Defence Determination, Conditions of service Amendment Determination 2023 (No. 12)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment  Determination 2023 (No. 12)

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:

• Amend provisions relating to long service leave to provide payment in lieu of long service leave when a member dies while on continuous full-time service.
• Amend provisions relating to the relocation of a member’s resident family and recognised other persons to and from a family benefit location.
• To provide the rent ceiling for a member occupying rental accommodation when their housing benefit location is extended or they have been approved an alternate located work agreement or transition location agreement.
• To make technical amendments that do not change the benefits which are currently provided.

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 consultation was undertaken with Navy, Army, Air Force and Defence Relocation and Housing.

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

Annex A

Defence Determination, Conditions of service Amendment Determination 2023 (No. 12)

Operational details

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

Section 2 provides that this Determination commences on 12 October 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—Miscellaneous amendments

Items 1 to 3 amend Annex 3.6.A of the Principal Determination which provides the deliberately differentiated offer form. The form has been amended to include the Chief of the Defence Force as a position that can make a deliberately differentiated offer and to update cross references.

Item 4 inserts section 5.5.24A into the Principal Determination which provides that a reference to “payment under this Division” is a reference to payment instead of long service leave throughout Division 5 of Part 5 of Chapter 5. The inclusion of this section aims to improve readability and promote the use of contemporary drafting styles.

Item 5 repeals and substitutes section 5.2.25 of the Principal Determination which provides the situations when a member, including a former member, is eligible for payment in lieu of long service leave. A new provision has been inserted which provides that a member who dies while on continuous full‑time service is eligible for a payment of their long service leave credits This payment will be made to either the member’s recognised family or the member’s legal personal representative. The section has been restructured to improve readability and promote the use of contemporary drafting styles.

Item 6 amends paragraph 6.5.6.a of the Principal Determination which provides that when a member’s partner is resident family and also a member they are only eligible for one removal when they have the same housing benefit location. The paragraph has been amended to provide clarity for readers.

Item 7 amends the table in subsection 6.5.22.2 of the Principal Determination which provides removal benefits for a member’s resident family to a member’s housing benefit location. The table is amended to include recognised other persons and to ensure consistent language throughout the Division.

Items 8 and 9 amend section 6.5.27 of the Principal Determination which provides removal benefits on the posting of a member who has unaccompanied resident family and no accompanied resident family. The section has been amended as follows.

• Item 8 repeals and substitutes paragraph 6.5.27.1.b to provide clarity that only unaccompanied resident family residing in a family benefit location under section 1.3.12 are eligible for removal.
• Item 9 repeals and substitutes subsection 6.5.27.4 to amend the formula to ensure the member’s contribution is calculated accurately. A legislative note has been included to provide clarity that a member is not paid an amount if the calculation’s outcome is less than $0.

Item 10 amends subsection 7.4.8.1 of the Principal Determination which provides that a member may be required by the CDF to live in for one of the reasons listed. The subsection has been amended to incorporate the exception provided in subsection 7.4.8.2 to promote contemporary drafting styles and improve readability.

Items 11 to 13 amend sections 7.6.45, 7.7.14 and 7.7.22 of the Principal Determination to update cross references.

Items 14 to 17 amend section 7.8.9 of the Principal Determination which provides the rent ceiling for a member who is occupying rental accommodation with their accompanied resident family, or their unaccompanied resident family is occupying rental accommodation in their family benefit location. The section has been amended as follows.

• Item 14 amends paragraph 7.8.9.1.a to provide clarity that it applies to a member occupying rental accommodation in their housing benefit location with their accompanied resident family.
• Item 15 amends paragraph 7.8.9.1.b to provide clarify that it applies to a member whose unaccompanied resident family are occupying rental accommodation in their family benefit location.
• Item 16 repeals subsection 7.8.9.3A which provides the definition of location for the purpose of setting a member’s rent ceiling. The subsection has been repealed as the information is now provided by subsection 7.8.9.6.
• Item 17 adds subsection 7.8.9.6 into the Principal Determination which provides the definition of “location” for the purposes of section 7.8.9. The definition, which was previously provided by subsection 7.8.9.3A, has been amended to provide for circumstances where a member has had their housing benefit location extended under section 1.3.11 or they have been approved an alternate located work agreement or transition location agreement.

Item 18 amends section 7.8.10 of the Principal Determination which provides the rent ceiling for a member living in rental accommodation with no resident family or recognised other persons. Subsection 7.8.10.3 has been amended to provide a definition of “location” for the purpose of the section. The definition provides for circumstances where a member has had their housing benefit location extended under section 1.3.11 or they have been approved an alternate located work agreement or transition location agreement.

Item 19 repeals and substitutes section 7.8.47 of the Principal Determination which provides that a member is eligible to be reimbursed rent which has been paid in advance of moving in when a member rents a home. The section has been amended to remove the exception in subsection 7.8.47.2 and to improve readability.

Items 20 and 21 amend annex 7.D of the Principal Determination which provides the contribution a member must make when in receipt of rent allowance. The table headings in Part 1 and 2 of the annex have been amended to provide the number of bedrooms, or the number people the member is sharing with to promote contemporary drafting styles and improve readability.

Item 22 amends subsection 8.4.22.6 of Principal Determination which provides that a member cannot be reimbursed boarding costs during school holidays, or while the member or an adult who is resident family of the member lives within the student's location, unless the CDF is satisfied that it is reasonable in the circumstances. The item removes the exception and incorporates it into the subsection to promote the use of contemporary drafting styles and improve readability.

Item 23 repeals and substitutes section 9.5.5 of the Principal Determination which provides members who are not eligible for travel costs under Part 5 of Chapter 9. The section has been redrafted to promote contemporary drafting styles and remove information which is non-legislative and administrative in nature. 

Item 24 amends section 15.6.26 of the Principal Determination which provides that a member who has a child attending pre-school, primary or secondary school in Australia is eligible for the costs of compulsory school fees for the child. The section has been amended to substitute the term “school fees” with “tuition fees” to provide clarity to the reader.

Item 25 provides the list of provisions which require amendment as a consequence of item 4 of this Schedule. The provisions have been amended to substitute the term “payment instead of long service leave” with “payment under this Division” to improve readability.

Item 26 amends various provisions within Chapter 7 of the Principal Determination to remove exceptions to promote the use of contemporary drafting styles and improve readability.

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

Schedule 2—Transitional provision

Clause 1 provides the definition of Defence Determination for the purpose of the Schedule.

Clause 2 provides that if a member has either had their housing benefit location extended or been approved an alternate location work or transition location agreement which changes their primary service location between 1 July and the commencement of this Determination, the member’s rent ceiling is the rent ceiling that would have applied had the changes made by items 14 to 18 of Schedule 1 applied at the time.

Annex B

Defence Determination, Conditions of service Amendment  Determination 2023 (No. 12)

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 provisions relating to long service leave to provide the payment in lieu of long service leave when a member dies while on continuous full-time service.
• Amend provisions relating to the relocation of a member’s resident family and recognised other persons to and from a family benefit location.
• To provide the rent ceiling for a member occupying rental accommodation when their housing benefit location is extended or they have been approved an alternate located work agreement or transition location agreement.
• To make technical amendments that do not change the benefits which are currently provided.

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

This Determination is compatible with the principles of human rights as it recognises a right to remuneration in respect of accrued long service leave in the event of a member’s death while on continuous full‑time service. It also provides the rent ceiling for a member occupying rental accommodation when their housing benefit location is extended or they have been approved an alternate located work agreement or transition location agreement.

This Determination also makes amendments to the Principal Determination which do not change the underlying policies or benefits. As such, these amendments do not engage with any of the applicable rights or freedoms.

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.