Defence Determination, Conditions of service Amendment Determination 2022 (No. 13)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2022 (No. 13)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (Defence Act) 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 provide members who are undertaking Defence funded travel the flexibility to withdraw cash rather than using their Defence Travel Card to pay for certain travel benefits directly.

Operational Details

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

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

Consultation was undertaken with Defence Finance Group before this Determination was made. The rule maker was satisfied that further consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment Determination 2022 (No. 13)

Operational details

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

Section 2 provides that this Determination commences on 10 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—Travel Card amendments

Item 1 and 2 repeal sections 9.5.6 and 9.5.7 of the Principal Determination which provide when a member undertaking Defence funded travel is to use their travel card to pay for travel costs and when a member must be paid travelling allowance. The sections have been repealed as these rules are provided by the relevant divisions within Chapter 8 Part 5 of the Principal Determination.

Item 3 amends the heading of Chapter 9 Part 5 Division 2 to remove the reference to the travel card.

Item 4 inserts subsection 9.5.16.5 into the Principal Determination and provides that a member ceases to be eligible for accommodation under section 9.5.16 at the end of the 21st day in their travel period. A member who travels for more than 21 days is provided accommodation from the 22nd day of their travel period under section 9.5.22.

Item 5 inserts subsection 9.5.17.5 into the Principal Determination and provides that a member ceases to be eligible for meals and incidentals under section 9.5.17 at the end of the 21st day in their travel period. A member who travels for more than 21 days is eligible for meals and incidentals from the 22nd day of their travel period under section 9.5.22.

Items 6 to 13, 14, 16, 17, 19 to 26, 28 to 31 and 33 amend various provisions within the Principal Determination as a consequence of the changes made to Defences travel policy, which now provides members the flexibility to use their Defence Travel Card to withdraw cash up to the maximum benefit provided for certain travel costs under Chapter 9 of the Principal Determination. The following provisions have been amended:

• Subsection 9.5.18.4 which provides a member who spends less than the maximum benefit for meals and incidentals is not eligible for any unused amount.
• Section 9.5.20 which provides travel benefits to members who are occupying living-in accommodation while undertaking Defence funded travel.
• Subsection 9.5.22.2 which provides the travel benefits a member is eligible for from midnight on the 21st day of their travel period if they are travelling for more than 21 days.
• Section 9.5.24 table item 3 which provides the cost of meals for a member who is directed to take a dependant with them on a journey for representational purposes.
• Section 9.5.25 which provides a member is eligible for incidentals while they are living in and undertaking a course in specific circumstances.
• Subsection 9.5.26.1 which provides that a member of the reserves who is required to stay overnight after a period of service is eligible for accommodation if they live more than 30km from their place of duty and the CDF considers that occupational health and safety reasons to do with the travel make it necessary for them to stay overnight.
• Section 9.5.29 which provides that a member may be approved an additional amount towards meals and incidentals while undertaking Defence funded travel if the CDF is satisfied that the extra cost in reasonable in the circumstance.
• Section 9.5.31 which provides that a member who has not been provided a Defence Travel Card is eligible for travelling allowance under Chapter 8 Part 5 Division 3.
• Section 9.5.32 which provides the purpose of Chapter 9 Part 5 Division 3, Travelling allowance.
• Section 13.3.1 which provides the purpose of Chapter 13 Part 3, Travel costs for short-term duty overseas.
• Section 13.1.4 which provides that a member who is on short-term duty overseas is eligible to use their travel card to pay for the costs of meals, accommodation, incidentals and equipment.
• Subsection 13.3.6.1 which provides the travel costs a member is eligible for when they live out during short-term duty overseas.
• Subsection 13.3.6.2 which provides that a member may only withdraw cash from their Defence Travel Card when they are unable to use their card to pay for a meal directly.
• Section 13.3.7 which provides that a member who has not been provided a Defence Travel Card is eligible for an allowance that is equal to what the member would be eligible for had they had a Defence Travel Card.
• Section 13.3.8 which provides the limits which are applied to accommodation and meal benefits provided under Chapter 13 Part 3 of the Principal Determination.
• Subsection 13.3.11.1 which provides that the CDF may approve an additional amount for accommodation, meals and incidentals for a member on short-term duty if they require more than the maximum benefit that is provided.
• Section 13.3.13 which provides travel costs for a member who is in hospital during a period of short-term duty overseas.
• Section 13.3.18 which provides that a member is eligible for the cost of basic equipment for the purpose of short-term duty overseas.
• Subsection 13.3.19.2 which provides that a member is eligible for the cost of additional equipment if the CDF is satisfied that the benefit provided under section 13.3.18 is not enough to meet the member’s needs.
• Subsection 13.3.19.4 which provides the amount a member is eligible to receive for additional equipment.
• Subsection 13.3.19.5 which provides that a member is eligible for AUD205 for additional equipment in addition to what is provided under subsection 13.3.19.4 if the CDF is satisfied it is required after considering the members circumstance.
• Annex 13.3.A which provides the maximum travel costs payable to a member on short-term duty overseas.

Item 15 repeals and substitutes section 9.5.30 of the Principal Determination which provides how a member is to confirm their travel costs, as well as providing that if a member who is eligible for travel costs spends more than they are eligible for, they must repay the difference. The section has been amended to provide that a member ceases to be eligible for any unused amount provided for meal and incidentals in connection with travel at the end of their travel period. The information previously provided under subsections 9.5.30.1 and 9.5.30.2 is administrative in nature, and therefore is removed.

Item 18 repeals and substitutes section 9.5.33 of the Principal Determination which provides who Chapter 9 Part 5 Division 3 applies to. The section has been amended to provide information which was previously provided under section 9.5.7 of the Principal Determination as a consequence of the changes made by item 2 of this Schedule.

Item 27 repeals section 13.3.14 of the Principal Determination which provides administrative information for a member who needs to confirm their travel costs at the end of period of travel. The information is non-legislative and administrative in nature, and is therefore removed.

Item 32 repeals section 13.3.20 of the Principal Determination which provides that a member is eligible for an allowance to purchase equipment if they have not been issued a travel card. The section is repealed as a consequence of the changes made by items 19 to 31 of this Determination which remove the requirement for a member to use their travel card to pay for travel related costs directly.

Schedule 2—Saving provisions

Clause 1 provides Definitions which apply to Schedule 2 of this Determination, and includes definitions of Defence Determination and travel period.

Clause 2 provides that, for a member who commenced a travel period prior to 10 October 2022, the rules that applied to them under the Defence Determination 2016/19, Conditions of service immediately before the commencement of this Determination continue to apply until the end of the member’s travel period as though the changes made by this Determination had not taken effect.  

Annex B

 Defence Determination, Conditions of service Amendment Determination 2022 (No. 13)

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 provide members who are undertaking Defence funded travel the flexibility to withdraw cash rather than using their Defence Travel Card to pay for certain travel benefits directly.

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.

Assessment of compatibility

This Determination is compatible with human rights as it provides members with the flexibility to use their Defence Travel Card to access travel benefits by withdrawing cash up to the limits provided. This is in addition to the methods already available to members to access travel benefits when undertaking Defence funded 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.