Defence Determination, Conditions of service Amendment Determination 2022 (No. 11)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2022 (No. 11)

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 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 obligations 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 purpose of this Determination is to do the following:

• Make miscellaneous amendments, including the following:
  • Make technical amendments as a result of changes in the senior officer grade structure made by Defence Force Remuneration Tribunal Determination No. 2 of 2022, Salaries – Senior Officer Graded Structure – amendments. The changes remove the pay grade construct from the Senior Officer Graded Structure and replace it with one set of salary rates for each rank. As a consequence the note in section 3.2.35 is no longer required due to the disestablishment of the pay grade construct and is removed.
  • Remove references to “spouse” to promote the use of contemporary language within the Principal Determination.
  • Update the name of “national ADF health program” to “ADF health program”.
  • Remove ambiguity by redrafting “deeming provisions”, and “exception provisions” in Chapter 14 to clarify the meaning of the provisions for the reader. ”Deeming provisions” state that one thing is to be treated or regarded as though it was something else. An “exception provision” is one which creates an exception to a rule in the legislation. The redrafted provisions are policy neutral and do not change the operation of the rules.
  • Redraft Chapter 10 Part 4 of the Principal Determination which provides members with payment for the loss or damage to clothing or personal effects. The redrafted provisions are policy neutral and do not change the operation of the rules.
  • Make technical amendments that promote the use of the correct terminology, remove information which is non-legislative and administrative in nature and to bring a number of provisions and definitions within the Principal Determination into line with contemporary drafting standards.
  • Provide a transitional provision relating to redundancy benefits for former members of the Permanent Forces who ceased service between 14 October 2021 and the commencement of Schedule 1.
• Include Latvia as a new posting location and a hardship location, and amend the approved summer schools for a member posted to China. A transitional provision is also included so a member can be reimbursed the cost of a child attending an approved summer school in China between 6 June 2022 and the commencement of Schedule 7.
• Allow a member to pay a reduced contribution towards education assistance with compulsory school fees if their child does not complete a full academic school year at an overseas posting location or in a boarding school in Australia.
• Amend the rates of allowances and related benefits that may be paid to a member in connection with travel undertaken for duty purposes. The rates are adjusted annually to ensure they remain contemporary based on annual advice from a contracted service provider. The rate changes this Determination introduces are based on the Subscription Notice No. 5 of 6 2021‑2022 Allowance Subscription Service Travel Related Allowances – May 2022.

Technical amendments are routine in nature, and do not alter the underlying policy. These amendments will not change the benefits which are currently provided.

Operational Details

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

Incorporation of other instruments

The Determination makes references to a section of the Maternity Leave (Commonwealth Employees) Act 1973. This Act 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 of the AI Act applies are incorporated as in force from time to time, unless otherwise stated.

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.

Retrospective application

The retrospective application of this Determination 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.

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

Before this Determination was made, the following consultation was undertaken:

• Schedules 1, 2, 3, 4, 5 and 6: Consultation was not considered necessary for the amendments in these Schedules. 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.
• Schedule 7: Navy, Army, Air Force and the Directorate of Attaché and Overseas Management was consulted in the development of this Schedule.
• Schedule 8: Navy, Army and Air Force, Directorate of Attaché and Overseas Management and the Overseas Administration Team.
• Schedule 9: The Pay and Administration Branch, Defence Travel and Directorate of Relocations and Housing were consulted in the development of this Schedule.

The rule maker was satisfied that further consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment Determination 2022 (No. 11)

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 8 and 10 of this Determination commence on 4 August 2022.
• Schedule 9 of this Determination commences on 13 October 2022.

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—Miscellaneous amendments

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

Item 1 repeals and substitutes section 1.3.47 of the Principal Determination which provides the definition of “normal working hours”. The definition provides that normal working hours for a member means the hours of duty set by their commander. The definition has been redrafted to provide clarity to the reader and reflect existing Defence policy.

Item 2 repeals section 1.3.80 of the Principal Determination which provides the purpose statement for the Division. The section is non-legislative and administrative and is removed.

Item 3 amends paragraph 1.3.83.1.e of the Principal Determination which provides situations in which an adult guardian or housekeeper is considered a dependant. The subparagraph is amended to omit 4 references to “spouse or” to promote contemporary drafting standards.

Item 4 repeals and substitutes section 1.3.86 of the Principal Determination which provides the definition of a non-Service spouse and a non-service partner. The section is redrafted to remove the definition of non-Service spouse to promote contemporary drafting standards.

Item 5 amends subsection 2.1.4.2 of the Principal Determination which provides the amount of travel assistance that a person who has applied to be appointed to, or enlisted in, the ADF is eligible for. The subsection is amended to change “for the same item” to “of the same item” to correct a typographical error.

Item 6 adds paragraph 2.3.5.5.b to subsection 2.3.5.5 of the Principal Determination. The paragraph provides that various allowances provided by the Defence Remuneration Tribunal are considered allowances for the purposes of redundancy. The information was incorrectly removed by Defence Determination, Conditions of service Amendment (Miscellaneous amendments) Determination 2021 (No. 16).

Item 7 repeals the note in section 3.2.35 of the Principal Determination which provides that senior officers paid under Schedule B.1 of the DFRT Determination No. 2 of 2017 Salaries do not change pay grades once they have been placed in a pay grade. This change is a consequence of amendments made to DFRT Determination No. 2 of 2017, Salaries by Defence Force Remuneration Tribunal Determination No. 2 of 2022, Salaries –Senior Officer Graded Structure – amendments which removes the pay grade construct from the Senior Officer Graded Structure and replace it with one set of salary rates for each rank. The note is omitted as the pay grade construct to which the note refers no longer exists.

Items 8 to 12 amend various provisions of the Principal Determination to change references to “Service Category” to “service category” in order to provide consistency in how “service category” is written in the Determination.

Item 13 amends subsection 5.4.13.3 of the Principal Determination which sets out the formula used to calculate the fortnightly amount of additional leave credit a member is eligible for. The subsection is amended to change “20, being” to “the maximum annual additional recreation leave credit under section 5.4.12” to correct a typographical error and to provide clarity to the reader.

Item 14 amends subsection 5.4.35.2 of the Principal Determination which provides that a member on recreation leave may be re-credited any day’s leave that was granted which they did not take under certain conditions. The subsection is amended to change “if either” to “if any” to correct a typographical error.

Item 15 repeals and substitutes the definition of “qualifying service” in section 5.6.4 of the Principal Determination which provides definitions that apply to Chapter 5 Part 6 of the Principal Determination. The definition of “qualifying service” in section 5.6.4 has been redrafted with the correct references to “continuous-full-time service” and the Maternity Leave (Commonwealth Employees) Act 1973.

Item 17 repeals and substitutes paragraph 6.1.5.b of the Principal Determination which provides that a member is not eligible for disturbance allowance if they are moving overseas from Australia. The paragraph has been remade to remove information that is non-legislative in nature and does not need to be determined.

Item 18 amends paragraph 6.1.27.2.b of the Principal Determination which provides that the cost of transportation under section 6.1.27 includes the boarding or agistment of an animal for necessary overnight breaks. The paragraph is amended to change “while animal” to “while the animal” to correct a typographical error.

Item 19 amends paragraph 6.5.4A.a of the Principal Determination which provides that a member of the Reserves is eligible for a removal when they are to begin continuous full-time service on a posting of more than 6 months. The subsection is amended to change “posting or” to “posting of” to correct a typographical error.

Item 20 repeals and substitutes section 6.5.10 of the Principal Determination which provides the conditions for removing specific items. The section has been remade to provide clarity on the benefit for the reader.

The following items redraft various sections within the Principal Determination to reflect contemporary drafting standards, and in some instances to remove information which is non-legislative and administrative in nature:

• Item 21 amends section 6.5.26 of the Principal Determination which provides removal benefits for a member who is posted or deployed for six months or more. Subsection 6.5.26.2 which provides what items a member is eligible to have removed has been repealed and substituted.
• Item 22 repeals and substitutes section 6.5.29 of the Principal Determination which provides when a member who moves between residences within their posting location is eligible for a removal benefit.
• Item 23 amends section 6.5.37 of the Principal Determination which provides removal and storage benefits for members posted to a remote location. Subsection 6.5.37.2 which provides what removal and storage benefits apply to furnished and unfurnished residences has been repealed and substituted.
• Item 26 repeals and substitutes subsection 6.5.54.1 of the Principal Determination which provides storage benefits of a member without dependants who is eligible for a removal. The subsection has been repealed and the following have been inserted:
  • Subsection 1 which provides who the section applies to.
  • Subsection 1A which provides the storage benefit a member is eligible for depending on the member’s situation.
  • Subsection 1B which provides what must be considered when determining what items cannot be reasonably housed in a member’s residence.
• Item 27 amends section 6.5.75 of the Principal Determination which provides removal and storage benefits for members who ceases to be a member with dependants. Subsection 6.5.75.4 which provides what removal and storage benefits apply if a members new residence is furnished or unfurnished has been repealed and substituted.
• Item 38 inserts section 7.1.2 of the Principal Determination which provides definitions which apply to Chapter 7.
• Item 39 repeals and substitutes subsection 7.2.5.4 of the Principal Determination which provides a definition of “suitable own home” for the purpose of section 7.2.5.
• Item 40 repeals and substitutes subsection 7.2.6.1 of the Principal Determination which provides that despite section 7.2.5, a member home is considered to be a suitable own home if was purchased using Defence assistance.
• Items 41, 42, 44, 46, 47, 50 and 63 amend references to the home purchase assistance scheme (HPAS) and the home purchase or sale expenses allowance (HPSEA) and Defence Housing Australia (DHA) in various sections of the Principal Determination.
• Item 45 repeals and substitutes 7.3.13 of the Principal Determination which provides the time period a member who is eligible for HPAS must occupy their home.
• Item 51 amends section 7.3.29 of the Principal Determination which provides that a member is eligible to be reimbursed certain costs related to selling and purchasing a home. Subsection 7.3.29.2 which provides a list of transactions for which a member is eligible to be reimbursed has been repealed and substituted.
• Item 52 amends section 7.3.31 of the Principal Determination which provides that a member who incurs costs related to purchasing or selling a home is eligible for reimbursement. Subsection 7.3.31.1 which sets out what costs the member is eligible to be reimbursed for has been repealed and substituted.
• Item 53 inserts the heading “Chapter 7 Part 5 Division 1: General Provisions” into the Principal Determination.
• Item 54 repeals and substitutes section 7.5.1 of the Principal Determination which provides the purpose of Chapter 7 Part 5.
• Items 55 and 56 repeal the title of Chapter 7 Part 5 Division 1 and section 7.5.5 of the Principal Determination as a consequence of the changes made by items 52 and 53 of this Schedule.
• Item 57 repeals and substitutes subsection 7.5.22.2 of the Principal Determination which provides limitations and conditions which apply to assistance provided to a member under the SAFE Scheme. The SAFE Scheme provides emergency assistance for persons who cannot remain in their home due to a domestic crisis.
• Item 58 amends section 7.6.34 of the Principal Determination which sets out when a member’s rejection of an offer of a Service residence is reasonable. Paragraph 7.6.34.2.c, which provides that an offer of a service residence is not reasonable if the home and grounds are unsuitable for the member’s pet, is repealed and substituted.
• Item 59 repeals and substitutes section 7.6.42 of the Principal Determination which provides the circumstances in which a member without dependants does not need to make a contribution towards the cost of occupying a surplus Service residence.
• Items 60 and 64 amend sections 7.6.54 and 7.8.24 of the Principal Determination which set out who pays the contribution if a member's adult dependant is also a member and both occupy a Service residence or rented home for which a contribution is payable. Subsections 7.6.54.3 and 7.8.24.3 which provide that no contribution is payable by either member if one of the members occupies a suitable own home are repealed and substituted.
• Item 61 repeals and substitutes subsection 7.7.7.1 of the Principal Determination which provides when a member accessing member choice accommodation may apply for shared accommodation.
• Item 62 repeals and substitutes subparagraph 7.7.8.2.a.i of the Principal Determination which provides that if a member without dependants or a member with dependants (unaccompanied) who is accessing member choice accommodation becomes a member with dependants they must obtain CDF approval for their dependant to live in the accommodation.
• Item 65 amends section 7.10.5 of the Principal Determination which provides that a member is eligible for the reimbursement of utility costs when they away from their home. Subsection 7.10.5.1 which provides eligibility for utilities costs when the member is away from their home for up to 1 month is repealed and substituted.

Items 24 and 25 amend column C of items 4 and 5 of the table in subsection 6.5.46.3 of the Principal Determination which provides the removal drop off location for members of the Reserves undertaking continuous full-time service, or who were appointed or enlisted in Australia or overseas. The table items are amended to change “column C” to “column D” to correct a typographical error.

Items 28 to 37 amend various provisions of the Principal Determination to remove references to “spouse” or “non-Service spouse” to promote contemporary drafting standards.

Item 43 amends item 1 of the table in section 7.3.7 of the Principal Determination which provides the location where eligibility for home sale or purchase assistance arises for a member with dependants (unaccompanied). The table item is amended to change “dependents live” to “dependant live” to correct a typographical error.

Items 48 and 49 amend section 7.3.22 of the Principal Determination which sets out how the continuity of sale-purchase cycle is maintained or broken and the resulting effect on the member’s HPSEA benefit. The section is amended to remove text that is non-legislative and administrative in nature.

Item 66 amends paragraph 8.6.12.1.b of the Principal Determination which provides that a member is eligible for unpacking assistance if the CDF is satisfied it is reasonable. The paragraph is amended to change “section 8.6.10” to “section 8.6.9” to provide the correct reference to unpacking assistance, which was changed as a consequence of amendments made by item 1 of Schedule 3 of Defence Determination, Conditions of service Amendment Determination 2022 (No. 4).

Items 67 and 68 amend various sections in the Principal Determination in order to change references to “national ADF family health program” to “ADF family health program” to align with current Defence terminology.

Items 69 and 70 amend section 8.9.2 of the Principal Determination which provides definitions that apply to Chapter 8 Part 9 of the Principal Determination. Item 68 repeals the definition of “family health program” in section 8.9.2. Item 69 re-inserts the definition of “family health program” which has been redrafted with the reference to “national ADF family health program” changed to “ADF family health program” to align with current Defence terminology.

Item 71 amends paragraph 14.4.11.3.c of the Principal Determination which provides that one of the criteria the CDF must consider before making a decision to authorise payment for excess baggage is the duration and timing of the member’s posting. The paragraph is amended to change “position” to “posting” to correct a typographical error.

Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 2—Deeming provision amendments

Item 1 repeals and substitutes section 3.2.14 of the Principal Determination which provides that members are on duty and eligible for remuneration at their daily rate of salary if the CDF is satisfied they meet certain conditions. The section is redrafted so that it no longer contains “deeming provisions” to clarify the meaning of the provisions for the reader and to promote contemporary drafting standards. The content previously located in subsection 3.2.14.3 is relocated to subsection 3.2.14.2, except for the note which is redrafted as the new subsection 3.2.14.3.

Item 2 repeals and substitutes section 3.2.15 of the Principal Determination which provides that a member of the Reserves who attends a session under the Reserve Assistance Program is on duty if certain conditions are met. The section is redrafted so that it no longer contains “deeming provisions” to clarify the meaning of the provisions for the reader and to promote contemporary drafting standards. The content previously located in paragraph 3.2.15.b is non-legislative in nature and is removed, and paragraph 3.2.15.a is redrafted as paragraphs a. to c.

Item 3 repeals subsection 3.2.26.6 of the Principal Determination which provides that a member is a trainee in the graduate medical program for salary purposes for any period in which they met certain conditions between 19 February 2009 and 12 February 2013. The subsection is removed as there are no longer any members eligible for the benefit.

Item 4 repeals and substitutes section 3.2.45 of the Principal Determination which sets out conditions and pay for a dental officer. The section is redrafted so that it no longer contains “deeming provisions” to clarify the meaning of the provisions for the reader and to promote contemporary drafting standards. The content previously located in subsections 3.2.45.2 uses language that is not consistent with Defence policy and is removed. Subsections 3.2.45.1, 3.2.45.3 and 3.2.45.4 are redrafted as subsections 1 to 2. The content previously located in subsection 3.2.45.4 is removed as there are no longer any members eligible for the benefit.

Item 5 repeals subsection 3.4.47.3 of the Principal Determination which provides that an officer who holds the honorary rank of medical officer in the Army Reserve is eligible for the rate of salary of a Captain. The subsection is removed as there are no longer any members eligible for the benefit.

Item 6 repeals and substitutes section 4.4.13 of the Principal Determination which provides that a member is eligible to ADF district allowance if they meet certain conditions. The section is redrafted so that it no longer contains “deeming provisions” to clarify the meaning of the provisions for the reader and to promote contemporary drafting standards. The content previously located in subsection 4.4.13.3 is relocated to subsection 2. The content previously located in subsection 4.4.13.4 is redrafted as paragraph 1.d. Subsection 4.4.13.5 is redrafted as subsection 3

Item 7 amends section 4.4.35 of the Principal Determination which provides that a member who completes service in Antarctica and is granted a period of recreation leave before beginning duty in Australia is eligible for a specific amount of Antarctic allowance. The amendment adds subsection 4.4.35.4 which includes content that was removed from section 4.4.41 by item 9 of this Schedule.

Items 8 and 9 repeals and substitutes section 4.4.40, and repeals section 4.4.41, of the Principal Determination which set out the amount and period of Antarctic parity allowance a member is eligible for. Item 8 redrafts section 4.4.40 to include content that was previously located in section 4.4.41. The section is also amended so that it no longer contains “deeming provisions” to clarify the meaning of the provisions for the reader and to promote contemporary drafting standards. Item 9 repeals section 4.4.41. The content previously located in this section is relocated to sections 4.4.35 and 4.4.40 by items 7 and 8 of this Schedule.

Item 10 repeals and substitutes section 4.9.13 of the Principal Determination which provides that a member is eligible for a bonus under Chapter 4 Part 9 Division 2 if they meet certain conditions. The section is redrafted so that it no longer contains “deeming provisions” to clarify the meaning of the provisions for the reader and to promote contemporary drafting standards. The content previously located in subsection 4.9.13.2 is non-legislative and administrative and is removed.

Item 11 repeals and substitutes subsection 5.4.38.3 of the Principal Determination which provides that if a member who is undertaking duty for a specific body is given fewer recreation leave credits than what they would have been eligible for had they been undertaking duty for the ADF, they are eligible for additional leave credits. The subsection is redrafted so that it no longer contains “deeming provisions” to clarify the meaning of the provisions for the reader and to promote contemporary drafting standards. The redrafted subsection also adds paragraphs a. and b. to improve readability.

Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 3—Chapter 6 definitions amendments

Section 1 repeals and substitutes section 6.1A.2 of the Principal Determination which provides definitions that apply to Chapter 6 of the Principal Determination. The definitions have been redrafted to promote the use of contemporary drafting standards and to make the following changes:

• Insert the definition of ADF gap year that is removed by section 4 of this Schedule.
• Repeal the definition of non-service spouse.
• Repeal the definition of non-service partner which is already provided in section 1.3.86.
• Repeal the definition of breakdown of marriage.

Sections 2 and 3 amend subparagraphs 6.5.5.1.g.i and 6.5.5.1.h.i of the Principal Determination which set out circumstances where a member is not eligible for a removal. The subparagraphs are amended to update references that have changed as a consequence of changes made by Schedule 2 of this Determination.

Section 4 repeals subsection 6.5.28.1 of the Principal Determination which provides the definition of ADF gap year for the purpose of section 6.5.28. The subsection is repealed as this definition is relocated to section 6.1A.2 of the Principal Determination by section 1 of this Schedule.

Section 5 amends the table in subsection 6.5.29.1 of the Principal Determination which sets out the benefits for members who must move between residences in a posting location in Australia. The table is amended to change 2 references to “marriage or partnership” to “relationship” as a consequence of the changes made by section 1 of this Schedule.

Section 6 amends subsection 6.5.46.2 of the Principal Determination which provides the definition of “subsidised accommodation” for the purpose of section 6.5.46. The amendment changes “’subsidised accommodation’” to “subsidised accommodation” to promote contemporary drafting styles.

Section 7 repeals and substitutes section 6.5.76 of the Principal Determination which provides the purpose statement for Chapter 6 Part 5 Division 10. The section is redrafted to promote contemporary drafting styles and to remove a reference to “non-Service spouse” as a consequence of changes made by section 1 of this Schedule.

Sections 8 to 13, 15 and 16 amend various sections of the Principal Determination to remove 15 references to “non-Service spouse” as a consequence of changes made by section 1 of this Schedule.

Section 14 amends section 6.5.81 of the Principal Determination which provides a time limit for a non-Service-spouse or partner to complete their removal after their marriage breaks down. The section is amended to change a reference to “marriage breakdown” to “breakdown of a relationship” as a consequence of changes made by section 1 of this Schedule.

Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 4—Chapter 7 definitions amendments

Section 1 repeals and substitutes paragraph 1.3.55.1.d of the Principal Determination which sets out specific areas that are considered a posting location for the purpose of the definition of “Posting location – within Australia”. The paragraph is redrafted to change some references as a consequence of changes made by this Schedule, and to promote contemporary drafting standards.

Sections 2, 3, 17, 22, 24 and 28 amends various sections within the Principal Determination which provide definitions that apply to their respective Chapter and Part. The following have been repealed and substituted to promote the use of contemporary drafting standards:

• Section 7.1.14 which provides definitions that apply to Chapter 7: ADF housing and meals.
• Section 7.1.15, previously numbered section 7.1.16B, which provides the definition of flexible housing trial for Chapter 7: ADF housing and meals.
• Section 7.1.16, previously numbered section 7.1.15, which provides the definition of posting location for Chapter 7: ADF housing and meals.
• Section 7.1.17, previously numbered section 7.1.16A, which provides the definition of Puckapunyal housing trial for Chapter 7: ADF housing and meals.
• Section 7.1.17A, previously numbered section 7.1.17, which provides the definition of suitable accommodation for Chapter 7: ADF housing and meals.
• Section 7.3.4, previously numbered section 7.3.6, which provides definitions that apply to Chapter 7 Part 3: Home sale or purchase.
• Section 7.4.3, previously numbered section 7.4.4, which provides definitions that apply to Chapter 7 Part 4: Living-in accommodation.
• Section 7.5.2 which provides definitions that apply to Chapter 7 Part 5: Temporary accommodation allowance.
• Section 7.6.3 which provides definitions that apply to Chapter 7 Part 6: Service residences.
• Section 7.7.3 which provides definitions that apply to Chapter 7 Part 7: Member choice accommodation.

Sections 4, 5 and 10 make amendments to the Principal Determination to promote the use of contemporary drafting standards. Sections 4 and 5 repeal sections 7.3.9 and 7.3.10 of the Principal Determination which provide when a member is eligible for assistance with an initial home purchase but not for a purchase of land only. Section 10 adds sections 7.3.11 and 7.3.12 to the Principal Determination which include the content previously located in sections 7.3.9 and 7.3.10.

Sections 6 and 7 amend the heading of section 7.3.11 of the Principal Determination which provides the definition of purchasing a home. The heading is amended and renumbered to section 7.3.9 to promote contemporary drafting standards.

Section 8 amends the heading of section 7.3.12 of the Principal Determination which provides the conditions a member must meet to be eligible for HPAS. The heading is renumbered to section 7.3.10 to promote contemporary drafting standards.

Section 9 repeals paragraph 7.3.12.1.a of the Principal Determination which provides that a member is not eligible for home purchase assistance scheme if they have received the benefit for a previous home purchase or sale. The paragraph is non-legislative and administrative in nature and is removed.

Section 11 repeals section 7.3.18 of the Principal Determination which provides definitions that apply to Chapter 7 Part 3 Division 2 of the Principal Determination. The section is repealed as a consequence of changes made by section 2 and section 5 of this Schedule which relocate the definitions in section 7.3.18 to sections 7.1.14 and 7.3.11 of the Principal Determination.

Sections 12 to 14 repeal and substitute paragraphs 7.3.19.c, 7.3.20.c and 7.3.30.c of the Principal Determination which provide that a condition of member being eligible for reimbursement for the costs of selling or purchasing a home in the losing or posting location is that their last reimbursement was for the expenses of selling or purchasing a home. The paragraphs are redrafted to promote contemporary drafting standards.

Section 15 amends section 7.3.31 of the Principal Determination which sets out what costs a member may be reimbursed when an eligible person purchases or sells a home. The section adds subsections 7.3.31.4 and 7.3.31.5 which provides the definitions of “auctioneers” and “professional fees and disbursements” which were previously located in section 7.3.6.

Section 16 amends subsection 7.4.2.1 of the Principal Determination which sets out the principles on which living-in accommodation is provided. The subsection is amended to change the reference to “Defence” to “the Department of Defence” to promote contemporary drafting standards.

Section 18 amends subsection 7.4.5.2 of the Principal Determination which provides that a licence to live in can be granted by the Commonwealth. The subsection is amended to change the reference to “the contracted service provider that manages the accommodation that is subject to the licence” to “Defence Housing Australia” to promote consistency and the use of contemporary drafting standards.

Section 19 amends paragraph 7.4.31.2.a of the Principal Determination which provides that the member must reimburse Defence unpaid contributions within a reasonable time. The paragraph is amended to change the reference to “reimburse Defence” to “pay the amount” to promote contemporary drafting standards.

Section 20 repeals section 7.4.39 of the Principal Determination which provides definitions that apply to Chapter 7 Part 4 Division 6 of the Principal Determination. The section is repealed as a consequence of amendments made by sections 14 and 18 of this Determination which relocated the definitions in section 7.4.39 to sections 7.4.3 and 7.4.48 of the Principal Determination.

Section 21 repeals and substitutes paragraph 7.4.48.1.b of the Principal Determination which provides that one of the conditions that must be met for a seagoing member to be eligible for food allowance is that the ship or nuship to which they are posted is temporarily uninhabitable. The paragraph is redrafted to incorporate the definition that was previously located in section 7.4.39 of the Principal Determination.

Section 23 repeals and substitutes section 7.5.21 of the Principal Determination which sets out how to calculate the amount of temporary accommodation allowance a member is eligible for. The section is redrafted to promote contemporary drafting styles.

Section 25 amends subparagraph 7.6.4.1.b.i of the Principal Determination which sets conditions for when a home is a suitable Service residence. The subparagraph is amended to change the reference to “7.1.16A” to “7.1.17” as a consequence of changes made by section 2 of this Schedule.

Section 26 amends section 7.6.33 of the Principal Determination which sets out when an offer of a Service residence to a member is a reasonable offer. The amendment adds subsection 7.6.33.6, which provides the definition of “waiting list” that was previously located in section 7.6.3.

Section 27 repeals and substitutes paragraph 7.6.34.2.f of the Principal Determination which provides some of the reasons that a member may reject a reasonable offer and still be eligible for a Service residence. The paragraph is redrafted to change 2 references to “7.1.16A” and “7.1.16B” to “7.1.15” and “7.1.17” as a consequence of changes made by subsection 2 of this Schedule.

Section 29 repeals section 7.10.2 of the Principal Determination which provides the definition of utilities. The section is repealed as a consequence of changes made by section 2 of this Schedule which relocates the definition of utilities to section 7.1.14 of the Principal Determination.

Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 5—Clothing or personal effects amendments

Section 1 repeals and substitutes Chapter 10 Part 4 of the Principal Determination which provides members with payment for the loss or damage to clothing or personal effects that is directly related to service in the ADF. The Part has been redrafted and provides the following:

• Section 10.4.1 provides the purpose statement for Chapter 10 Part 4. This section is redrafted to improve the readability of the text.
• Section 10.4.2 provides that a member is eligible for payment for loss of, or damage to, clothing or personal effects owing to their service in the ADF if the CDF is satisfied it is reasonable. This section is redrafted to improve readability, to promote contemporary drafting standards, and includes content previously located in sections 10.4.4 and 10.4.5. The content previously located in section 10.4.2 was non-legislative and is removed.
• Section 10.4.3 sets out how the CDF assesses the amount a member is eligible to be paid for loss of, or damage to, clothing or personal effects owing to their service in the ADF. The section includes content previously located in subsection 10.4.4.1.

Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 6—Exceptions amendments

Item 1 amends subsection 14.2.7.3 of the Principal Determination which provides that a member applying for an outlay advance must use the approved form. The subsection is amended to change the reference to “use the approved form” to “must enter into a deed using the approved form” to clarify the meaning of the provision for the reader.

Item 2 repeals section 14.2.9 of the Principal Determination which sets out the 2 types of outlay advance recovery and the arrangements that apply in relation to them. This information is non-legislative and administrative in nature and is removed.

Item 3 repeals the exception in subsection 14.4.5.3 of the Principal Determination which provides an exception to the conditions for travel assistance set out in subsection 14.4.5.3. The exception of non-legislative and administrative in nature and is removed.

Item 4 repeals and substitutes paragraph 14.4.6.2.a of the Principal Determination which provides the cost limit for meals, accommodation and incidentals for the portion of a journey that is overseas. The paragraph is redrafted to relocate the content of the exception into the legislative rule to clarify the meaning of the provision for the reader and to promote contemporary drafting standards. The section is also redrafted to remove content that is non-legislative and administrative in nature.

Item 5 repeals and substitutes subsection 14.4.8.1 of the Principal Determination which provides that a member and their dependants may be approved to travel to and from the posting location by a route that was not approved under section 14.4.5 as long as the travel is not part of a holiday package, and it is approved before the booking is made. The subsection is redrafted to relocate the content of the exception into the legislative rule to clarify the meaning of the provision for the reader and to promote contemporary drafting standards.

Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 7—Overseas amendments

Item 1 amends Annex 12.3.B of the Principal Determination which lists the post index locations and data service provider locations used for determining the post index under section 12.3.14A. Item 1 inserts Riga, Latvia, as a new posting location.

Item 2 amends Annex 15.6.B of the Principal Determination which lists approved summer schools for overseas posting locations. Item 3 of the table in Annex 15.6.B which provides approved summer schools for China has been repealed and substituted to include Kidtopia Children’s Museum and Mammolina Children’s Home Model Montessori Kindergarten. Atelier Art School and Sports Beijing have been removed.

Item 3 amends Annex 16.B of the Principal Determination which provides details used for determining benefits for members posted to specific posting locations that are hardship locations. The amendment adds a new table item to include Latvia as a hardship location.

Schedule 8—Education assistance amendments

Item 1 amends section 15.6.11 of the Principal Determination which provides the annual contribution that a member must make towards education costs for a child attending a school in the member’s posting location overseas. Subsection 15.6.11.3 has been inserted, which provides the contribution that a member must make towards education costs when their child will not complete a full academic year in the member’s posting location overseas due to service reasons.

Item 2 amends section 15.6.26 of the Principal Determination which provides that a member on long-term posting overseas is eligible for the cost of compulsory school fees for a child who is attending school in Australia. The section also provides the contribution the member must make towards the compulsory school fees. Subsection 15.6.26.4 has been inserted, which provides the contribution that a member must make towards compulsory school fees when their child will not complete a full academic year in Australia due to services reasons.

Schedule 9—Travel and meal allowances amendments

Item 1 repeals and substitutes the table in section 4.5.9 of the Principal Determination which sets out the rates of meal allowance payable in circumstances where Service-provided meals are unavailable. The rates increased on average by 2.47%.

Items 2 and 3 amend section 7.5.24 of the Principal Determination which provides meal allowance rates for a member and each dependent child (if any) when they stay in temporary accommodation.

• Item 2 repeals and substitutes the table in subsection 7.5.24.2 which provides meal allowance rates for a member and each dependent child aged 10 years or older. The rates increased on average by 2.42%.
• Item 3 repeals and substitutes the table in subsection 7.5.24.3 which provides meal allowance rates for a member's dependent child that is aged less than 10 years. The rates increased on average by 2.39%.

Item 4 amends subsection 9.5.10.2 of the Principal Determination which provides the rate for part-day travelling allowance. The rate is increased by 2.81%.

Item 5 amends table item 5 in subsection 9.5.20.2 of the Principal Determination which provides the maximum amounts which a member may use their Defence Travel Card to pay for accommodation, meals and incidentals when living-in during a travel period. The rate increased by 3.4%.

Item 6 amends table item 3 in subsection 9.5.22.2 of the Principal Determination which provides the maximum amounts which a member may use their Defence Travel Card to pay for accommodation, meals and incidentals when on a travel period longer than 21 days. The rate increased by 3.4%.

Item 7 amends table item 5 in subsection 9.5.39.2 of the Principal Determination which provides for the maximum amount of travelling allowance a member is eligible for when on a travel period up to or longer than 21 days. The rate increased by 3.4%.

Item 8 amends table item 3 in subsection 9.5.41.2 of the Principal Determination which provides a maximum amount of travelling allowance that a member is eligible for when living in or out on a journey longer than 21 days. The incidentals rate increased by 3.4%.

Item 9 repeals and substitutes the table in Part 1 of Annex 9.5.A of the Principal Determination which provides the accommodation, meals and incidental rates for a member at the rank of Brigadier or higher, and for the rank of Colonel or lower. Specifically:

• Capital city accommodation rates for Brigadier or higher decreased on average by 0.55% with two capital cities (Sydney and Canberra) decreasing by 24.62% and 8.07% respectively.
• Capital city accommodation rates for Colonel or lower decreased by 0.5% with two capital cities (Sydney and Canberra) decreasing by 24.75% and 7.8% respectively.
• The medium‑cost country centre accommodation rates for Brigadier or higher increased on average by 3.9%, and for Colonel or lower by 3.1%.
• The accommodation rate for country centres for Brigadier and higher increased by 2.1%, and for Colonel or lower by 2.54%.

Item 10 repeals and substitutes the table in Part 2 of Annex 9.5.A of the Principal Determination which provides the accommodation, meals and incidental rates for high-cost country centres. Twenty one locations are added and 17 locations are removed to reflect the changing cost of living and accommodation in these areas.

Item 11 repeals and substitutes the table in Part 3 of Annex 9.5.A of the Principal Determination which lists the medium-cost country centres for accommodation, meals and incidental rates. Thirteen locations are added and 15 locations are removed to reflect the changing cost of living and accommodation in these areas.

Item 12 repeals and substitutes the table in Part 4 of Annex 9.5.A of the Principal Determination which provides the meals and incidentals rates payable. Meal rate for capital cities and high-cost centres increased by 2.37%, and medium-cost centres and other‑country centres by 2.47%. Incidentals rate increased by 3.4%.

Item 13 repeals and substitutes the table in Part 2 of Annex 9.5.B to the Principal Determination which provides the maximum meal rates for a member living out on a journey longer than 21 days. The weekly rate for a boarding house or hotel that does not provide cooking facilities increased by 2.37%. The weekly rate for a boarding house or hotel that provides cooking facilities, or rental accommodation, increased by 2.39%.

Item 14 amends the formula in subsection 15.2A.27.3 of the Principal Determination which provides the meal allowance that a member is eligible for if they perform additional duty while living at a posting location overseas. The rate increased by 2.3%.

Schedule 10—Transitional provisions

Clause 1 defines Defence Determination 2016/19 for the purpose of this Schedule, which is incorporated as in force from time to time.

Clause 2 provides a transitional provision for a former member of the Permanent Forces who met the conditions provided under section 2.3.5 of the Defence Determination between 14 October 2021 and the commencement of Schedule 1. The former member is eligible for the payment of any of the allowances inserted by item 6 of Schedule 1 of this Determination had the change been in effect on 14 October 2021.

Clause 3 provides a transitional provision for a member who is posted to China, and has a child who attended either Kidtopia Children’s Museum or Mammolina Children’s Home Model Montessori Kindergarten between 6 June 2022 and the commencement of Schedule 7. The member is eligible for the reimbursement of the amount they would have been eligible for under section 15.6.15 of the Defence Determination had item 2 of Schedule 7 of this Determination been in effect on 6 June 2022.

Annex B

Defence Determination, Conditions of service Amendment Determination 2022 (No. 11)

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 do the following:

• Make miscellaneous amendments, including the following:
  • Make a technical amendment as a result of changes in the senior officer grade structure made by Defence Force Remuneration Tribunal Determination No. 2 of 2022, Salaries – Senior Officer Graded Structure – amendments. The changes remove the pay grade construct from the Senior Officer Graded Structure and replaces it with one set of salary rates for each rank. As a consequence the note in section 3.2.35 is no longer required due to the disestablishment of the pay grade construct and is removed.
  • Remove references to “spouse” to promote the use of contemporary language within the Principal Determination.
  • Update the name of “national ADF health program” to “ADF health program”.
  • Remove ambiguity by redrafting “deeming provisions”, and “exception provisions” in Chapter 14 to clarify the meaning of the provisions for the reader. ”Deeming provisions” state that one thing is to be treated or regarded as though it was something else. An “exception provision” is one which creates an exception to a rule in the legislation. The redrafted provisions are policy neutral and do not change the operation of the rules.
  • Redraft Chapter 10 Part 4 of the Principal Determination which provides members with payment for the loss or damage to clothing or personal effects. The redrafted provisions are policy neutral and do not change the operation of the rules.
  • Make technical amendments that promote the use of the correct terminology, remove information which is non-legislative and administrative in nature and to bring a number of provisions and definitions within the Principal Determination into line with contemporary drafting standards.
  • Provide a transitional provision relating to redundancy benefits for former members of the Permanent Forces who ceased service between 14 October 2021 and the commencement of Schedule 1.
• Include Latvia as a new posting location and a hardship location, and amend the approved summer schools for a member posted to China. A transitional provision is also included so a member can be reimbursed the cost of a child attending an approved summer school in China between 6 June 2022 and the commencement of Schedule 7.
• Allow a member to pay a reduced contribution towards education assistance with compulsory school fees if their child does not complete a full academic school year at an overseas posting location or in a boarding school in Australia.
• Amend the rates of allowances and related benefits that may be paid to a member in connection with travel undertaken for duty purposes. The rates are adjusted annually to ensure they remain contemporary based on annual advice from a contracted service provider. The rate changes this Determination introduces are based on the Subscription Notice No. 5 of 6 2021‑2022 Allowance Subscription Service Travel Related Allowances – May 2022.

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.

Right of the child to education

The protection of a child’s right to education engages Article 28 of the Covenant on the Rights of the Child. Article 28 guarantees the rights of the child to education and achieving this right progressively and on the basis of equal opportunity.

Assessment of compatibility

Schedules 1, 2, 3, 4, 5 and 6 make technical amendments to the Principal Determination and do not engage any human rights issues.

Schedule 7 advances human rights by providing additional assistance to a member performing duty in a hardship location so that the member and their dependants are compensated for the difficulties or hardships they can experience while performing duty in a hardship location as a part of their conditions of service package. It also advances human rights by providing education assistance for the children of members who are on long-term postings overseas as a part of the member’s conditions of service package. The Schedule ensures that children accompanying members to a posting location are able to attend schools of a similar standard to those in Australia.

Schedule 8 promotes the rights of the child to education by reducing a member’s contribution for education assistance on a pro-rata basis if their child is unable to complete a full academic year.

Schedule 9 promotes just and favourable conditions of work by providing an annual adjustment to travel‑related allowances so a member neither gains nor loses financially when they are posted to a remote location or required to travel.

Conclusion

This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.