Defence Determination, Conditions of service Amendment Determination 2021 (No. 17)

Defence Determination, Conditions of service Amendment Determination 2021 (No. 17)

EXPLANATORY STATEMENT

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 a 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 purposes of this Determination are as follows.

• To remove Chapter 2 Part 3 Division 2 which provides that ADF members can receive a one-off payment for gratuities on retirement and invalidity through the Defence Force Retirement and Death Benefits (DFRDB) superannuation scheme. The Division was time limited as the payments only apply to members of the DFRDB superannuation scheme who have served for less than 20 years. The Commonwealth Superannuation Corporation, the administrators of the scheme, have advised that all remaining members on the DFRDB superannuation scheme have served for 20 or more years and therefore are not eligible for the benefits provided under the Division. The DFRDB superannuation scheme is closed to new members.
• To make a number of technical amendments to Chapters 4, 8, 10 and 11 that promote the use of the correct terminology and bring a number of definitions into line with contemporary drafting standards. Technical amendments are routine in nature, and do not alter the underlying policy or benefits which are currently provided. This includes the removal of information that is non-legislative in nature and does not need to be determined.
• To make technical amendments that remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision. A number of sections have also been redrafted to bring them into line with contemporary drafting standards, to improve readability and to remove information is non-legislative in nature and does not need to be determined.

Operational details

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

Incorporation by reference

The Determination makes references to sections of Health Insurance Act 1973 and the Safety, Rehabilitation and Compensation Act 1988. These Instruments are incorporated into the Determination as in force from time to time. Section 1.2.5A of the Principal Determination specifies that a reference to an Act of Parliament or a legislative instrument to which section 14(3) of the AI Act applies are incorporated as in force from time to time, unless otherwise stated.

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

The rule maker was satisfied that the changes made by this Determination are technical in nature and external consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment Determination 2021 (No. 17)

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 after the instrument is registered.
• Schedules 1 to 4 of the Determination commence on a day to be fixed by Assistant Secretary People Policy and Employment Conditions by notifiable instrument. If the provisions do not commence within the period of 12 months beginning on the day after this instrument is registered, the provisions are repealed on the day after the end of that period.

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—Gratuities amendments

Section 1 omits Chapter 2 Part 3 Division 2 of the Principal Determination which provides for the payment of gratuities to eligible members by the Defence Force Retirement and Death Benefits Authority. The Division is removed as there are no longer any members eligible for the payment.

Schedule 2—Miscellaneous amendments – Chapter 4

The changes under this Schedule are technical amendments and do not alter the underlying policies, or the benefits which are currently provided.

Any section not listed for this Schedule omits examples, non-examples, notes, see notes, related information, relevant information and authorities from the Principal Determination. This information is non-legislative in nature and does not need to be determined.

Section 1 is an application provision which sets out terms that are used in this Schedule.

Sections 2 and 13 omit sections 4.4.1 and 4.5.1 from the Principal Determination which provide overviews of Parts 4 and 5 in Chapter 4. These overviews are non-legislative in nature and do not need to be determined.

Section 8 amends the title of Chapter 4 Part 4 Division 5 of the Principal Determination. The Division title has been amended to replace ‘overview’ with ‘general provisions’ to better reflect the content of the Division.

Section 9 omits and substitutes section 4.4.26 of the Principal Determination which provides definitions for terms used in used in Chapter 4 Part 4 Divisions 5 to 8. The section has been amended to include definitions provided under sections 4.4.27 and 4.4.28 which have been omitted by sections 10 and 11 of this Schedule.

Sections 10 and 11 omit sections 4.4.27 and 4.4.28 from the Principal Determination. These sections provided the definitions of ‘day of embarkation’ and ‘day of disembarkation’ which have been included in section 4.4.26 by section 19 of this Schedule.

Section 17 amends subsection 4.6.7.2 of the Principal Determination which provides that a member who is allocated a parking space or permit may be required to make a contribution. The subsection has been amended to include a reference to Part 11 which provides the rules regarding parking spaces and permits.

Schedule 3—Definitions – Chapters 8, 10 and 11

The changes under this Schedule are technical amendments and do not alter the underlying policies, or the benefits which are currently provided.

Section 1 inserts sections 8.1.1 and 8.1.2 into the Principal Determination. Section 8.1.1 provides definitions which apply to Chapter 8 of the Principal Determination, and includes definitions of compulsory tuition fees, Court of Inquiry and Early Intervention Program. Section 8.1.2 provides a definition of Emergency situation.

Sections 2 and 3 omit sections 8.4.5 and 8.5.2 of the Principal Determination. These sections provided definitions which apply to various parts within Chapter 8. These definitions have been re-inserted by section 1 of this Schedule to bring them into line with contemporary drafting standards.

Section 4 omits and substitutes section 8.9.3 of the Principal Determination which provides definitions which apply to Chapter 8 Part 9 (National ADF Family Health Program). These definitions have been redrafted to bring them into line with contemporary drafting standards. The definition of “Medicare Benefits Schedule” has been omitted and substituted with “Medicare benefit” to better reflect the intent of the definition.

Section 5 and 6 amend section 8.9.4 and 8.9.5 of the Principal Determination to change reference to “Medicare Benefits Schedule” to “Medicare benefit” as a consequence of the changes made by section 6 of this Schedule.

Section 7 inserts section 10.1.1 into the Principal Determination and provides definitions which apply to Chapter 10, and includes definitions of loss, personal effects and value.

Section 8 omits section 10.4.3 of the Principal Determination which provided definitions relating to the loss or damage to clothing or personal effects. These definitions have been inserted into Chapter 10 Part 1 under section 9 of this Schedule to bring them into line with contemporary drafting standards.

Section 9 omits and substitutes section 11.2.4 of the Principal Determination which provides definitions which apply to Chapter 11 Part 2 (Additional military compensation). Section 11.2.4A has also been inserted under this section and provides a definition of dependent child. These definitions have been redrafted to bring them into line with contemporary drafting standards.

Section 10 omits and substitutes section 11.3.3 of the Principal Determination which provides when a person may be eligible to receive a bereavement payment, who is eligible to receive the payment, and how much is payable. The sections has been redrafted to make it clear who is eligible to receive the payment and also to bring the definitions contained within the section into line with contemporary drafting standards.

Section 11 inserts section 11.4.4A into the Principal Determination and provides the definition of legal personal representative which applies to Chapter 11 Part 4 (Funeral and transportation costs on death).

Section 12 omits section 11.4.8 of the Principal Determination which provided the definition of legal personal representative. This definition has been re-inserted by section 11 of this schedule to bring it into line with contemporary drafting standards.

Schedule 4—Technical amendments

The changes under this Schedule are technical amendments and do not alter the underlying policies, or the benefits which are currently provided.

Sections 1 to 4, 6 to 11, 13 to 16, 21 to 27, 29, 30, 32 to 34, 38 to 44, 46, 47, and 49 to 55 make amendments to the Principal Determination to remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision.

Section 5 omits and substitutes section 13.2.14 of the Principal Determination which provides that members are eligible to be provided with insurance against loss or damage to personal effects on overseas visits. The section is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 12 omits and substitutes subsection 14.3.7.3 of the Principal Determination which provides that a member is eligible for the removal of stored items to their permanent accommodation in Australia at the end of their overseas posting. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 17 omits and substitutes subsection 14.3.22.4 of the Principal Determination which provides that a member is eligible to be reimbursed for the cost of private removal arrangements if the CDF approves it beforehand. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles, and also adds subsection 14.3.22.5, which inserts text previously provided by subsection 14.3.22.4.

Sections 18 and 19 omit the notes in paragraphs 14.3.25.1.b and 14.3.25.2.b of the Principal Determination which provide that the furniture of a member’s spouse or partner may not be removed or placed in storage at Commonwealth cost. The notes are omitted as the information they provide is non-legislative and administrative in nature.

Section 20 of the Principal Determination omits subsection 14.3.25.4 of the Principal Determination which provides that a member is not eligible for costs associated with the full removal, storage or indemnity of a new dependants’ goods when a member marries or has a partnership recognised away from their posting location. The subsection is omitted as the information it provides is non-legislative and administrative in nature.

Section 28 omits and substitutes section 14.6.11 of the Principal Determination which provides that a member evacuated from their posting location is eligible for the cost of storage for some items. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision.

Section 31 omits and substitutes subsection 15.3.17.1 of the Principal Determination which provides that a member is eligible for travel costs for a dependant to reunite with other people. The subsection is redrafted to remove a reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 35 omits and substitutes section 15.4.10 of the Principal Determination which provides that a member who has to move from one residence to another at a posting location for organisational requirements is eligible for the removal of items to that residence. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 36 omits and substitutes section 15.4.19 of the Principal Determination which provides that in situations of dual liability only the member who receives the overseas living allowance is required to pay the rent and utilities contribution. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 37 omits and substitutes section 15.4.20 of the Principal Determination which provides that a member who lives in is eligible to be reimbursed for any costs they incur for living-in accommodation. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 45 omits and substitutes section 15.6.6 of the Principal Determination which provides that if a member is refunded an amount relating to their child’s education from a provider for a benefit provided to the member under the Principal Determination, then the member must repay the refunded amount. The section is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision.

Section 48 omits and substitutes paragraph 15.9.4.4.d of the Principal Determination which provides additional conditions that apply to the continuation of benefits to dependants when a member dies during a long-term posting overseas. The paragraph is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 56 omits and substitutes section 17.4.12 of the Principal Determination which provides that an approved visitor is eligible for accommodation assistance during the approved period if a member is hospitalised. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 57 omits and substitutes subsection 17.7.24.3 of the Principal Determination which provides that a member who has been approved to offset their relief out-of-country travel fare to travel to another country is eligible for assistance up to the amount that would have been eligible for under Chapter 17 Part 7 Division 4. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to omit text that is non-legislative and administrative in nature.

Annex B

Defence Determination, Conditions of service Amendment Determination 2021 (No. 17)

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 make a number of technical amendments that do not alter the underlying policies, or the benefits which are currently provided. This includes the removal of information that is non-legislative in nature and does not need to be determined.

Human rights implications

This Determination is technical in nature and does not engage any of the applicable rights or freedoms.

Conclusion

This Determination is compatible with human rights as it does not raise any human rights issues.