Defence Determination, Conditions of service Amendment Determination 2021 (No. 3)
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 which sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions
- Chapter 4 which sets out provisions dealing with allowances and reimbursements
- Chapter 8 which sets out provisions dealing with members of the ADF and their dependants
- Chapter 17 which sets out provisions dealing with warlike and non-warlike deployments
The purpose of this Determination is to:
- Amend the provision relating to the CDF recognising a person as a dependant. The amendment limits the CDF from recognising a person as a member’s dependant under subsection 1.3.85.1 if the person is currently or was previously considered a child or partner of the member. The other provisions for recognising these people as a dependant are unchanged.
- Amend section 8.5.5 to remove the formal review process by the Defence Community Organisation in situations where emergency support is approved, as this process is no longer in place. The section is also redrafted to bring it into line with contemporary drafting standards.
- Increase the base rates of Deployment Allowance by 2%. The salary and salary related allowances in the Workplace Remuneration Arrangement will be increased by 2% as part of Defence plans to reshape and reskill the ADF workforce to transition to new platforms and build capacity in emerging capabilities such as cyber, intelligence, electronic warfare and space. Consistent with this, the maximum amount of reimbursement for an additional risk premium on insurance is also increased by 2%.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that sections 1 to 4 of this instrument and anything in this instrument not elsewhere covered by the table commences on the day after the instrument is registered, Schedules 1 and 2 of commence on 4 March 2021 and Schedule 3 commences on 13 May 2021.
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—Dependants recognised by CDF amendments
Sections 1 and 2 amend section 1.3.85 of the Principal Determination which sets out the conditions where the CDF may recognise a person as a dependant. The following amendments have been made.
- Section 1 amends subsection 1.3.85.1 of the Principal Determination. The subsection has been amended to provide to make subsection 1 subject to the conditions in new subsection 1A inserted by this Schedule.
- Section 2 inserts a new subsection 1.3.85.1A into the Principal Determination. The subsection has been inserted to prevent persons who are currently or who are no longer considered to be a child or partner of the member under subsections 1.3.81 and 1.3.88 respectively from being recognised as a dependant of the member under subsection 1.3.85.
Schedule 2—Emergency Support for Families Scheme amendments
Section 1 omits and substitutes section 8.5.5 of the Principal Determination which provides the type of assistance that may be offered when emergency support has been approved. The section has been amended to remove the process for a formal review after emergency support is provided, which is redundant. There is no change in the types of support offered. The section was also redrafted in line with contemporary drafting standards.
Schedule 3—Deployment allowance and additional risk life insurance amendments
Section 1 amends subsection 4.10.4.1 of the Principal Determination which provides the amount of additional risk premium that the member may be reimbursed. The subsection is amended to change the reference to ‘$2,533’’to ‘$2,584’ to increase the amount by 2% in line with the increases to ADF salary and salary related allowances.
Section 2 omits and substitutes the table in subsection 17.7.6.1 of the Principal Determination. The table sets out the daily rate of allowances members are eligible to receive for different operations. The allowances in the table are increased by 2% in line with the increases to ADF salary and salary related allowances.
Consultation
Navy, Army and Air Force were all consulted in the making of Schedule 1.
The changes within Schedules 2 and 3 are technical in nature or routine rate changes and the rule maker was satisfied that external consultation was not required.
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:
- Amend the provision relating to the CDF recognising a person as a dependant. The amendment limits the CDF from recognising a person as a member’s dependant under subsection 1.3.85.1 if the person is currently or was previously considered a child or partner of the member. The other provisions for recognising these people as a dependant are unchanged
- Amend section 8.5.5 to remove the formal review process by the Defence Community Organisation in situations where emergency support is approved, as this process is no longer in place. The section is also redrafted to bring it into line with contemporary drafting standards.
- Increase the base rates of Deployment Allowance by 2%. The salary and salary related allowances in the Workplace Remuneration Arrangement will be increased by 2% as part of Defence plans to reshape and reskill the ADF workforce to transition to new platforms and build capacity in emerging capabilities such as cyber, intelligence, electronic warfare and space. Consistent with this, the maximum amount of reimbursement for an additional risk premium on insurance is also increased by 2%.
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.
Schedule 1 of this Determination advances the human right of just and favourable work conditions by enabling a decision maker to recognise a person as a dependant on the basis that the person has an interdependent relationship with a member. Narrowing the scope for the decision maker ensures the intent of the section is clear.
Schedule 3 of this Determination advances human rights by providing improved deployment allowance for members who are serving in warlike operations overseas. This will ensure deployment allowance will increase at the same rate as ADF salary and salary related allowances, so that members serving in warlike operations overseas are not disadvantaged compared to members serving domestically. The determination also advances human rights by improving the maximum amount of reimbursement for an additional risk premium on insurance by 2% to keep it in line with increases to ADF salary and salary related allowances.
The changes made by schedule 2 of this Determination are technical in nature and do not engage any human rights.
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