Defence Determination, Conditions of service Amendment Determination 2022 (No. 2)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment) Determination 2022 (No. 2)

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 obligation 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 technical amendments that correct cell formatting in tables, correct grammatical errors and internal references, promote the use of the correct terminology and bring a number of sections into line with contemporary drafting standards. Technical amendments are routine in nature, and do not alter the underlying policy.
• Change the approved club for member’s posted to USA – Manhattan from ‘New York Health and Racquet Club’ to ‘Life Time’ as a consequence of a name change as a consequence of a merger between clubs.
• Modernise the drafting of the ADF family health program and to provide for the following:
  • To recognise the registration day of a newborn child as their date of birth if they are registered in the family health program within 3 months of being born.
  • To extend the period of reimbursement to 12 months after a member is deceased.
  • To expand the services for which a reimbursement can be made to include any medically prescribed appliances and to include remedial massages services.
• Omit Chapter 15 Part 9, which provides benefits in circumstances then a member or their dependants die overseas. The rules are remade Chapter 12 Part 7, which applied to both members on short-term duty overseas and members on long-term postings overseas.
• Update the hardship grades for hardship locations.

Operational Details

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

Incorporation by reference

The Determination makes references to sections of the Health insurance Act 1982 and the Health Insurance (Allied Health Services) Determination 2014. This legislation 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 Legislation Act applies is incorporated as in force from time to time, unless otherwise stated.

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 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 and 5: Army, Navy, Air Force and the Directorate of Attaché and Overseas Management were consulted in the development of these Schedules.
• Schedule 2: Joint Health Command was consulted in the development of this Schedule.
• Schedule 3: Consultation was not considered necessary for the amendments in this Schedule. The changes are technical in nature and do not amend the provision of benefits.
• Schedule 4: The Department of Foreign Affairs and Trade, and the Department of Home Affairs 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. 2)

Operational details

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

Section 2 provides that the Determination commences on 3 February 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 and club membership amendments

Section 1 omits and substitutes subsection 3.5.10.3 of the Principal Determination which sets out what is considered effective service for the purpose of a bonus. The subsection is redrafted so that the cells between items 2 and 3 in the ‘Effect’ column are merged, resulting in the entire period of unpaid leave for less than 21 calendar days counts as effective service.

Section 2 amends subsection 9.5.9.2 of the Principal Determination which sets out the travel period for business class travel. The note at subsection 9.5.9.2 is amended to correct a grammatical error.

Section 3 amends subsection 15.6.30.3 of the Principal Determination which sets out when a member ceases to be eligible for education assistance. An incorrect internal reference is corrected from ‘2.d’ to ‘1.d’.

Section 4 amends subsection 15.8.2.1 of the Principal Determination which sets out the member’s location for the purpose of club membership. Paragraph c is inserted to state that if a member is posted to Manhattan and directed to live in Manhattan, the location is USA – Manhattan.

Section 5 amends subsection 15.8.2.2 of the Principal Determination which specifies the approved club in the member’s location for the purpose of pursing sporting, recreational and fitness activities. The table item is amended to change the reference to ‘New York Health and Racquet Club’ to ‘Life Time’ as a result of a name change.

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

Schedule 2—National ADF family health program amendments

Section 1 omits and substitutes Chapter 8 Part 9 of the Principal Determination which provides reimbursement for health costs incurred within Australia by a dependant of a member registered under the National ADF family health program. The Part as been redrafted and provides the following.

• Section 8.9.1 provides the purpose statement for Chapter 8 Part 9. This section has been redrafted to improve the readability of the text.
• Section 8.9.2 provides the definitions that apply to Chapter 8 Part 9. The section has been redrafted and now provides the definitions that were previously located in section 8.9.3. In addition, the definition of ‘allied health service’ is added, and the definition of ‘the program’ is changed to ‘family health program’ to improve readability. The definition of ‘eligible dependant’ is amended to include material previously located in subsection 8.9.7.3 of the Principal Determination.
• Section 8.9.3 provides who Chapter 8 Part 9 applies to. This section was previously located in section 8.9.2.
• Section 8.9.4 provides that the registration day of a newborn child in the family health program is their date of birth if they are registered within 3 months of being born. The content previously located in section 8.9.4 of the Principal Determination is remade in section 8.9.6.
• Section 8.9.5 requires a claimant applying for reimbursement under Chapter 8 Part 9 must apply within 12 months of the services or products being provided. The content previously located in section 8.9.5 of the Principal Determination is remade in section 8.9.7.
• Section 8.9.6 provides that a member is eligible to be reimbursed for out-of-pocket expenses in a general practise setting. The content previously located in section 8.9.6 is administrative and non-legislative in nature and is removed.
• Section 8.9.7 provides that a member is eligible to be reimbursed for out-of-pocket expenses incurred for specialist services. The section has also been redrafted so that a claimant is eligible for reimbursement for any medically prescribed appliances, not only medically prescribed dental and optical appliances. The content previously located in section 8.9.7 that was legislative in nature is remade in sections 8.9.2 and 8.9.5.
• Section 8.9.8 extends the period of reimbursement under the family health program to include expenses incurred by an eligible dependant of a deceased member up to 12 months after a member dies. The content previously located in section 8.9.8 of the Principal Determination is moved to section 8.9.5.

Schedule 3—Death of member or dependant overseas amendments

Section 1 inserts Chapter 12 Part 7 to the Principal Determination which contains content previously located in Chapter 15 Part. The Part has been remade to enable the benefits to be available to members on short-term duty overseas and those on long-terms postings overseas. The amendments provide the following:

• Section 12.7.1 provides the purpose statement for Chapter 12 Part 7, and includes content that was previously located in section 15.9.1. This section has been redrafted to improve the readability of the rules.
• Section 12.7.2 provides the definitions that apply to Chapter 12 Part 7. The section has been inserted to provide the definition of ‘beneficiary’.
• Section 12.7.3 provides who Chapter 12 Part 7 applies to, and includes content that was previously located in section 15.9.2.
• Section 12.7.4 provides that a member’s beneficiary is eligible for assistance if the member dies overseas, and includes content that was previously located in section 15.9.3.
• Section 12.7.5 provides that a member is eligible for assistance if a dependent living at their posting location dies, and includes content that was previously located in section 15.9.3A.
• Section 12.7.6 provides that a dependant of a member who dies during a long-term posting overseas is still eligible for benefits they may have been eligible for under Chapters 14 or 15 of the Principal Determination, subject to various conditions, and includes content that was previously located in section 15.9.4.
• Section 12.7.7 provides that if a member dies overseas their beneficiary is eligible for a reimbursement if they sell the member’s vehicle or towable item at a loss, and includes content that was previously located in section 15.9.5.

Section 2 omits section 13.2.15 of the Principal Determination which provides that if a member or dependant dies while on short-term duty overseas section 15.9.3 or section 15.9.3A applies. The section is administrative in nature and is removed.

Section 3 amends the note in section 14.5.2 of the Principal Determination which identifies members Chapter 14 Part 5 of the Principal Determination apply to. The section is amended to update the cross references in the note.

Section 4 omits Chapter 15 Part 9 of the Principal Determination which provides assistance to family members if a member or dependant dies overseas. The Part is remade by section 1 of this Schedule as Chapter 12 Part 7.

Schedule 4—Hardship grade amendments

Sections 1 to 11 amend 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 hardship location grades have been reviewed to align with information provided by the whole-of-Australian-Government data provider, Employment Conditions Abroad, and are adjusted to reflect changes in conditions within specific hardship locations. The amendments update the following hardship location grades.

• Table item 2: column 4 amended from ‘D’ to ‘C’.
• Table item 11: column 4 amended from ‘E’ to ‘F’.
• Table item 18: column 4 amended from ‘C’ to ‘B’.
• Table item 21: column 4 amended from ‘E’ to ‘D’.
• Table item 28: column 4 amended from ‘D’ to ‘C’.
• Table item 31: column 4 amended from ‘D’ to ‘E’.
• Table item 32: column 4 amended from ‘D’ to ‘E’.
• Table item 33: column 4 amended from ‘E’ to ‘F’.
• Table item 34: column 4 amended from ‘D’ to ‘E’.
• Table item 35: column 4 amended from ‘F’ to ‘E’.
• Table item 46: column 4 amended from ‘D’ to ‘C’.

Schedule 5—Transitional provisions

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

Section 2 provides that this Schedule applies to a member who was posted to USA–Manhattan and was eligible for the cost of membership in USA–Manhattan under section 15.8.4 or 15.8.5 of the Principal Determination between 1 August 2020 and the commencement of this Determination.

Section 3 provides that a member is eligible for the cost of membership under section 15.8.4 or 15.8.5 of the Principal Determination had Schedule 1 of this Determination been in force between 1 August 2020 and the commencement of this Schedule. The section also provides that the amount a member is eligible for under this section is reduced by the amount the member received for the cost of a membership under section 15.8.4 or 15.8.5 of the Principal Determination between 1 August 2020 and the commencement of this Determination that has not been repaid.

Annex B

 Defence Determination, Conditions of service Amendment Determination 2022 (No. 2)

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 technical amendments that correct cell formatting in tables, correct grammatical errors and internal references, promote the use of the correct terminology and bring a number of sections into line with contemporary drafting standards. Technical amendments are routine in nature, and do not alter the underlying policy. These amendments will not change the benefits which are currently provided.
• Change the approved club for member’s posted to USA – Manhattan from ‘New York Health and Racquet Club’ to ‘Life Time’ as a consequence of a name change. Defence has identified it as the most appropriate club for member’s posted to that location.
• Modernise the drafting of the ADF family health program and to provide for the following:
  • To recognise the registration day of a newborn child as their date of birth if they are registered in the family health program within 3 months of being born.
  • To extend the period of reimbursement to 12 months after a member is deceased.
  • To expand the services a reimbursement for which a reimbursement can be made to include any medically prescribed appliances and to include remedial massages services.
• Omit Chapter 15 Part 9, which provides benefits in circumstances then a member or their dependants die overseas. The rules are remade Chapter 12 Part 7, which applied to both members on short-term duty overseas and members on long-term postings overseas.
• Update the hardship grades for hardship locations.

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.

Assessment of compatibility

Schedules 1 and 5 provide just and favourable conditions of work for members by providing a replacement approved club for members and their dependants to join when the member is posted to Manhattan, United States of America, so members and their dependants in that location can continue to pursue sporting, recreational and fitness activities.

Schedule 2 is compatible with human rights as it provides additional benefits to members and eligible dependants as a part of the conditions of service package provided to members. In particular, the Determination assists members and dependants with the cost of medical expenses by providing reimbursement of health costs incurred by the member’s dependants.

Schedule 3 is compatible with human rights by providing additional benefits to members and their dependants as a part of the member’s conditions of service package in circumstances when the member or their dependant dies in an overseas location.

Schedule 4 is compatible with human rights in that it promotes an adequate standard of living in overseas locations having regard to specific hardships that may be experienced in the location as a part of a member’s conditions of service package.

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.