Defence Determination, Conditions of service Amendment Determination 2021 (No. 6)

Defence Determination, Conditions of service Amendment Determination 2021 (No. 6)

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.

For the purpose of adopting Defence Force Remuneration Tribunal (DFRT) determinations, being instruments other than a legislative instrument, section 58B(1A) of the Defence Act provides a contrary intention to section 14(2) of the Legislation Act. Section 58B(1A) of the Defence Act permits DFRT determinations, as in force from time to time, being adopted in this determination in accordance with section 14(1)(b) of the Legislation Act.

The Determination makes references to sections of the Defence Regulation 2016 (the Defence Regulation). This Instrument is 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.

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

• Chapter 4 which sets out provisions dealing with allowances and reimbursements
• Chapter 5 which sets out provisions dealing with leave.
• Chapter 7 which sets out provisions dealing with housing and meals.
• Chapter 17 which sets out provisions dealing with warlike and non-warlike deployments.

The purpose of this Determination is:

• To make subsequent amendments to higher duties allowance provisions which were not included at the time Schedule 5–Higher duties allowance amendment of Defence Determination, Conditions of service Amendment Determination 2020 (No. 28) was made. On the day this Determination was made Schedule 5–Higher duties allowance amendment of Defence Determination, Conditions of service Amendment Determination 2020 (No. 28) had not taken effect.
• To enable members on a long-term posting overseas who wish to travel domestically or to a third country other than Australia to seek relief and respite from their posting location during COVID-19 restrictions to have leave granted and to ensure not have their leave cancelled when travelling.

• To amend the rates of contribution that members must make for their living-in accommodation. Living-in accommodation is a type of military accommodation that is provided for some single members, or members who do not have their families with them.
• To implement an annual review of the Group Rent Scheme.
• To implement the annual review of allowances that members may receive for, and the contributions they are required to make towards, the cost of their accommodation, meals and utilities.
• To adjusts member housing contributions based on Defence Housing Australia’s annual primary rent review to ensure Defence continues to share the cost of accommodation with members. Each year, Defence Housing Australia conducts a review of the assessed market rents for its owned and leased properties, known as the primary rent review.
• To enable a member receiving rent allowance to share their property with a person who is, at the time they commence sharing, under the age of 18 without a reduction in rent allowance.
• To amend an operational area of the purpose of deployment allowance to include Iraq and Syria which affects the payment of deployment allowance and to provide a transitional provision for members deployed on the operation.

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.

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

Section 2 specifies the commencement date for the following:

• 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.
• Schedule 1 commences immediately after the commencement of Schedule 5 of Defence Determination, Conditions of service Amendment Determination 2020 (No. 28).
• Schedule 2 commences on 13 May 2021.
• Schedule 3 and 4 commences on 8 July 2021.
• Schedule 5 commences on 5 August 2021.
• Schedule 6 and 7 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—Higher Duties Allowance amendments

Section 1 amends section 4.1.1 of the Principal Determination which provides the purpose of the Part. Reference to “within the ADF” has been removed. A member may perform higher duties in a position which is outside of the ADF, such as in the APS or for a foreign force.

Section 2 amends section 4.1.2 of the Principal Determination which provides definitions of terms used throughout Chapter 4 Part 1. The definition of higher rank has been amended to remove reference to “a Defence APS position” inserting the more generic “an APS position” recognising that a member may perform the duties of a higher rank in an APS position outside of Defence.

Section 3 omits and substitutes section 4.1.4 of the Principal Determination which provides when a member is not eligible to be paid higher duties allowance. The following changes have been made.

• Members of the Navy or Air Force who are in the Special Pathway of the Officer Aviation Pay Structure (OAPS) have been added. Prior the introduction of the OAPS, these members would have been covered under paragraph b (Aviation Specialist).
• A table has also been added to the section which describes circumstances where there is no significant increase in responsibility between the ranks or salary proficiency points. Members in these circumstances are not eligible to receive higher duties allowance.

Section 4 omits and substitutes subsection 4.1.5.2 of the Principal Determination which provides when a member is eligible to be paid higher duties allowance. The subsection has been amended to clarify when an approver should not approve higher duties allowance. 

Schedule 2—Leave for travel to restricted destination amendments

Section 1 omits and substitutes section 5.2.6 of the Principal Determination which provides an exemption from the cancellation of leave for members entering restricted destinations for the purpose transiting while returning to Australia. Section 5.2.6 was originally inserted as part of Defences response to the global ‘do not travel’ advice level issued by the Department of Foreign Affairs and Trade on 18 March 2020, and is no longer required.

The new section 5.2.6 enables members on a long-term posting overseas to be granted leave, and not to have that leave cancelled as a consequence of travel to, or within, a country that is not listed in the table within the section. The section provides an exemption from sections 5.2.4 (restriction on the grant of leave) and 5.2.5 (cancellation of leave in a restricted destination) for members when entering, or traveling within, a country where the limitations imposed by the Department of Foreign Affairs and Trade as a consequence of the COVID-19 pandemic have restricted the ability for ADF members to travel.

Schedule 3—Living-in accommodation amendments

Section 1 amends subsection 7.4.29.2 of the Principal Determination which provides the rental contribution a member must make towards single bedroom apartment accommodation in Homebush or North Strathfield. The fortnightly contribution is decreased from $269.70 to $265.93, which reflects a 1.4% decrease in the rents sub-component of the Consumer Price Index over the 12 month period September 2019 to September 2020.

Section 2 omits and substitutes Annex.7.4.B of the Principal Determination which sets out a schedule of living-in accommodation contribution rates for members. The adjustments reflect a 1.4% decrease in the rents sub-component of the Consumer Price Index over the 12 month period September 2019 to September 2020.

Section 3 amends table item 1 of subsection 7.9.5.3 of the Principal Determination which provides the amount a member must contribute towards breakfast, lunch and dinner eaten in a mess on a casual basis (when they do not pay the fortnightly meal contribution). The lunch rate is increased from $8.00 to $8.50. The breakfast and dinner rates remain unchanged. The member contribution amounts are set at half the average cost payable by Defence for each meal during Financial Year 2019-20.

Section 4 amends subsection 7.9.7.1 of the Principal Determination which provides the rate of the fortnightly meal charge. The rate is increased from $205.00 to $210.00. The fortnightly contribution rate is the total casual meal charge for a day (three meals) provided under table item 1 of subsection 7.9.5.3 of the Principal Determination multiplied by 10.

Section 5 amends subsection 7.9.7.2 of the Principal Determination which provides that the fortnightly meal contribution for a member who regularly dines in a mess. The contribution is reduced for each day the member is absent and not available to eat in the mess. The amount is increased from $14.64 to $15.00. The figure is calculated by dividing the fortnightly meal charge ($210) by 14.

Section 6 omits and substitutes the table under subsection 7.9.12.2 of the Principal Determination which provides the fortnightly rates of submarine food allowance. The following changes are made.

• For a member who is provided lunch at Commonwealth expense, the rate is increased from $130.96 to $135.41, which reflects a 3.4% increase in the food and non-alcoholic beverages sub-component of the Consumer Price Index over the 12 month period September 2019 to September 2020.
• For a member who is not provided lunch at Commonwealth expense, the rate is increased from $178.77 to $184.85, which reflects a 3.4% increase in the food and non-alcoholic beverages sub-component of the Consumer Price Index over the 12 month period September 2019 to September 2020.

Section 6 amends subsection 7.10.9.1 of the Principal Determination which provides the fortnightly contribution a member who lives in must pay towards the cost of utilities. The fortnightly contribution is decreased from $48.87 to $47.55, which reflects a 2.7% decrease in the utilities sub-component of the Consumer Price Index over the 12 month period September 2019 to September 2020.

Schedule 4—Housing contributions and allowances amendments

Section 1 omits and substitutes section 7.5.29 of the Principal Determination which provides the fortnightly contribution for accommodation, meals and utilities made by a member occupying temporary accommodation. The contribution rate for utilities is decreased from $113.83 to $110.75, which reflects a 2.7% decrease in the utilities sub-component of the Consumer Price Index for the 12 month period September 2019 to September 2020.

Section 2 amends subsection 7.9.10.2 of the Principal Determination which provides the fortnightly rate of food allowance a member with dependants (unaccompanied) receives. The rate is increased from $205.06 to $212.03 which reflects a 3.4% increase in the food and non-alcoholic beverages sub-component of the Consumer Price Index for the 12 month period September 2019 to September 2020.

Section 3 amends subsection 7.9.10.3 of the Principal Determination which provides the daily rate of food allowance a member on a flexible service determination receives. The rate is increased from $20.51 to $21.20, which reflects a 3.4% increase in the food and non-alcoholic beverages sub-component of the Consumer Price Index for the 12 month period September 2019 to September 2020.

Section 4 amends subparagraph 7.10.4.1.b.i of the Principal Determination which provides the fortnightly amount an eligible member may be reimbursed for the cost of utilities. The rate is decreased from $78.91 to $76.78 which reflects a 2.7% decrease in the utilities sub-component of the Consumer Price Index over the 12 month period September 2019 to September 2020.

Section 5 amends subsection 7.10.7.2 of the Principal Determination which provides the fortnightly contribution a member living in a Service residence makes towards the cost of water. The rate is increased from $22.40 to $23.00, which reflects a 3.4% increase in water charges paid by Defence to Defence Housing Australia.

Section 6 amends subsection 7.10.8.2 of the Principal Determination which provides the fortnightly contribution a member must make toward energy costs while they are living in a specified tied (tied to an appointment) or Service residence at Royal Military College, Duntroon and Anglesea Barracks, Hobart. The rate is decreased from $151.41 to $147.33, which reflects a 2.7% decrease in the utilities sub-component of the Consumer Price Index over the 12 month period September 2019 to September 2020.

Section 7 omits and substitutes Annex 7.A of the Principal Determination which provides the contribution a member must make towards the cost of occupying a Service residence or rent band choice accommodation. The contribution rates are adjusted in line with changes in the assessed value of Defence housing properties.

• Part 1 of Annex 7.A sets out the contribution for members with dependants.
• Part 2 of Annex 7.A sets out the contribution for members with dependants who choose a property above the standard eligibility provided for members in their rank group.
• Part 3 of Annex 7.A sets out the contribution for a member without dependants who lives alone.
• Part 4 of Annex 7.A sets out the contribution for a member without dependants who shares their accommodation.

Section 8 omits and substitutes Annex 7.D of the Principal Determination which provides the contribution a member must make towards the cost of rent if they receive rent allowance. The contribution rates are adjusted in line with changes in the assessed value of Defence housing properties.

• Part 1 of Annex 7.D sets out the contribution for members with dependants.
• Part 2 of Annex 7.D sets out the contribution for members without dependants.

Section 9 omits and substitutes Annex 7.E of the Principal Determination which provides rent ceilings used to calculate rent allowance entitlements for members. The rent ceilings are adjusted in line with the market rent paid by Defence for Service residences in various locations. The Annex consists of the following Parts.

• Part 1.1 sets out the rent ceiling rate for a member with dependants who chooses a three or more bedroom rent ceiling for their home.
• Part 1.2 sets out the rent ceiling rate for a member with dependants who chooses a two bedroom rent ceiling for their home.
• Part 2.1 sets out the rent ceiling rates for a member without dependants, or a member with dependants (unaccompanied) who lives alone.
• Part 2.2 sets out the rent ceiling rates for a member without dependants, or a member with dependants (unaccompanied) who shares their accommodation with one other person.
• Part 2.3 sets out the rent ceiling rates for a member without dependants, or a member with dependants (unaccompanied) who shares their accommodation with two other people.
• Part 2.4 sets out the rent ceiling rates for a member without dependants, or a member with dependants (unaccompanied) who shares their accommodation with three other people.

Section 10 omits and substitutes Annex 7.F of the Principal Determination which provides the fortnightly rate of contribution a member must make toward their food costs when they are receiving temporary accommodation allowance. The rates are adjusted to reflect a 3.4% increase in the food component of the Consumer Price Index over the 12 month period September 2019 to September 2020. 

Schedule 5—Rent allowance amendments

Section 1 inserts after the title of Chapter 7 Part 8 of the Principal Determination a new division heading to identify general provisions that apply in the Part.

Section 2 inserts a new section after section 7.8.2 of the Principal Determination that defines ‘sharing a home’. The definition applies in relation to a person with whom the member may be living with. This means that a member living in a home with one or more other people may be considered to be sharing with one of them, but not another. A member is not considered to be sharing with a person if they are a dependant of the member, under 18 years old, or meet specific criteria if the person was under 18 years old when they commenced living with the member and has subsequently turned 18.

The rules relating to age only apply if the member has informed Defence Housing Australia (DHA) that the person meets the criteria. This means they will not be able to receive the benefit of the amendments unless they tell DHA. Specific rules also apply to members who are deployed, on a seagoing ship, submarine or flight, or receiving field allowance. This ensures that they are not disadvantaged by an inability to inform DHA as a consequence of their service.

Section 3 omits and substitutes the table at subsection 7.8.10.2 of the Principal Determination which provides a cross reference to the table that sets out the rent ceiling for a member without dependants. The term ‘sharing a home’ has been incorporated into in column A of the table to give effect to the definition made in section 2 of this Schedule.

Sections 4 to 6 amend section 7.8.17 of the Principal Determination which provide for the contribution a member must pay towards their rent allowance. Specifically, the amendments do the following:

• Section 4 amends paragraph 7.8.17.1A.b to improve readability.
• Section 5 remakes the table in subsection 7.8.17.2 to incorporate ‘sharing a home’ into in column B of the table to give effect to the definition made in section 2 of this Schedule.
• Section 6 omits subsection 7.8.17.3 as a consequence of amendments made by section 2 of this Schedule. The people that subsection 7.8.17.3 applies to are dependants of a member and therefore not considered as sharing a home with the member under section 7.8.2, inserted by section 2 of this Schedule.

Section 7 amends the title of section 7.8.19 of the Principal Determination to more clearly identify the section as being a general rule for calculating rent allowance and to distinguish it from the calculation methods in sections 7.8.20 and 7.8.23. Similar amendments have been made to the titles of sections 7.8.20 and 7.8.23.

Sections 8 to 10 amend section 7.8.20 of the Principal Determination which sets out the rules for calculating rent allowance for a member who is sharing a home.  Specifically, the amendments do the following:

• Section 8 updates the section title for consistency with amendments made to section titles above.
• Section 9 remakes subsection 7.8.20.2 of the Principal Determination to change the meaning of ‘B’ used in the formula for calculating rent allowance. This ensures that the number of people counted as residing in the home only includes the member and those with whom the member is sharing the home.
• Section 10 amends subsection 7.8.20.3 to change a reference to ‘to the house’ to ‘to the house who is 18 years or older’ as a consequence the amendments made by this Schedule.

Sections 11 to 13 amend section 7.8.23 of the Principal Determination which provides for the calculation of rent allowance for a member who has sublet their rental accommodation. Specifically, the amendments do the following:

• Section 11 updates the section title for consistency with amendments made to section titles above.
• Section 12 omits the exception from subparagraph 7.8.23.1.8.iii, substituting it with a note to draw the reader’s attention to section 7.8.20, which provides for the calculation of rent allowance for a member who is sharing a home, other than under a sublease arrangement.
• Section 13 omits the see note, which provides repetitive information.

Schedule 6—Deployment allowance amendments

Section 1 amends section 17.7.6 of the Principal Determination which provides eligible members with deployment allowance. The amendment updates item 3 of the table at subsection 17.7.6.1 to include Iraq and Syria as part of Operation AUGURY.

Schedule 7—Op AUGURY transitional provisions

Section 1 provides a transitional provision that makes members who were deployed to Iraq or Syria under Operation AUGURY between 1 December 2020 and the commencement of this Determination eligible for the $166.44 for each day of duty performed in the operational area, which is the daily rate of deployment allowance for members deployed to Afghanistan under Operation AUGURY during the same period.

This Schedule refers provides a benefit to members by referencing historical events.  The Schedule does not 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.

Consultation

Schedule 1: Navy, Army and Air Force were all consulted in the making of this Schedule.

Schedule 2: Before this Determination was made, internal consultation was undertaken with the Defence COVID taskforce, Defence groups and Navy, Army and Air Force, and Senior Defence Representatives at Overseas Posts. External consultation was undertaken with the Department of Foreign Affairs and Trade. The rule maker was satisfied that further external consultation was not required.

Schedules 3 and 4: Consultation was undertaken with Defence Finance Group in the making of these Schedules. Further consultation is not considered necessary in the annual housing rates adjustment.

Schedule 5: Consultation was undertaken with the Defence Chief of Service Committee, Defence Housing Australia and the Directorate of Relocation and Housing.

Schedules 6 and 7: The rule maker was satisfied that further 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

This Determination has the following purposes.

• To make subsequent amendments to higher duties allowance provisions which were not considered at the time Schedule 5–Higher duties allowance amendment of Defence Determination, Conditions of service Amendment Determination 2020 (No. 28) was made. On the day this Determination was made Schedule 5–Higher duties allowance amendment of Defence Determination, Conditions of service Amendment Determination 2020 (No. 28) had not taken effect.
• This Determination ensures that ADF members on a long-term posting overseas who travel domestically or to a third country other than Australia to seek relief and respite from their posting location during COVID-19 restrictions do not have their leave cancelled.

• To amend the rates of contribution that members must make for their living-in accommodation. Living-in accommodation is a type of military accommodation that is provided for some single members, or members who do not have their families with them.
• To implement an annual review of the Group Rent Scheme.
• To implement the annual review of allowances that members may receive for, and the contributions they are required to make towards, the cost of their accommodation, meals and utilities.
• Each year, Defence Housing Australia conducts a review of the assessed market rents for its owned and leased properties, known as the primary rent review. Any subsequent changes to property rent prices as a result of the primary rent review are passed onto Defence from 1 January each year. To ensure Defence continues to share the cost of accommodation with members on a 50/50 basis, Defence adjusts member housing contributions based on Defence Housing Australia’s annual primary rent review.
• To enable a member receiving rent allowance to share their property with a person who is, at the time they commence sharing, under the age of 18 without a reduction in rent allowance.
• To amend an operational area of the purpose of deployment allowance to include Iraq and Syria which affects the payment of deployment allowance and to provide a transitional provision for members deployed on the operation.

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 person’s right to an adequate standard of living engages article 11 of the International Covenant on Economic, Social and Cultural Rights. Article 11 ensures the realisation of this right, recognising to this effect the essential importance of an adequate standard of living. This includes housing.

Schedule 2: In response to the relaxation of limitations imposed by the Department of Foreign Affairs and Trade in response to the COVID-19 pandemic, this Determination ensures that members on long-term posting overseas who choose to travel domestically or to a third country other than Australia to seek relief and respite from their posting location during COVID-19 restrictions do not have their leave cancelled. 

Domestic and third country travel for members on long-term posting overseas is limited to countries that did not have an overall travel advice level of ‘do not travel’ or ‘reconsider your travel plans’ immediately prior to the global ‘do not travel’ advice level issued by the Department of Foreign Affairs and Trade on 18 March 2020.

Countries with a travel advice level of ‘do not travel’ or ‘reconsider your travel plans’ immediately prior to 18 March 2020 are considered unsafe for ADF members to enter, or travel within.

Schedule 3: Members may be required to live in on a military base to satisfy an operational, training or duty of care requirement. This could limit the standard of accommodation available to members. It could also cause a member to be separated from their family.

Living-in accommodation is provided to meet the operational, training and duty of care responsibilities of Defence. Members are required to make contributions towards their living-in accommodation. The rates in this Determination have been adjusted to reflect changes in the Consumer Price Index. This also helps maintain the value of the Commonwealth subsidy as a proportion of the costs. The changes in this Determination assist members in maintaining their right to an adequate standard of living by providing them with financial assistance towards the cost of accommodation, utilities and meals.

Schedule 4: Defence members are required to live in various posting locations throughout Australia. This could cause a member and their family financial hardship or low housing standards if they are required to live in a high cost rental location.

The purpose of the Group Rent Scheme is to provide assistance with the cost of accommodation for a member and their family. Members are eligible to receive allowances which assist with the cost of accommodation at their posting location. The members are required to make contributions towards their subsidised accommodation, meals and utilities. The rates in this Determination have been adjusted in-line with the Consumer Price Index and with the local rental markets to ensure that the member's contribution and allowances are reasonable and proportionate in relation to their posting location and yearly salary. This also helps maintain the value of the Commonwealth subsidy as a proportion of the costs. The changes in this Determination assist members in maintaining their right to an adequate standard of living by providing members with financial assistance towards the cost of accommodation, and maintaining the value of the subsidy for food and utilities.

Schedule 5: Defence provides certain members with rent allowance as a part of their conditions of service package.  The amendments advance human rights by maintaining the rate of rent allowance for members who are sharing their rented home with a person under 18 years old.

Schedule 6 and 7: Defence requires its members to perform duty in overseas locations which are areas of military conflict, and therefore provides additional benefits, beyond the normal overseas conditions of service. Deployment allowance helps financially to compensate members for the conditions they encounter while on deployment.

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