Defence Determination, Conditions of service Amendment Determination 2022 (No. 16)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2022 (No. 16)

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 to do the following:

• To make technical amendments to remove references, or provisions relating, to 'amenities based' classifications within Chapter 7 Part 6. Amenities based classifications are no longer used to classify Service residences and can therefore be removed.
• To include additional medical services and products for a member’s dependants that the member is eligible for the reimbursement of costs under the ADF Family Health Program.
• To amend the daily rate of deployment allowance provided to members who are force assigned to Operation Lilia and Operation PALADIN and to provide a transitional provision for members who were deployed in Lebanon or Syria on Operation PALADIN between 10 November 2022 and the commencement of this Determination.
• To make changes to the rate of higher duties allowance which is payable to members when they are directed to perform duties attributed to a higher rank or higher position.

Operational Details

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

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:

• Schedule 1: Defence Relocations and Housing.
• Schedule 2: Joint Health Command, Recruitment and Retention Division within Defence People Group and Navy Health.
• Schedules 3 and 5: The rule maker was satisfied that the changes made by this Schedule are technical in nature and consultation was not required.
• Schedule 4: Navy, Army, Air Force and the Remuneration and Retention Division within Defence People Group.

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

Annex A

Defence Determination, Conditions of service Amendment Determination 2022 (No. 16)

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 this Determination not elsewhere covered commence on the day after the instrument is registered.
• Schedules 1 to 3 and Schedule 5 of the Determination commence on 8 December 2022.
• Schedule 4 of the Determination commences on 2 February 2023.

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—Removal of amenities based classification amendments

Items 1 to 27 amend various provisions within the Principal Determination to remove references, or provisions relating, to amenities based classification of Service residences, remove information which in administrative and non-legislative in nature and to promote the use of contemporary drafting styles. The following have been amended.

• Section 7.6.4 which provides when a home is a suitable services residence.
• Section 7.6.5 which provides how Service residences are classified.
• Section 7.6.9 which provides the purpose of Chapter 7 Part 6 Division 3: Market-rent-based classification of a Service residence.
• Section 7.3.13 which provides the rent band that applies depending on a member's rank group.
• Chapter 7 Part 6 Division 4: Amenity-based classification of a Service residence which provides specific rules about amenity-based Service residences.
• Section 7.6.28 which provides when a member is eligible for a Service residence.
• Section 7.6.31 which provides when a member can chose a 2-bedroom Service residence.
• Section 7.6.33 which provides when an offer of a Service residence is considered reasonable.
• Section 7.6.34 which provides when a member can reject an offer of a Service residence.
• Section 7.6.41 which provides the contribution a member must make for a Service residence or rent band choice home.
• Section 7.6.45 which provides what contribution a member must make if they are allocated a Service residence above their rank group.
• Section 7.6.46 which provides what contribution a member must make if they are allocated a Service residence below their rank group.
• Section 7.6.47 which provides a table which shows how a member's contribution is affected by the rules in sections 7.6.45 and 7.6.46.
• Section 7.6.48 which provides the contribution a member must make for a Services residence if they are promoted or commissioned.
• Section 7.6.53 which provides the effect on a member’s contribution for a Services residence if the Service residence that they are occupying is reclassified.
• Section 7.6.59 which provides that a member a member who no longer lives with dependants or adult children is no longer eligible for a Service residence.
• Annex 7.A which provides the contribution amounts a member must pay for a Service residence.

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

Schedule 2—ADF family health program amendments

Item 1 inserts section 8.9.6A into the Principal Determination. The new section provides the amount that an eligible person may be reimbursed in a financial year for each eligible dependant for services and products provided under section 8.9.7, section 8.9.7.A and section 8.9.7B. This provision is currently provided under subsection 8.9.7.1. Conditions for the reimbursement of the benefit that are currently under subsection 8.9.7.4 and 8.9.7.5 have also been moved to this section.

Item 2 repeals and substitutes section 8.9.7 of the Principal Determination which provides that a claimant is eligible for the reimbursement of the costs for specialist and allied health services. The section has been amended to insert 2 new health services and products that an eligible person may be reimbursed for any out of pocket expenses from 15 December 2022. These services include vaccinations that are provided by a chemist or other non-general practice, and prescriptions that are under the Pharmaceutical Benefits Scheme. The section has also been restructured to remove provisions that are now provided under section 8.9.6A.

Item 3 inserts section 8.9.7A and section 8.9.7.B into the Principal Determination. The new sections provide the following.

• Section 8.9.7A provides that a claimant can be reimbursed out of pocket expenses from 15 December 2022 for services and products that help reduce tobacco use and nicotine addiction including nicotine replacement therapy and community based programs.
• Section 8.9.7B provides that a claimant can be reimbursed the cost of ambulance cover that is not a part of a private health insurance hospital or extras policy for an eligible dependant from 15 December 2022. A legislative note has been included to inform users that any expenses for an ambulance service that is not covered by the ambulance cover the costs are not reimbursable under this section.

Item 4 amends section 8.9.8 of the Principal Determination which provides that a claimant remains eligible for the benefits under Chapter 8 Part 9 for 12 months after the death of the member. This section has been amended to update references consequential to the amendments made by this Schedule.

Schedule 3—Deployment allowance amendments

Items 1 and 2 amend the table in subsection 17.7.6.1 of the Principal Determination which provides the daily rate of deployment allowance a member is eligible for under section 17.7.5.

• Item 1 amends table item 3A updating the daily rate of deployment allowance for Operation LILIA.
• Item 2 amends table item 9 by updating the daily rates of deployment allowance for Lebanon and Syria, which are the specified areas, for Operation PALADIN.

Schedule 4—Higher duties allowance amendments

Item 1 repeals and substitutes section 4.1.4 of the Principal Determination which provides members who are not eligible to receive higher duties allowance. The section has been amended to remove reference to a member in the Navy or Air Force, who is in the Specialist Pathway of the Officer Aviation Pay Structure, as these members are now eligible to receive higher duties allowance. The section has also been amended to include Acting Sub Lieutenants who are performing the duties of a Sub Lieutenant, Sub Lieutenants who are performing the duties of a Lieutenant and Pilot Officers performing the duties of a Flying officer as members who are not eligible to receive higher duties allowance. This is because the duties attributed to these ranks are so similar.

Item 2 repeals and substitutes section 4.1.6 of the Principal Determination which provides the rate of higher duties allowance a member is to be paid when they are directed to perform duties attributed to a higher rank or higher position. The section has been amended and now provides the following.

• If the higher duties that the member is performing attracts a salary from within the schedule that currently applies to the member — the rate of allowance is the difference between the salary payable to the member and the lowest rate of salary payable to a member holding one rank higher than the member in the same pay grade.
• If the member is paid salary under the Officer Aviation Pay Structure — the rate of allowance is the difference between the salary payable to the member and the lowest rate of salary for the member’s competency level within the Command or Staff pathway that would apply if the member were to be promoted to one rank above their current rank. 
• If the member is paid salary under a specialist career structure — the rate of allowance is the difference between the salary payable to the member and the lowest salary rate for the member’s competency level at the next rank.
• If the higher duties that the member is performing attracts a salary from outside the schedule that currently applies to the member or salary non-reduction arrangements under Chapter 3 Part 2 Division 5 applies to the member — the rate of allowance is 5% of the salary payable to the member.

Schedule 5—Transitional provisions

Clause 1 defines Defence Determination 2016/19 for the purpose of this Schedule.

Clause 2 provides a transitional provision for a member who, between 10 November 2022 and the commencement of this Determination, was eligible for deployment allowance under section 17.7.5 of the Principal Determination as in force immediately before the commencement of this Determination. The daily rate of deployment allowance for a member force assigned to Operation PALADIN in Lebanon or Syria is set out in item 9 of the table in subsection 17.7.6.1 of the Principal Determination as though the changes made by item 2 of Schedule 3 of this Determination applied at the time. The rate of the allowance is reduced by any amount the member was eligible to be paid between 10 November 2022 and the commencement of this Determination.

Annex B

Defence Determination, Conditions of service Amendment Determination 2022 (No. 16)

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:

• To make technical amendments to remove references, or provisions relating, to 'amenities based' classifications within Chapter 7 Part 6. Amenities based classifications are no longer used to classify Service residences, and can therefore be removed.
• To include additional medical services and products for a member’s dependants that the member is eligible for the reimbursement of costs.
• To amend the daily rate of deployment allowance provided to members who are force assigned to Operation Lilia and Operation PALADIN and to provide a transitional provision for members who were deployed in Lebanon or Syria on Operation PALADIN between 10 November 2022 and the commencement of this Determination.
• To make changes to the rate of higher duties allowance which is payable to members when they are directed to perform duties attributed to a higher rank or higher position.

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 to an attainable standard of physical and mental health

The protection of a person’s right to an attainable standard of physical and mental health engages Article 12 of the International Covenant on Economic, Social and Cultural Rights. Article 12 recognises the right of everyone to achieve the full realisation of this right through the provision of medical assistance.

Assessment of compatibility

Schedule 1 makes technical amendments and does not engage any of the applicable rights or freedoms.

Schedule 2 is compatible with human rights as it promotes access to services and products which promote a person’s physical and mental wellbeing.

Schedules 3 and 5 are compatible with the principles of human rights because it provides additional financial benefits to members, which forms part of their conditions of service, as a consequence of serving in an operational area.

Schedule 4 is compatible with human rights as it provides an allowance to members when they are directed to perform duties attributed to a higher rank or higher position.

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.