Defence Determination, Conditions of service Amendment Determination 2022 (No. 9)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2022 (No. 9)

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:
  1. Promote the use of the correct terminology and to provide consistency in how phrases are written, and make technical amendments to renumber provisions so they are in sequential order. The Schedule also removes information which is non-legislative or administrative in nature to bring a number of provisions within the Principal Determination into line with contemporary drafting standards.
  • Extend the period of time excess baggage benefits apply to members and their families as a consequence of the ongoing COVID-19 pandemic and the effects it has on the movement of baggage to and from overseas posting locations.

Technical amendments are routine in nature, and do not alter the underlying policy. These amendments will not change the benefits which are currently provided.

• Amend the trainee dependant’s allowance provisions to:
  • Adjust the maximum income that a trainee's dependant may earn before the trainee is ineligible to be paid the trainee's dependant allowance.
  • Make it clear that, if a trainee has more than one eligible dependant, the trainee’s dependant allowance is not payable if the income of any eligible dependent exceeds the updated maximum.
  • Require an application for the trainee's dependant allowance to be made using the approved form.
• Amend paid parental leave provisions to:
  • Ensure an equitable outcome when is taken at half pay and in situations where dual serving parents are leave at the same time.
  • Extend paid parental leave benefits to members when a child joins their household in anticipation of being adopted by the member or in anticipation of being placed in the member’s or their partner’s care under a care order issued by a court or statutory authority.
• Amend the vehicle allowance formula and table to reflect contemporary drafting standards, and the rates to reflect the increases as advised by the recognised data provider.

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 following consultation was undertaken:

• Schedule 1: Navy, Army and Air Force were consulted in the development of item 9 of this Schedule. Consultation was not considered necessary for the other amendments as the changes are technical in nature and do not amend the provision of benefits.
• Schedule 2: The rule maker was satisfied that the changes made by this Schedule are technical in nature and consultation was not required.
• Schedule 3: Navy, Army and Air Force were consulted in the development of this Schedule.
• Schedule 4: Consultation is not considered necessary in the allowance adjustment process as it falls within the bounds of routine housekeeping of an established benefit. The adjustments are made from data from a recognised data provider and 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. 9)

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 Determination is registered. 
• Schedules 1 to 3 of this Determination commence on 9 June 2022.
• Schedule 4 of this Determination commences on 4 August 2022.

Section 3 provides that this Determination has authority under section 58B of the Defence Act.

Section 4 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination 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.

Item 1 repeals the second occurring paragraph 3.5.66.2B.b of the Principal Determination which provides one of the conditions current capability shortage to be considered critical under paragraph 3.5.66.2.b. The paragraph is a duplicate of the first occurring paragraph 3.5.66.2B.b and is removed.

Items 2 and 3 amend section 5.11.5 of the Principal Determination which provides what a decision maker must consider before approving an absence. Subparagraphs 5.11.5.1.a.i and 5.11.5.1.a.ii are repealed to remove information which was previously contained within a legislative note. The information is administrative in nature and does not need to be determined.

Item 4 amends paragraph 6.5.16.3.b of the Principal Determination which provides that the cost of vehicle allowance for a member the use of a private vehicle to travel from their old to their new residences may be reimbursed under certain conditions. The paragraph is amended to change the reference to ‘Chapter 9 Part 6 Division 3’ to ‘Chapter 9 Part 5 Division 4’ which has changed as a consequence of amendments made by Defence Determination, Conditions of service Amendment (Motor vehicle removals) Determination 2022 (No. 3).

Items 5 to 7 amend various provisions of the Principal Determination to renumber provisions in sequential order.

Item 8 amends paragraph 12.3.9.1.c of the Principal Determination which provides that a long-term posting overseas includes a period of short-term duty that the CDF extends beyond 6 months. The paragraph is amended to change ‘other than a. under’ to ‘other than an extension under’ to correct a typographical error.

Item 9 amends paragraph 14.4.11.2A.b of the Principal Determination which provides that one of the conditions of receiving increased excess baggage is that the travel occurs between 1 December 2021 and 30 June 2022. The paragraph is amended to change the reference to ’30 June’ to ’30 September’ to extend the benefit. This is due to the ongoing supply chain issues and prolonged delivery times of overseas consignments.

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

Schedule 2—Trainee’s dependant allowance

Item 1 amends paragraph 4.8.6.1.a of the Principal Determination, which provides that a member is not eligible for trainee’s dependant allowance if the trainee’s eligible dependant has an income of $34,980.40 or more. The paragraph has been amended to update the threshold to $40,175.20, which is the national minimum wage set out in the National Minimum Wage Order 2021. The amended paragraph also makes it clear that, if a trainee has more than one eligible dependant, a trainee’s dependant allowance is not payable to the trainee if the expected income of any eligible dependent exceeds the revised maximum in the current financial year.

Item 2 inserts section 4.8.6A into the Principal Determination, which requires a member to use the approved form to apply for the trainee’s dependant allowance and to inform of any change in the eligible dependant’s expected income.

Schedule 3—Paid parental leave

Item 1 repeals and substitutes section 5.7.4C of the Principal Determination which provides that a dual serving couple is not eligible for more than a combined total of 18 weeks of paid maternity leave, paid parental leave, and special paid parental leave. The section has been amended to provide that the 18 week combined limit is increased by one day for every day subsection 5.7.6C.2 applies or the leave is taken at half pay.

Item 2 repeals and substitutes paragraph 5.7.4E.b of the Principal Determination which provides that Division 2: Paid parental leave applies to a member in the first 66 weeks after they adopt a child. The subsection is amended to provide that it also applies when a child joins a member’s household in anticipation of being adopted by the member.

Item 3 repeals and substitutes paragraph 5.7.4E.c of the Principal Determination which provides that Division 2: Paid parental leave applies to a member in the first 66 weeks after a child is placed in their, or their partner’s care under a permanent care order issued by a court or statutory authority. The subsection is amended to provide that it also applies when a child joins a member’s household in anticipation of being placed in the member’s or their partner’s care under a permanent care order issued by a court or statutory authority.

Item 4 repeals and substitutes section 5.7.6E of the Principal Determination which provides conditions that apply to the grant of special paid parental leave. The section has been amended to:

• Apply the current conditions which apply to the grant of special paid parental leave to members who have a child join their household in anticipation of being adopted by the member or in anticipation of being placed in the member’s or their partner’s care under a care order issued by a court or statutory authority.
• Ensure the requirement to take special paid parental leave within 14 weeks of a specified event is adjusted when a member takes special paid parental leave at half pay.

Schedule 4—Vehicle allowance amendments

Item 1 repeals and substitutes subsection 9.6.25.1 of the Principal Determination which sets out the rates and formula used to calculate the amount of vehicle allowance payable to a member. The formula is amended to provide clarity to the reader, the rates per kilometre in column C of the table are increased to reflect the annual increase as advised by the data service provider, and the table redrafted to reflect contemporary drafting standards

Annex B

 Defence Determination, Conditions of service Amendment Determination 2022 (No. 9)

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:

b.              Promote the use of the correct terminology and to provide consistency in how phrases are written, and make technical amendments to renumber provisions so they are in sequential order. The Schedule also removes information which is non-legislative or administrative in nature to bring a number of provisions within the Principal Determination into line with contemporary drafting standards.

• Extend the period of time excess baggage benefits apply to members and their families as a consequence of the ongoing COVID-19 pandemic and the effects it has on the movement of baggage to and from overseas posting locations.

Technical amendments are routine in nature, and do not alter the underlying policy. These amendments will not change the benefits which are currently provided.

• Amend the trainee dependant’s allowance provisions to:
  • Adjust the maximum income that a trainee's dependant may earn before the trainee is ineligible to be paid the trainee's dependant allowance.
  • Make it clear that, if a trainee has more than one eligible dependant, the trainee’s dependant allowance is not payable if the income of any eligible dependent exceeds the updated maximum.
  • Require an application for the trainee's dependant allowance to be made using the approved form.
• Amend paid parental leave provisions to:
  • Ensure an equitable outcome when is taken at half pay and in situations where dual serving parents are leave at the same time.
  • Extend paid parental leave benefits to members when a child joins their household in anticipation of being adopted by the member or in anticipation of being placed in the member’s or their partner’s care under a care order issued by a court or statutory authority.
• Amend the vehicle allowance formula and table to reflect contemporary drafting standards, and the rates to reflect the increases as advised by the recognised data provider.

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.

The protection of a person's right to care for dependants

The protection of a person's right to care for dependants engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance to families, including their responsibility for the education and care of dependent children.

Assessment of compatibility

Schedule 1: Items 1 to 8 make technical amendments to the Principal Determination and do not engage any human rights issues.

Item 9 is compatible with human rights in that it extends the time additional overseas excess baggage benefits apply 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.

Schedule 2 is compatible with human rights as it provides for a trainee's salary to be supplemented when the trainee is supporting one or more eligible dependants.

The Schedule changes the eligibility requirements for a trainee to be paid trainee's dependant allowance by updating the maximum income that a dependant of a trainee may earn before the member ceases to be eligible for the allowance. The rate is increased in line with the current national minimum wage. Schedule 1 also makes it clear that, if a trainee has more than one eligible dependant, the trainee’s dependant allowance is not payable if the expected income of any eligible dependent exceeds the updated maximum in the current financial year.

Schedule 3 is compatible with human rights as it provides paid parental leave benefits to members when a child joins their household in anticipation of being adopted by the member or in anticipation of being placed in the member’s or their partner’s care under a care order issued by a court or statutory authority and also ensures an equitable outcome for member who take leave at half pay.

Schedule 4 advances human right of just and favourable working conditions by ensuring that the rate of vehicle allowance is increased in line with changes to the consumer price index.

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.