Defence Determination, Conditions of service Amendment Determination 2022 (No. 8)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2022 (No.8)

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:

• Amend the definition of short-term duty overseas to provide that the CDF may extend the short-term duty period.
• Change the name of Service police investigator plain clothes allowance to plain clothing allowance, and provide a member posted to the CDF Signals Detachment a benefit to cover additional clothing costs.
•  Make miscellaneous amendments to:

• Remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision. A number of sections have been redrafted as a consequence of these amendments to bring them into line with contemporary drafting standards and to remove information that is non-legislative in nature.
• Remove non-legislative information in relation to members who have adult dependants who are also members and both may be eligible to receive the benefit. Legislative notes have also been added throughout the Principal Determination to alert the reader that a benefit may be affected in these circumstances.
• Make technical amendments that promote the use of the correct terminology and bring a number of definitions into line with contemporary drafting standards.
• Update position titles and amending the language relating to the use of approved forms.

Miscellaneous amendments are routine in nature, and do not alter the underlying policy.

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

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

• Schedule 1: For sections 13, 14, 23 and 29, 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 the amendments. The rule maker was satisfied that further consultation was not required

• Schedules 2 and 5: Navy, Army and Air Force during the development of this Schedule.
• Schedule 3: Navy.

Consultation was not considered necessary for Schedule 4 amendments. 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.

Consultation was not considered necessary for Schedule 6 amendments as this falls within the bounds of routine, housekeeping of an established benefit. The adjustments are either aligned with the Consumer Price Index or from data from a recognised data provider. They are made according to established policy.

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

Annex A

Defence Determination, Conditions of service Amendment Determination 2022 (No. 8)

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 the instrument is registered.
• Schedules 1 to 5 of the Determination commences on 12 May 2022.
• Schedule 6 of the Determination commences on 7 July 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—Chapter 12 Definitions

Items 1 repeals the see note in section 1.3.21 of the Principal Determination. The note is non-legislative and administrative in nature and is removed.

Items 2 and 4 insert legislative notes in sections 1.3.55 and 1.3.57 of the Principal Determination to provide clarity to the reader by referring them to related definitions. Item 2 inserts a note after subsection 1.3.55.1 that directs the reader to section 12.3.1 for the definition of ‘posting location’ in relation to a long-term posting overseas. Item 4 inserts a note after subsection 1.3.57.1 that directs the reader to section 12.3.16 for the definition of ‘posting period overseas’.

Item 3 and 5 repeal sections 1.3.56 and 1.3.58 of the Principal Determination which provide the definitions of Posting location – overseas and ‘posting period overseas’. The definitions are non-legislative and administrative in nature and are removed.

Item 6 repeals and substitutes section 12.3.1 of the Principal Determination which provides the purpose of definition which are provided in Chapter 12 of the Principal Determination. The section has been redrafted to provide simple definitions and to promote the use of contemporary drafting standards and includes the following changes:

• Insert the definition of ‘accompanied member’ which is set out in section 12.3.2 of the Principal Determination.
• Insert the definition of ‘allowable travel cost’ which is set out in section 12.3.3 of the Principal Determination.
• Insert the definition of ‘COVID-19 control measure’ that is removed by item 28 of this Schedule.
• Insert the definition of ‘data service provider’ that is removed by item 9 of this Schedule.
• Insert the definition of ‘dependant’ which is set out in section 12.3.5 of the Principal Determination.
• Insert the definition of ‘deployment’ that is removed by item 10 of this Schedule.
• Insert the definition of ‘hardship location’ that is removed by item 30 of this Schedule.
• Insert the definition of ‘long-term posting overseas’ which is set out in section 12.3.9 of the Principal Determination.
• Insert the definition of ‘most economic means’ that is removed by item 15 of this Schedule.
• Insert the definition of ‘non-warlike service’ that is removed by item 16 of this Schedule.
• Insert the definition of ‘overseas post’ that is removed by item 19 of this Schedule.
• Insert the definition of ‘parent’ that is removed by item 20 of this Schedule.
• Insert the definition of ‘post index’ which is set out in section 12.3.14A of the Principal Determination.
• Insert the definition of ‘posting location’ that is removed by item 21 of this Schedule.
• Insert the definition of ‘posting period overseas’ which is set out in section 12.3.16 of the Principal Determination.
• Insert the definition of ‘serious illness’ which is set out in table item 2 of section 1.3.72 of the Principal Determination.
• Insert the definition of ‘short-term duty overseas’ which is set out in section 12.3.18 of the Principal Determination.
• Insert the definition of ‘specified area’ that is removed by item 32 of this Schedule.
• Insert the definition of ‘time zone hour’ which is set out in section 12.3.19 of the Principal Determination.
• Insert the definition of ‘travel time’ that is removed by item 25 of this Schedule.
• Insert the definition of ‘unaccompanied member’ that is removed by item 24 of this Schedule.
• Insert the definition of “very serious illness” that is removed by item 34 of this Schedule.

Item 7 amends section 12.3.2 of the Principal Determination which provides the definition of ‘accompanied member’. Paragraph 12.3.2.1.c has been repealed and substituted to incorporate the exception into the rule to promote contemporary drafting styles.

Item 8 repeals and substitute section 12.3.3 of the Principal Determination which provides the definitions of ‘allowable travel cost’. The definition is redrafted to promote contemporary drafting styles.

Items 9, 10, 15, 16, 19 to 21, 24, 25, 28, 30 and 32 repeal various provisions in the Principal Determination which are relocated to section 12.3.1 of the Principal Determination by item 6 of this Schedule.

Items 11, 12 and 18 repeal various sections in the Principal Determination which provide definitions that are non-legislative and administrative in nature.

Items 13 and 14 amend section 12.3.9 of the Principal Determination which provides the definition for long-term posting overseas.

• Item 13 amends paragraph 12.3.9.1.a which provides that a long-term posting can be a continuous period of duty in an overseas country for a period longer than 6 months. The paragraph has been amended to provide that it does not include a period of short-term duty overseas that has been extended under subsection 12.3.18.2 which has been inserted by item 14 of this Schedule.
• Item 14 amends paragraph 12.3.9.1.c which provides that a long-term posting can be a period of short-term duty which the CDF extends beyond 6 months. The paragraph has been amended to provide that this paragraph does not apply to a period of short-term duty that has been extended under subsection 12.3.18.2 which has been inserted by item 14 of this Schedule.

Items 17 and 31 amend sections 12.3.11 and 17.1.2 of the Principal Determination. Item 17 repeals section 12.3.11 which provides the definition of ‘operational area’, which is relocated to section 17.1.2 of the Principal Determination by item 31 of this Schedule.

Items 22 and 27 amend sections 12.3.17 and 14A.1.2 of the Principal Determination. Item 22 repeals section 12.3.17 which provides the definition of ‘senior ADF representative’, which is relocated to section 14A.1.2 of the Principal Determination by item 27 of this Schedule.

Item 23 repeals and substitutes section 12.3.18 of the Principal Determination which provides the definition of short-term duty overseas. The section has been amended to include a provision that allowance that a period of short-term duty may be extended by the CDF if satisfied that it is necessary. The extended period of short-term duty must not exceed a period of 7 months. The section has also been amended to provide clarity and to reflect current drafting standards.

Item 26 amends subsection 14.6.14.3 of the Principal Determination which provides that a member and their dependant remain eligible for travel under Chapter 16 Part 4 to a regional leave centre or relief leave centre during an evacuation. The subsection is amended to change the reference to ‘relief centre’ to relief leave centre’ to correct a typographical error.

Item 29 amends section 15.3.40 of the Principal Determination which provides travel benefits for a member’s dependants to join the member at an overseas location when their long-term posting or short-term duty period has been extended. A new subsection 15.3.40.1A has been inserted to provide that section 15.3.40 does not apply when a member’s period of short-term duty has been extended under subsection 12.3.18.2 which has been inserted by item 14 of this Schedule.

Items 33 and 35 amend sections 17.1.2 and 17.7.11 of the Principal Determination. Item 33 repeals section 17.1.2 which provides the definition of ‘threat level’, which is relocated to section 17.7.11 of the Principal Determination by item 35 of this Schedule.

Item 34 repeals the definition of ‘very serious illness’ in section 17.1.2 of the Principal Determination. The definition is already located in section 1.3.78 and does not need to be duplicated in this section and is removed.

Schedule 2—Dual entitlement amendments

Item 1 repeals and substitutes subsection 1.6.1.1 of the Principal Determination which lists the benefits that are affected if an ADF member has an adult dependant who is eligible for the same benefit at the same time. The substituted subsection uses a contemporary drafting style that promotes readability.

Item 2 repeals and substitutes subsection 1.6.1.3 of the Principal Determination which provides the treatment of a benefit that a member is eligible for if the member’s adult dependant is eligible for a similar benefit. The section has been redrafted to promote the use of contemporary drafting styles and to remove see notes that are not legislative in nature and do not need to be determined.

Items 3 to 6 and 9 to 14 make amendments to various sections of the Principal Determination to insert legislative notes to refer the reader to section 1.6.1 when dual entitlement provisions apply.

Items 7 and 8 amend section 6.2.4 of the Principal Determination which compensate a member for loss on the sale of a private vehicle if the member sold the private vehicle because they are relocated to another posting location within Australia or they are deployed for a period of 6 months or more. The amendments remove a subsection that duplicates the effect of section 1.6.1 and inserts a legislative note at the end of the section that references section 1.6.1.

Schedule 3—Miscellaneous amendments

Item 1 amends Annex 3.5.G of the Principal Determination which provides the form used for the offer and acceptance of a retention bonus. The position titles ‘Director Navy People Career Management Agency/Deputy Director Navy People Career Management Agency’ have been omitted and substituted with the position titles ‘Director Navy Career Performance and Support/Deputy Director Navy Career Performance and Support’ to reflect current position titles within Navy.

Item 2 amends subsection 8.6.12.2 of the Principal Determination which provides for the manner in which the member with a dependant with special needs must apply for additional assistance when there is no removal to a new posting location. The words ‘any approved forms’ have been omitted and substituted with ‘the approved form’ to provide clarity.

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

Schedule 4—Commonwealth amendments

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

Items 1 to 4, 9, 12 to 15, 18 and 20 redraft various provisions of the Principal Determination to remove references to the Commonwealth which are not required to aid the readers understanding of the provision and to promote contemporary drafting styles. The redrafted provisions are policy neutral and do not change the operation of the rules.

Items 5 repeals and substitutes section 6.5.16 of the Principal Determination which sets out when a member is eligible for storage expenses, and the amount they can be reimbursed. The section is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to improve the clarity of the benefit provided when a member undertakes a privately arranged removal.

Item 6 repeals and substitutes subsection 6.5.19A.4 of the Principal Determination which provides that a removal under section 6.5.19A is limited to the amount a member would have been eligible for to move their household furniture and effects to their new posting location from certain locations. The subsection is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision. The note is non-legislative and administrative in nature and is removed.

Item 7 repeals subsection 6.5.26.3 of the Principal Determination which sets out that furniture and effects that are not removed to the gaining location may be stored under Chapter 6 Part 5 Division 7. The subsection is non-legislative and administrative in nature and is removed.

Item 8 repeals and substitutes subsection 6.5.30.7 of the Principal Determination which provides that a member is eligible to be reimbursed for the costs of a removal when the anticipated long-term posting does not happen for service reasons. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to promote contemporary drafting styles. The item also adds subsection 6.5.30.8, which inserts text previously provided by subsection 6.5.30.7.

Item 10 repeals and substitutes section 6.5.32 of the Principal Determination which provides that a member is eligible for the removal of their furniture and effects before the effective date of posting if a posting authority has been issued and the CDF is satisfied it is necessary. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to promote contemporary drafting styles.

Item 11 repeals and substitutes section 6.5.33 of the Principal Determination which sets out when a member is eligible for removal and storage if a posting is changed or cancelled for service reasons. The section is redrafted to remove 3 references to the Commonwealth which are not required to aid the readers understanding of the provision and to promote contemporary drafting styles. The item also adds subsection 6.5.33.3 which inserts text previously provided by the table in subsection 6.5.33.2

Item 16 repeals and substitutes section 6.5.57 of the Principal Determination which provides that a member living in a suitable own home in their posting location is not eligible for storage unless the CDF is satisfied the items are the same as non-portable items in their own home. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision, combining the two subsections.

Item 17 repeals the note in paragraph 6.5.63.4.a of the Principal Determination which provides that when a member’s eligibility for storage stops, Commonwealth insurance cover on the stored goods also stops. The note is non-legislative and administrative in nature and is removed.

Item 19 repeals and substitutes subsection 6.5.80.1 of the Principal Determination which provides a non-Service partner is eligible for the removal of items if certain conditions apply. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to improve the clarity of the benefit provided to non-Service partners if they meet certain conditions.

Items 21 and 22 repeals and substitutes table items 3 and 7 of subsection 6.5.85.1 of the Principal Determination which provide locations a member’s dependant is eligible for a removal to when the member dies. The table items are redrafted to remove 4 references to the Commonwealth which are not required to aid the readers understanding of the provision and to promote contemporary drafting styles.

Items 23, 25, 26, 29 and 34 make amendments to the Principal Determination to remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision.

Item 24 repeals and substitutes subsection 6.5.86.2 of the Principal Determination which sets out when a deceased member is eligible for the removal and storage of furniture and effects. The subsection is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision. The section also adds subsection 6.5.86.3 which inserts text previously provided by subsection 6.5.86.2.

Items 27 and 28 amend subsection 7.3.15.1 of the Principal Determination which provides when a member must repay a HPAS payment. Item 27 repeals the note in paragraph 7.3.15.1.b which provides that if Service reasons prevent an eligible person from occupying a home under paragraph 7.3.15.1.b, the member does not have to repay the amount. Item 28 adds subsection 7.3.15.1A which inserts the text previously provided by the note in 7.3.15.1.b.

Item 30 repeals subsection 7.3.28.1 of the Principal Determination which provides that an eligible person cannot reasonably be expected to purchase a home in some specific locations in Australia due to their remoteness and the quality of housing available. The subsection is non-legislative and administrative in nature and is removed.

Item 31 repeals the note in subsection 7.6.35.1 of the Principal Determination which provides a member whose change in service residence is approved under subsection 7.6.35.1 is eligible for a removal. The item also adds subsection 7.6.35.1A which inserts the text previously provided by the note in 7.6.35.1.

Item 32 repeals subsection 7.6.36.2 of the Principal Determination which provides that a member is not eligible for removal if they get a pet while living in a Service residence where it is not allowed. The subsection is non-legislative and administrative in nature and is removed.

Item 33 repeals subsection 7.6.40.1 of the Principal Determination which provides an overview of what a contribution is under Chapter 7 Part 6 Division 8. The subsection is non-legislative and administrative in nature and is removed.

Items 35 and 36 amend section 7.9.11 of the Principal Determination which provides when a member is not eligible for food allowance. Item 35 repeals and substitutes paragraph 7.9.11.1.a which provides that a member is not eligible for food allowance on a day that they are provided 3 meals by the Commonwealth. The paragraph is redrafted to remove the reference to the Commonwealth which is not required to aid the reader’s understanding of the provision and to include the text previously provided by subsection 7.9.11.2, which is removed by item 36 of this Determination.

Item 37 repeals and substitutes subsection 7.10.10.4 of the Principal Determination which sets out how a member who has received a refund for a utility connection deposit under subsection 7.10.10.1 must repay it. The subsection is redrafted to remove 3 references to the Commonwealth which are not required to aid the readers understanding of the provision and to clarify when the member must repay utility connection deposits that they have been refunded.

Item 38 repeals and substitutes section 7.10.13 of the Principal Determination which provides that a member must repay any part of an advance that is not used for its intended purpose or has not been paid or lodged. The section is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to improve the clarity of the requirement that member’s must repay advances that are not used for their intended purpose or that were not paid or lodged.

Schedule 5—Clothing allowances amendments

Item 1 amends paragraph 10.3.2.1.c of the Principal Determination which provides a list of members who are eligible for a clothing benefit for representational purposes, if approved by the Chief of Defence Force. The amendment clarifies that a member eligible under this paragraph must be posted in Australia.

Item 2 repeals subparagraph 10.3.2.1.c.iii of the Principal Determination which provides that a member who is posted to the CDF Signals Detachment is eligible for a clothing benefit for representational purposes, if approved by the Chief of Defence Force. Clothing allowance is now provided to these members under Chapter 10 Part 5 of the Principal Determination as a consequence of the changes made by items 6 and 7 of this Schedule.

Item 3 repeals and substitutes section 10.3.3 of the Principal Determination which provides an eligible member with the reimbursement of costs for the purchase or hire of clothing for representational duties. The substituted section has been redrafted to promote contemporary drafting standards.

Items 4 and 5 amend the heading of Part 5 of Chapter 10 and section 10.5.1 of the Principal Determination to rename Service police investigator plain clothes allowance to Plain clothing allowance and to specify that the allowance is also payable to member of the CDF Signals Detachment. The amendments clarify that the function of the benefit is to provide plain clothing for eligible members, and is not limited to Service police investigators.

Item 6 and 7 repeal and substitute section 10.5.2 and 10.5.3 of the Principal Determination which provides Service police investigator plain clothes allowance. The substituted sections do the following.

• Updates the name of the benefit to plain clothing allowance to be consistent with amendments made by items 3 and 4 of the Schedule.
• Updates the name of the Australian Defence Force Investigative Service to Joint Military Police Unit.
• Provides that a member posted to the CDF Signals detachment is eligible for the benefit if approved by the Chief of Defence Force. This was previously provided to these members under section 10.3.2 of the Principal Determination.
• Removes content which is not legislative in nature and does not need to be determined.

Schedule 6—Disturbance allowance amendments

Item 1 repeals and substitutes subsection 6.1.6.2 of the Principal Determination. The subsection provides rates for disturbance allowance to compensate members for incidental relocation costs. The rates have been adjusted to reflect a 3.0% movement in the All Groups component of the Consumer Price Index for the period September 2020 to September 2021.

Item 2 amends subsection 6.1.12.1 of the Principal Determination. The subsection provides a payment for a member whose child has to change schools due to an ADF removal. This rate has been increased by both of the following.

• A 1.1% movement in the All Groups component of the Consumer Price Index for the period September 2019 to September 2020 which was not implemented in 2021.
• A 3.0% movement in the All Groups component of the Consumer Price Index for the period September 2020 to September 2021.

Annex B

 Defence Determination, Conditions of service Amendment Determination 2022 (No. 8)

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:

• Amend the definition of short-term duty overseas to provide that the CDF may extend the short-term duty period.
• Change the name of Service police investigator plain clothes allowance to plain clothing allowance, and provide a member posted to the CDF Signals Detachment a benefit to cover additional clothing costs.
•  Make miscellaneous amendments to:

• Remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision. A number of sections have been redrafted as a consequence of these amendments to bring them into line with contemporary drafting standards and to remove information that is non-legislative in nature.
• Remove non-legislative information in relation to members who have adult dependants who are also members and both may be eligible to receive the benefit. Legislative notes have also been added throughout the Principal Determination to alert the reader that a benefit may be affected in these circumstances.
• Make technical amendments that promote the use of the correct terminology and bring a number of definitions into line with contemporary drafting standards.
• Update position titles and amending the language relating to the use of approved forms.

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

Schedule 1: Items 13, 14, 23 and 29 are compatible with human rights as they allow for the extension of the period of short-term duty overseas to allow members who undertake short-term duty to continue to receive the benefits they are eligible for on short-term duty, including allowances, accommodation and return flights, for that additional period as a part of their conditions of service.

The remaining items in Schedule 1 of this Determination make technical amendments to the Principal Determination and do not alter the underlying policies, or the benefits which are currently provided and therefore do not engage any of the applicable rights or freedoms

Schedules 2, 3 and 4 of this Determination make technical amendments to the Principal Determination which do not change underlying policies or benefits. As such, they do not engage any of the applicable rights or freedoms.

Schedule 5 is compatible with human rights as it promotes the right to enjoyment of just and favourable conditions of work by reimbursing members for expenses incurred for clothes that would not normally be required when performing the duties of their role.

Schedule 6: Defence members are regularly posted to perform duty in different locations. This could cause the member and their family economic hardship during the move to the posting location. This Schedule is compatible with human rights as it adjusts disturbance allowance in recognition of the disturbance moving household has on a member and their families.

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.