of Chapter 8 of the Principal Determination. The amendment increases the maximum rates of reimbursement for compulsory tuition fees, accommodation for children who do not accompany a member to a posting location and a member's annual contribution rate.

The rate changes are as follows.

• An increase in the maximum annual compulsory tuition fee reimbursement from $29,319 to $29,939 with an increase in the amount of the member's contribution from $382 to $393.

• A decrease in the maximum reimbursement of board if accommodated in a boarding school or a commercial establishment from $29,989 to $27,409.
• A decrease in the maximum reimbursement if accommodated privately from $18,431 to $17,068. (This is a reduction in last year's rate. The rate in 2019 was not amended. The current rate of $18,431 was maintained rather than reducing it to $16,486).
• An increase in the annual member contribution towards their child's boarding fees (if it is their first year) from $2,742 to $2,798.

• An increase in the annual member contribution towards their child's boarding fees (if not their first year) from $3,146 to $3,203.

These new rates are based on advice received from the independent data provider.

Section 8 amends subsection 8.4.25.1 of the Principal Determination which sets outs the rate and period of assistance for accommodation for members whose child is in tertiary education and studying away from the member's location of residence. The amendment increases the current fortnightly rate from $363 to $384 a fortnight for accommodation costs.

Section 9 amends subsection 14A.1.18.2 of the Principal Determination which sets out the conditions for education assistance for a member whose school age dependant continues to study the curriculum of the school at the posting location overseas. The amendment increases the current rate a member may be reimbursed for tuition from $106 to $109 per hour. This rate has increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent) rounded up to the nearest dollar.

Section 10 omits and substitutes the table in section 15.6.10A of the Principal Determination, which lists the annual contribution that a member must pay towards compulsory tuition fees when their child attends school in their overseas posting location. The amendment increases the following rates of contribution payable by a member. The increase is in line with the Education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent) rounding the underlying figure to the nearest dollar.

• Member contribution towards compulsory tuition for a pre-school student has increased from $509 to $524.
• Member contribution towards compulsory tuition for a primary school student has increased from $174 to $179.
• Member contribution towards compulsory tuition for a secondary school student has increased from $405 to $417.

Section 11 amends subsection 15.6.22A.5 of the Principal Determination, which specifies the rate of contribution payable by a member posted to Cherbourg towards the cost of the child’s education. The contribution rates are increased from $405 to $417. The rates are increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent) rounding the underlying figure to the nearest dollar.

Section 12 omits and substitutes the table in subsection 15.6.25.1 of the Principal Determination, which specifies the rate of education assistance available to a member who is on a long-term posting overseas when their child attends an Australian school and the contribution payable by the member towards the cost of the education. The amendment updates the following rates, which are in line with the Education component of the Consumer Price Index for the 12 month period ending December 2019 (2.9 per cent), rounding the underlying figure to the nearest dollar.

• Member contribution towards compulsory tuition fees for a pre-school or primary school student has increased from $174 to $179.
• Member contribution towards compulsory tuition fees for a secondary school student has increased from $405 to $417.

The following rate changes made by section 12 have been made based on advice received from the independent data provider.

• The maximum reimbursement for compulsory tuition fees is increased from $29,319 to $29,939 a year.
• The maximum reimbursement for accommodation where a child boards at boarding school or a commercial boarding establishment has increased from $29,989 to $30,207 a year.
• For a member whose child lives at a boarding school, the member's accommodation contribution for the first year is increased from $2,742 to $2,798.

• For a member whose child lives at a boarding school, the member's accommodation contribution for subsequent years is increased from $3,146 to $3,203.

• The maximum reimbursement for private accommodation has increased from $18,431 to $19,866 a year.
• For a member whose child is in private accommodation the member's accommodation contribution is increased from $3,036 to $3,182.

Schedule 3—Remote location leave travel amendments

Sections 1, 2 and 3 amend section 9.4.26 of the Principal Determination which details the benefits provided to a member categorised as a member without dependants under Scheme A of remote location leave travel. Specifically, they do the following:

• Section 1 omits and substitutes subsection 9.4.26.1 to update the drafting style.
• Section 2 omits and substitutes subsection 9.4.26.2 to permit a member to use their remote location leave travel benefit to drive (and receive vehicle allowance), rather than fly, between their posting location and a capital city, other than Darwin. Section 2 also inserts subsection 2A and 2B. Subsection 2A specifies the places between which a person can travel when using remote location leave travel; those being the posting location and the nearest capital city to their posting location. If the member is posted to Darwin, the destination is Adelaide. Subsection 2B limits the amount of vehicle allowance a person can receive if two or more people eligible for remote location leave travel are travelling together in the same vehicle. In this case, only one person is eligible to receive vehicle allowance.
• Section 3 omits subsection 9.4.26.3 which refers to ‘scheme A conditions’, which is redundant and has no effect.

Sections 4 and 5 amend section 9.4.27 of the Principal Determination which details the benefits provided to a member categorised as a member with dependants (unaccompanied) under Scheme A of remote location leave travel. Specifically, they do the following:

• Section 4 omits and substitutes subsection 9.4.27.2 to permit a member to use their remote location leave travel benefit to drive (and receive vehicle allowance) rather than fly between their posting location and a capital city, other than Darwin. Section 4 also inserts subsection 2A and 2B. Subsection 2A specifies the places between which a person can travel when using remote location leave travel; those being the posting location and the nearest capital city to their posting location. If the member is posted to Darwin, the destination is Adelaide. Subsection 2B limits the amount of vehicle allowance a person can receive if two or more people eligible for remote location leave travel are travelling together in the same vehicle. In this case, only one person is eligible to receive vehicle allowance.
• Section 5 omits subsection 9.4.27.3 which refers to ‘scheme A conditions’, which is redundant and has no effect.

Section 6 amends section 9.4.28 of the Principal Determination which details the benefits provided to a member categorised as a member with dependants (unaccompanied) under Scheme A of remote location leave travel. Section 6 omits and substitutes subsection 9.4.28.2 to permit a member to use their remote location leave travel benefit to drive (and receive vehicle allowance) rather than fly between their posting location and a capital city, other than Darwin. Section 6 also inserts subsection 2A and 2B. Subsection 2A specifies the places between which a person can travel when using remote location leave travel; those being the posting location and the nearest capital city to their posting location. If the member is posted to Darwin, the destination is Adelaide. Subsection 2B limits the amount of vehicle allowance a person can receive if two or more people eligible for remote location leave travel are travelling together in the same vehicle. In this case, only one person is eligible to receive vehicle allowance.

Section 7 amends section 9.4.30 of the Principal Determination which details the benefits provided to a member categorised as a member with dependants under Scheme A of remote location leave travel. Section 7 omits and substitutes subsection 9.4.30.2 to permit a member to use their remote location leave travel benefit to drive (and receive vehicle allowance) rather than fly between their posting location and a capital city, other than Darwin. Section 7 also inserts subsection 2A and 2B. Subsection 2A specifies the places between which a person can travel when using remote location leave travel; those being the posting location and the nearest capital city to their posting location. If the member is posted to Darwin, the destination is Adelaide. Subsection 2B limits the amount of vehicle allowance a person can receive if two or more people eligible for remote location leave travel are travelling together in the same vehicle. In this case, only one person is eligible to receive vehicle allowance.

Section 8 amends section 9.4.31 of the Principal Determination which details the benefits provided to a member categorised as a member with dependants (unaccompanied) under Scheme B of remote location leave travel. Section 8 omits and substitutes subsection 9.4.31.2 to permit a member to use their remote location leave travel benefit to fly to their destination or, if they are posted to Woomera, to drive to Adelaide before flying to their destination. Section 8 also inserts subsection 2A which specifies the destination to which a person can travel under Scheme B; that being any capital city, other than Darwin.

Section 9 amends section 9.4.40A of the Principal Determination which provides additional benefits for a member posted to Darwin. The amendment omits and substitutes subsection 2 to provide a member with vehicle allowance between their posting location and Olympic Dam, where they are able to catch a commercial flight to Adelaide. This benefit does not apply to members who drive from their posting location to Adelaide.

Consultation

Consultation was not considered necessary for the amendments in Schedule 1. The changes are technical in nature and do not amend the provision of benefits and the rule maker was satisfied that external consultation was not required.

Consultation is not considered necessary for the amendments in Schedule 2 as they are routine rate adjustments, and do not amend the underlying policy. Rate are based on changes in the Consumer Price Index, obtained from the Australian Bureau of Statistics or advice from the independent data provider and are made according to an established policy.

Consultation was undertaken with Navy, Air Force and Army in the development of the changes in Schedule 3.

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 Schedule 1 is to make technical amendments that update out of date references and to redraft some sections to bring them into line with contemporary drafting standards.
• The purpose of Schedule 2 is to make routine adjustments to education cost allowances. These are based on changes in the Consumer Price Index or advice from an independent data provider.
• Expand remote location leave travel benefits to enable members and their family to drive to their destination increasing the flexibility of the benefit. The amendments permit members and their families using scheme A benefits to travel by car between their posting location and their nearest capital city and to be paid vehicle allowance for the travel undertaken. Also, for members and their dependants using scheme B benefits, if they are posted to Woomera, they will now be able to drive to Adelaide before flying to their final destination and be paid vehicle allowance for the drive. For both scheme A and B, if a member posted to Woomera chooses not to drive to Adelaide, they are able to drive to Olympic Dam where they can fly to their final destination and be paid vehicle allowance for the drive.

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.

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.

Schedule 1 of this Determination makes technical amendments to the Principal Determination and does not engage any human rights issues.

Schedule 2 amends the education assistance rates within the Principal Determination, which engages with the right to just and favourable conditions of work, but due to the technical nature of the amendment it does not engage with those human rights.

Schedule 3 promotes human rights by providing members with greater flexibility over the use of travel benefits available to members posted to remote locations and to their families. As a condition of service, the Determination enables members to choose between flying or driving to their destination and therefore enhances their total conditions of service package.

Conclusion

This Determination is compatible with human rights because, to the extent that it engages with human rights, it advances their protection.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions