Defence Determination, Conditions of service Amendment Determination 2022 (No. 4)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2022 (No. 4)

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 the following technical amendments:
  • Update the decision maker for approving absence days for a member to attend career transition activities.
  • Remove references to the Commonwealth in instances where they are not required to better aid the reader’s understanding of the provision.
  • Remove information which is non-legislative and administrative in nature.
  • Bring a number of provisions within the Principal Determination in line with contemporary drafting standards.
• Redraft Chapter 8 Part 6 of the Principal Determination which provides support during a posting to a member who has a dependant with special needs. The Part has been redrafted into two separate divisions to promote contemporary drafting styles and to better aid the reader’s understanding of the benefits a member may access.
• Clarify the class of travel provisions for members travelling for short-term duty overseas when they are travelling in a group or while pregnant.
• Provide an economy class flight benefit, unless otherwise approved, for travel to and from the overseas duty location for members travelling for Headquarters Joint Operations Command-led overseas peacetime operations, exercises or activities.
• Include a savings provision for members currently on Headquarters Joint Operations Command-led peacetime operations, exercises or activities overseas who have a business class flight to return to Australia, to preserve that benefit.
• Provide additional excess baggage benefits to members and their families as a consequence of the changing COVID-19 pandemic and the effects it has on the movement of baggage to and from overseas posting locations.

Technical amendments made by this Determination 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 by reference

The Determination makes references to sections of the Veterans’ Entitlements Act 1986 and the Human Rights and Equal Opportunity Commission Act 1986. These Acts are 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.

Retrospective application

The retrospective application of any part 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 and 3: 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.

• Schedules 4 and 6: Army, Navy, Air Force, Headquarters Joint Operations Command, the Directorate of Attaché and Overseas Management and Defence Travel Policy were consulted in the development of these Schedules.
• Schedule 5: The Department of Foreign Affairs and Trade, Navy, Army and Air Force 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. 4)

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 March 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.

Section 1 amends section 1.3.88 of the Principal Determination which defines partner. The section is amended to reflect a contemporary drafting style.

Sections 2, 5, 6, 7, 8, 9, 12, 13, 14, 15 and 17 amend section 2.2.4, paragraph 3.2.15.a, paragraph 3.2.37.2.a, subparagraph 3.2.37.2.b.ii, paragraph 3.2.47S.1.c, subparagraph 3.2.52A.2.d.ii, paragraph 3.5.14IA.a, section 4.1.3, paragraph 4.1.5.3.a, subparagraph 4.9.17.1.a.i and section 12.1.1 of the Principal Determination. Each amendment corrects a capitalisation or tense issue that is in a reference to the Permanent Forces or the Reserves.

Section 3 amends subsection 2.2.8.2 of the Principal determination which provides that a member is eligible for 23 approved absence days to attend career transition activities if the decision-maker is satisfied that Service requirements can be met while the member is absent. The subsection has been amended to omit “decision-maker” and substitute “CDF”. The decision makers have been incorporated into the CDF’s Instrument of Authorisation.

Section 4 omits section 2.2.8.6 of the Principal Determination which provides a definition of decision-marker for the purposes of the section. The section has been omitted as a consequence of the changes made by section 3 of this Determination.

Section 10 amends paragraph 3.5.7.c of the Principal Determination which provides that a criterion for a member not being eligible for a bonus is if they have less than 2 years to serve until either retirement or the last day the CDF has allowed a member to serve after reaching their retirement age. The amendment clarifies that the later of the two dates is used.

Sections 11 and 16 amend paragraph 3.5.10.2.a and section 5.5.24 of the Principal Determination which have references to continuous full-time service. The amendments corrects references to continuous full-time service so that they are written consistently with the rest of the Principal Determination.

Sections 18, 19, 24, 26 and 27 amend subparagraph 12.5.5.4.b.i, subparagraph 12.5.5.4.b.ii, subsection 14A.1.11A.4, subsection 14A.1.12.2 and subsection 14A.1.18.2 of the Principal Determination. Each amendment clarifies that a monetary value expressed in dollars is a value in Australian dollars.

Sections 20 and 21 omit and substitute sections 12.7.2 and 12.7.3 of the Principal Determination. The sections have been remade to correct the order of the section numbers.

Section 22 omits an example in subsection 14.4.8.3 of the Principal Determination which provides an example of how to calculate the benefit a member who uses an alternative travel mode or route is eligible for. The example is non-legislative in nature and does not need to be determined.

Section 23 omits and substitutes section 14A.1.11 of the Principal Determination which sets the maximum amount a member is eligible for if they stay at accommodation booked in Australia because they cannot return to their overseas posting location due to the COVID-19 control measures. The section is redrafted simplify the rule and to clarify that a monetary value expressed in dollars is a value in Australian dollars.

Section 25 amends subsection 14A.1.12.1 of the Principal Determination which clarifies who is not a person required to evacuate for the purpose of determining eligibility for larder establishment payment. The amendment corrects a misspelled word.

Section 28 omits and substitutes item 5 of the table at Annex 15.4.A which provides a grouping of certain ranks for the purpose of determining a member’s contribution rates for renting accommodation overseas. The substituted table item inserts a missing paragraph reference in column B.

The changes made by this Schedule promote contemporary drafting standards, and remove content that is administrative and non-legislative in nature. Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 2—Commonwealth reference amendments

Sections 1, 3 to 14, 16 to 20, 22 to 30 and 35 to 59 make amendments to the Principal Determination to remove references to the Commonwealth in instances where they are not required. These changes simply the rules to better aid the readers understanding of the provision.

Section 2 amends paragraph 6.1.10.a of the Principal Determination which provides that a removal related to an overseas posting only counts as one move even when the member’s furniture is stored in Australia. The paragraph is amended to remove the reference to “at Commonwealth expense” and to clarify that the circumstance relates to storage provided under the Principal Determination.

Section 15 amends section 6.5.23 of the Principal Determination which provides that a member is not eligible for a removal to or from a personal location outside Australia. The section is amended to change “Commonwealth will not pay” to “member is not eligible” to clarify that there is no removal benefit payable under the Principal Determination to a member for a removal to or from a personal location outside Australia.

Section 21 amends paragraph 6.5.51.2.a of the Principal Determination which provides one of the dates from which a member’s storage eligibility under section 6.5.63 will be reviewed. The paragraph is amended to change “at Commonwealth expense” to “under this Determination” to clarify that the review date is directly linked to the members next removal provided under the Principal Determination.

Section 31 amends table item 5 of subsection 6.5.78.3 of the Principal Determination. The subsection provides where a non-Service spouse or partner may receive a removal to if their relationship with a member breaks down. Table item 5 provides the amount payable if the non-service spouse or partner is removed to a location in Australia that is not where they lived with the member before they started full-time service. The table item is amended to change “the Commonwealth will pay is limited to the cost” to “payable is limited to the cost” to clarify that the amount payable is limited to what would be payable if the non-Service spouse or partner travelled to the location where the member lived immediately before they started full-time service.

Section 32 amends table item 5 of subsection 6.5.85.1 of the Principal Determination. The subsection provides the removal benefit a dependant is eligible for when a member with dependants dies. Table item 5 provides the amount payable if the dependant is removed to a location in Australia that is not where they lived with the member before they started full-time service. The table item is amended to change “the Commonwealth will not pay more than the cost of” to “cost will not be more than” to clarify that the amount payable is limited to what would be payable if the dependant travelled to the location where the member lived immediately before they started full-time service.

Section 33 amends subsection 6.5.87.2 of the Principal Determination which provides that the member’s dependant is not eligible for costs involved in removing, storing or insuring furniture and effects that they gain after the member’s death. The subsection is amended to change “Commonwealth will not pay” to “member’s dependant is not eligible” to clarify that there is no removal, storage or insurance benefit payable under the Principal Determination for furniture and effects that a dependant gains after the death of a member.

Section 34 amends section 7.1.24 of the Principal Determination which sets out certain costs that a member is not eligible for when undertaking a house-hunting trip in a new posting location. The section is amended to change “The Commonwealth will not pay these” to “A member is not eligible for any of the following” to clarify that a member has no eligibility under the Principal Determination for costs associated with a house-hunting trip that exceeds 3 days and nights in the new location, or costs attributed to anyone other than the member and their adult dependant.

The changes made by this Schedule promote contemporary drafting standards, and remove content that is administrative and non-legislative in nature. Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 3—Dependants with special needs amendments

Section 1 omits and substitutes Chapter 8 Part 6 of the Principal Determination which provides assistance to a member who has a dependant with special needs on posting. The Part has been redrafted into 2 Divisions, which provide the following:

• Section 8.6.1 provides the purpose statement for Chapter 8 Part 6 Division 1. This section is redrafted to improve the readability of the text.
• Section 8.6.2 provides who Chapter 8 Part 6 Division 1 applies to, and includes content previously located in section 8.6.4.
• Section 8.6.3 provides that members are not eligible for assistance under Chapter 8 Part 6 for services that are provides to them by any other Commonwealth body, State or Territory Government department, or Government funded agencies. This content was previously located in section 8.6.5.
• Section 8.9.4 provides how assistance under sections 8.6.6 and 8.6.7 is to be paid. This content was previously located in subsection 8.6.8.5.
• Section 8.6.5 provides that a member is eligible for travel and accommodation for a pre-posting visit to the new posting location. This content was previously located in section 8.6.7.
• Section 8.6.6 provides that a member is eligible for assistance with care or therapy services. This content was previously located in section 8.6.9.
• Section 8.6.7 provides that a member is eligible for financial assistance to hire equipment in their posting location. This content was previously located in section 8.6.10. The content previously located in section 8.6.8 is administrative and non-legislative and is removed, except for subsection 8.6.8.5 which is moved into section 8.6.5 by this Schedule.
• Section 8.6.8 provides that a member is eligible for a variety of housing related benefits. This content was previously located in section 8.6.12.
• Section 8.6.9 provides that a member is eligible for unpacking assistance. This content was previously located in section 8.6.13.
• Section 8.6.10 provides the purpose statement for Chapter 8 Part 6 Division 2.
• Section 8.6.11 provides who Chapter 8 Part 6 Division 2 applies to.
• Section 8.6.12 provides additional assistance a member is eligible for under Chapter 8 Part 6 Division 2. This content was previously located in subsection 8.6.12.5, which been redrafted to include unpacking assistance as additional assistance that a member is eligible to.

The changes made by this Schedule promote contemporary drafting standards, and remove content that is administrative and non-legislative in nature. Technical amendments made under this Schedule do not alter the underlying policies, or the benefits which are currently provided.

Schedule 4—Class of air travel amendments

Section 1 omits paragraph 13.2.4.c from the Principal Determination which sets out who the Division “Class of air travel” does not apply to, including groups of members who hold the rank of Colonel or lower, travelling together by commercial air service on operations, exercises, training or to perform ceremonial duties. The section purported to provide benefits to members travelling in groups. This rules provided in this section are now provided is section 13.2.5A which has been inserted by section 2 of this Schedule.

Section 2 omits and substitutes subsection 13.2.5 of the Principal Determination which provides special requirements for a member travelling on short-term duty overseas. The subsection has been amended to clarify that a member is eligible for business class travel if they are pregnant at the time of travel and when the flight is longer than 5 hours.

Section 2 also inserts new section 13.2.5A and section 13.5.2B into the Principal Determination. The new sections provide the following.

• Section 13.2.5A provides that a group of members who are travelling together for the purpose of an exercise, training, to perform ceremonial duties or for a study tour, are eligible for economy class travel. It also provides that a member who is on an overseas study tour or holds the rank of Brigadier or higher, is eligible to travel at a higher class if the CDF is satisfied that it is reasonable, taking into consideration a number of specified factors.
• Section 13.2.5B provides that if a member is travelling for the purpose of a Headquarters Joint Operations Command-led overseas peacetime operation, exercise or activity, the member is eligible for economy class travel. It also provides that a member is eligible to travel at a higher class if the CDF is satisfied that it is reasonable, taking into consideration a number of specified factors.

Schedule 5—Overseas excess baggage amendments

Section 1 amends subsection 14.4.10.1 of the Principal Determination which provides the baggage benefits for a member and their dependants who are authorised to travel to and from an overseas posting location. The subsection is amended to change “travel to” to “travel to or from” to provide clarity on the benefit for the reader.

Section 2 amends section 14.4.11 of the Principal Determination which sets out the amount of excess baggage a member and their dependents are eligible for. The amendment inserts subsections 2A and 2B, which provide additional excess baggage benefits of up to 60 kg of total baggage weight or up to 4 suitcases in total. This benefit is in response to the impact of the COVID-19 pandemic on international relocations and only applies to travel to or from specified locations between 1 December 2021 and June 2022.

Section 3 omits subsection 14.4.12.3 of the Principal Determination which provides that the cost of accompanied baggage and unaccompanied baggage must not be more than the cost of 45 kg of accompanied baggage. The subsection is non-legislative and administrative in nature and is removed.

Schedule 6—Savings provisions

Section 1 provides that a member who, on the date of commencement of Schedule 4, is on Headquarters Joint Operations Command-led overseas peacetime operation, exercise or activity, and has been issued a ticket for a business class flight for return to Australia, remains eligible for that business class flight.

Annex B

 Defence Determination, Conditions of service Amendment Determination 2022 (No. 4)

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 the following technical amendments:
  • Update the decision maker for approving absence days for a member to attend career transition activities.
  • Remove references to the Commonwealth in instances where they are not required to better aid the readers understanding of the provision.
  • Remove information which is non-legislative and administrative in nature.
  • Bring a number of provisions within the Principal Determination in line with contemporary drafting standards.

• Redraft Chapter 8 Part 6 of the Principal Determination which provides support during a posting to a member who has a dependant with special needs. The Part has been redrafted into two separate divisions to promote contemporary drafting styles and better aid the reader’s understanding of the benefits a member may access.
• Clarify the class of travel provisions for members travelling for short-term duty overseas when they are travelling in a group or while pregnant.
• Provide an economy class flight benefit, unless otherwise approved, for travel to and from the overseas duty location for members travelling for Headquarters Joint Operations Command-led overseas peacetime operations, exercises or activities.
• Include a savings provision for members currently on Headquarters Joint Operations Command-led peacetime operations, exercises or activities overseas who have a business class flight to return to Australia, to preserve that benefit.
• Provide additional excess baggage benefits to members and their families as a consequence of the changing COVID-19 pandemic and the effects it has on the movement of baggage to and from overseas posting 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.

Assessment of compatibility

Schedules 1, 2 and 3 of this Determination makes technical amendments to the Principal Determination and does not alter the underlying policies, or the benefits which are currently provided. They do not engage any human rights issues.

Schedules 4 and 6 are compatible with human rights as they provide members who undertake short-term duty overseas return flights to Australia when travelling for a specific purpose. It does so as a part of the conditions of service package provided to members.

Schedule 5 is compatible with human rights in that it provides additional overseas excess baggage benefits to members and their families in response to the effects of the COVID-19 pandemic. It does so as a part of the conditions of service package provided to members.

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.