Defence Determination, Conditions of service Amendment Determination 2023 (No. 13)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2023 (No. 13)

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 the provisions in relation to executive vehicle allowance provided to a member who is a senior officer in either the Reserves or the Permanent Forces. The amendments made by Schedule 1 are as a consequence of DFRT Determination No. 5 of 2023, which incorporates executive vehicle allowance into salary payable to a senior officer.
• Provide benefits to members who are on peacetime deployment overseas.
• Amend the definition of meaningful engagement for the purpose of career transition training to provide clarity, as well as specifying what activities it includes.

• Amend the definition of primary service location to clarify which location is the primary service location for a member on reserve service.
• Amend provisions relating to the relocation of a member’s resident family to or from a family benefit location to include recognised other persons.

• Amend special needs provisions to allow removal assistance to be extended to members who have recognised other persons with special needs.
• Amend reunion travel provisions as follows:
  • To allow members who are on temporary duty to travel from the location they are performing duty.
  • To provide clarity that only one member of a dual serving couple is eligible for reunion travel credits with respect to a person who they both have recognised as non-resident family.
• Amend recreation leave travel provisions as follows:
  • To allow members who are on temporary duty to travel from and to the location they are performing duty.
  • To allow members who take their recreation leave travel in connection with a removal to take their return travel to their new housing benefit location.
• Include approved summer schools for members posted to Canada.
• Add approved summer schools for members posted to Tokyo, Japan and Madrid, Spain.
• Make technical amendments that update cross reference, promote the use of contemporary drafting styles and improve readability. These amendments do not alter the underlying policies, or the benefits that 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 the Australian Public Service Commission through the Commonwealth Advocate and the Directorate of Senior Officer Management, Headquarters of Joint Operations Command, People Systems and Payroll Services Branch, Navy, Army, Air Force, Defence Finance Group, Australian Signals Directorate, Australian Submarine Agency and the Directorate of Attaché and Overseas Management.

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

Annex A

Defence Determination, Conditions of service Amendment Determination 2023 (No. 13)

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 9 November 2023

Section 3 provides that this Determiantion 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—Executive vehicle allowance amendments

Items 1 and 3 to 5 respectively amend sections 4.6.2, 5.4.42, 5.5.26 and 9.6.6 of the Principal Determination as a consequence of the changes made by item 2 of this Schedule. The amendments are as follows:

• Item 1 omits the reference to section “4.6.6” in subsection 4.6.2.2.
• Item 3 repeals paragraph b of the definition of “Annual allowance” in section 5.4.42.
• Item 4 repeals and substitutes paragraph 5.5.26.4.b to:

• Omit the reference to “executive vehicle allowance” in the Exception;
• Omit “uniform allowance” which no longer applies to any members; and
• Incorporate the Exception into paragraph b to promote the use of contemporary drafting styles.

Item 2 repeals section 4.6.6 of the Principal Determination, which provides executive vehicle allowance to a member who holds the rank of Brigadier or higher. The section has been repealed as a consequence of the amendments made by DFRT Determination No. 5 of 2023. Executive vehicle allowance will now form part of the salary payable to a member who is a senior officer in either the Reserves or the Permanent Forces.

Schedule 2—Peacetime deployments amendments

Items 1 to 4 amend section 1.3.1 of the Principal Determination, which provides defined terms used throughout the determination. The items make the following changes.

• Item 1 amends the definition of deployment to provide that the term includes service on a peacetime deployment overseas.
• Items 2 and 3 amend the definition of operational area. Item 3 amends paragraph a to provide that the paragraph applies to warlike or non-warlike deployments. Item 4 provides that the term includes the specified area of a peacetime deployment that has been approved by the Chief of the Defence Force.
• Item 4 inserts a new definition of peacetime deployment to provide that it is not warlike or non-warlike and it has been approved by the Chief of the Defence Force as a peacetime deployment.

Item 5 amends section 5.11.26 of the Principal Determination, which provides the purpose of pre-deployment leave. The section has been amended to provide that the leave is for a member going on a deployment instead of duty in a prescribed area overseas. This change will enable members going on a peacetime deployment to access the leave.

Items 6, 8 and 9 amend the tables in sections 7.4.33, 7.6.42 and 7.8.18 of the Principal Determination, which provide when members are exempt from making contributions towards their housing. Table item 4 of each table has been amended to clarify that a member on warlike or non-warlike deployment is exempt from contributing to their housing during the period of their warlike or non-warlike deployment.

Item 7 amends the table in section 7.5.17 of the Principal Determination, which provides the period of eligibility for the payment of temporary accommodation allowance. Table item 6 column A has been amended to clarify that a member going deployment is eligible for temporary accommodation allowance when the deployment is for a period of 6 months or longer.

Item 10 repeals and substitutes section 9.4.20 of the Principal Determination, which provides the purpose of post-deployment leave travel. The section has been amended to provide that the leave travel is for a member returning from a deployment instead of returning from service in a prescribed area. This change will enable members returning from a peacetime deployment to access the leave travel.

Item 11 repeals and substitutes section 12.5.2 of the Principal Determination, which provides the persons who are eligible for benefits if they are required to isolate when undertaking international travel. This section has been amended to provide that Chapter 12 Part 5 applies to members to are on deployment.

Item 12 amends the heading of Chapter 13 of the Principal Determination. Chapter 13 provides benefits for members who are on short-term duty overseas. The heading has been amended to provide that the Chapter also applies to members on peacetime deployment.

Item 13 repeals and substitutes section 13.1.2 of the Principal Determination, which provides the members who are eligible for benefits under Chapter 13. The section has been amended to provide that the Chapter applies to a member on peacetime deployment and also a member who performs short-term duty while on a warlike or non-warlike deployment.

Item 14 amends section 13.2.4 of the Principal Determination, which provides the members who are not eligible for the class of travel provisions under Chapter 13 Part 2 Division 1. Paragraph a has been amended to remove reference to “deployment” and substitute it with “warlike or non-warlike deployment”. This change will allow the class of travel provisions to apply to members who are on a peacetime deployment.

Item 15 amends section 13.2.5B of the Principal Determination, which provides the class of air travel for members travelling on a peacetime operation, exercise or activity. The section has been amended to change “peacetime operation” with “peacetime deployment” to reflect the change in terminology made by item 2 of this Determination.

Items 16, 17, 18 and 21 insert 4 new sections into the Principal Determination. These new sections provide that the following short-term duty benefits do not apply to a member on a peacetime operation: rest periods, accompanied travel, equipment costs and officially approved activities.

Item 19 amends the heading of Part 4 of Chapter 13 of the Principal Determination to remove “ADF only”. This information is non-legislative in nature and is not required.

Item 20 repeals and substitutes section 13.4.4 of the Principal Determination which provides the members who are not eligible for benefits when on a Defence co-operation program or project. The section has been amended to include members on peacetime deployment as not being eligible for benefits under the Division.

Item 22 amends the heading of Chapter 17 of the Principal Determination to substitute “Deployments” with “Warlike or non-warlike deployments”. This change reflects the types of deployments that the Chapter applies to. Chapter 17 does not apply to peacetime deployments.

Item 23 repeals and substitutes section 17.1.1 of the Principal Determination, which specifies the purpose of Chapter 17. This section has been amended to provide that the Chapter provides conditions of service to members on warlike and non-warlike deployments.

Item 24 repeals and substitutes section 17.1.4 of the Principal Determination, which provides the members who are not eligible for benefits provided under Chapter 17. The section has been amended to substitute “peacetime service” with “peacetime deployment” to reflect the change in terminology made by item 2 of this Determination. A member with a diplomatic status has been included as not eligible for benefits under Chapter 17, as these members are currently excluded from benefits under section 17.2.2 which has been repealed by section 25 of this Determination.

Item 25 repeals section 17.2.2 of the Principal Determination, which provides the members who are not eligible for conditions of service benefits provided under Part 2 of Chapter 17. This section is no longer required as these members have been included in section 17.1.4 as amended by item 24 of this Determination.

Items 26 and 27 amend section 17.7.5 of the Principal Determination, which provides the members who are eligible for deployment allowance. The section has been amended to substitute “deployment” with “warlike or non-warlike deployment”. These changes clarify that members who are force assigned to a warlike or non-warlike deployment are eligible for the payment of deployment allowance.

Item 28 amends a number of provisions in Chapter 13 of the Principal Determination which provide benefits to members on short-term duty overseas. The provisions are amended to include “peacetime deployment”. These changes enable a member on a peacetime deployment to be eligible for the same benefits as a member on short-term duty overseas.

Schedule 3—Routine rate amendments

Item 1 amends section 4.10.4 of the Principal Determination, which provides the amount of reimbursement a member can get for the additional risk premium of a life insurance policy. The amendment to subsection 4.10.4.1A increases the maximum amount reimbursable from $2,715 to $2,758, a 4% increase in line with the ADF’s Workplace Remuneration Agreement.

Items 2 amend section 16.8.3 of the Principal Determination, which provides the allowances for a member on a long-term posting overseas as an attaché in specific locations. Subsection 16.8.3.2 has been amended to increase the rate of special location allowance in line with the ADF’s Workplace Remuneration Agreement.

Item 3 amends section 17.7.6 of the Principal Determination, which provides the rates of deployment allowance in specified locations. The amendment to the table in subsection 17.7.6.1 increases the daily rate of allowance in Column C by 4% in line with the ADF’s Workplace Remuneration Agreement.

Schedule 4—Miscellaneous amendments

Item 1 amends section 1.3.9 of the Principal Determination, which provides the definition of primary service location to clarify which location is the primary service location for a member on reserve service.

Item 2 repeals and substitutes the definition of meaningful engagement in section 2.2.2 of the Principal Determination. The definition has been amended to clarify the meaning of meaningful engagement and what activities it includes.

Items 3, 12 to 20, 40, 41 and 45 amend various provisions in the Principal Determination to make technical amendments that update cross references, promote the use of contemporary drafting styles to improve readability.

Item 4 amends the heading to Division 3 of Part 5 to Chapter 6 of the Principal Determination, which has been amended to reflect accurately the contents of the Division.

Item 5 repeals and substitutes section 6.5.18 of the Principal Determination, which specifies the purpose for Division 3 of Part 5 to Chapter 6. The section is amended to reflect more accurately the purpose of the Division.

Items 6 and 7 amend section 6.5.19 of the Principal Determination, which provides a compassionate removal of a member’s resident family to a family benefit location. The section has been amended as follows:

• Item 6 amends subsection 6.5.19.1 to include recognised other persons in a compassionate removal to a family benefit location. This amendment ensures that recognised other persons are able to be removed alongside resident family.
• Item 7 amends paragraph 6.5.19.2.b to specify the recognised other persons considered in the nature of the care or assistance that the person requires for a compassionate removal. The amendment excludes live-in carers and guardians or housekeepers, who must be fit to fulfil their duties.

Items 8 and 9 amend section 6.5.19A of the Principal Determination, which provides a removal to a family benefit location for employment or study. The section has been amended as follows:

• Item 8 amends subsection 6.5.19A.1 to include recognised other persons in the removal to a family benefit location for the purposes of employment or study. This amendment ensures that recognised other people are able to be removed alongside resident family.
• Item 9 amends paragraph 6.5.19A.1.d to clarify that to be eligible for a removal under the section the family benefit location is to be closer to the members housing benefit location than the former housing benefit location or the former family benefit location. 

Item 10 amends subsection 6.5.20.1 of the Principal Determination, which provides a removal to a family benefit location instead of a housing benefit location in a remote location. The subsection is amended to include recognised other persons in the removal. This amendment ensures that recognised other people are able to be removed alongside resident family.

Item 11 amends subsection 6.5.21.1 of the Principal Determination, which provides a removal to family benefit location when a member is posted to a seagoing ship, submarine or flight. The subsection has been amended to clarify that the removal is from a member’s housing benefit location to a family benefit location.

Items 21 to 35 amend various provisions within Part 6 of Chapter 8 of the Principal Determination, which provides removal assistance to members who have resident family with special needs. The Part has been amended to extend removal assistance benefits to members who have recognised other persons with special needs and update cross references.

Item 36 and 37 amends section 9.3.33 of the Principal Determination, which defines a reunion travel benefit. Subsection 9.3.33.2, which provides where reunion travel is from and to, has been amended to allow members to travel from their duty location when undertaking temporary duty in a location that is not their primary service location. The subsection has also been amended to make clear that travel that is not booked by Defence is to and from the same locations that apply to travel that is booked by Defence.

Item 38 amends section 9.3.33J of the Principal Determination, which provides the number of reunion travel credits a member, is eligible for when they have non-resident family. Subsection 9.3.33J.3 has been added to clarify that when a member is part of a dual service couple only one member of the dual serving couple is eligible for reunion travel credits with respect to a person who is their non-resident family.

Item 39 repeals and substitutes section 9.4.7 of the Principal Determination, which provides the costs that recreation leave travel is limited to, and where recreation leave travel is from and to. The section has been amended to provide that a member who uses their recreation leave travel on posting can take their return travel to either the location they took the travel from, or to their new housing benefit location. The section has also been redrafted to improve readability.

Items 42 to 44 amend the table in Annex 15.6.B of the Principal Determination, which lists approved summer schools for overseas posting locations.

Items 46 and 47 amend section 16.8.3 of the Principal Determination, which provides the allowances for a member on a long-term posting overseas as an attaché in specific locations. The section has been amended as follows:

• Item 46 amends subsection 16.8.3.1 of the Principal Determination to remove reference to Defence Attaché Kabul as a result of the position no longer being an active position.
• Item 47 amends subsection 16.8.3.3 of the Principal Determination which provides the meaning of special location allowance for the purpose of the Military Rehabilitation and Compensation (Pay-related Allowances) Determination 2017. The section has been redrafted to remove reference to Defence Attaché Kabul as a result of the position no longer being an active position.

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

Schedule 5—Transitional Provisions

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

Clause 2 provides a transitional provision for a member who was posted to Canada or Madrid, Spain between 1 June 2023 and the commencement of this Determination if they had a child who attended one of the new approved summer schools at the posting location. The member is eligible for the reimbursement of the amount they would have been eligible for under section 15.6.15 of the Defence Determination had items 42 and 44 of Schedule 4 of this Determination been in effect on 1 June 2023.

Clause 3 provides a transitional provision for a member who was posted to Japan between 16 June 2023 and the commencement of this Determination if they had a child who attended one of the new approved summer schools at the posting location. The member is eligible for the reimbursement of the amount they would have been eligible for under section 15.6.15 of the Defence Determination had item 43 of Schedule 4 of this Determination been in effect on 16 June 2023.

Annex B

Defence Determination, Conditions of service Amendment (Subject matter) Determination 2023 (No. XX)

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 provisions in relation to executive vehicle allowance provided to a member who is a senior officer in either the Reserves or the Permanent Forces. The amendments made by Schedule 1 are as a consequence of DFRT Determination No. 5 of 2023, which incorporates executive vehicle allowance into salary payable to a senior officer.
• Provide benefits to members who are on peacetime deployment overseas.
• Amend the definition of meaningful engagement for the purpose of career transition training to provide clarity, as well as specifying what activities it includes.

• Amends the definition of primary service location to clarify which location is the primary service location for a member on reserve service.
• Amend provisions relating to the relocation of a member’s resident family to or from a family benefit location to include recognised other persons.

• Amend special needs provisions to allow removal assistance to be extended to members who have recognised other persons with special needs.
• Amend reunion travel provisions as follows:
  • To allow members who are on temporary duty to travel from the location they are performing duty.
  • To provide clarity that only one member of a dual serving couple is eligible for reunion travel credits with respect to a person who they both have recognised as non-resident family.
• Amend recreation leave travel provisions as follows:
  • To allow members who are on temporary duty to travel from and to the location they are performing duty.
  • To allow members who take their recreation leave travel in connection with a removal to take their return travel to their new housing benefit location.
• Include approved summer schools for members posted to Canada.
• Add approved summer schools for members posted to Tokyo, Japan and Madrid, Spain.
• Make technical amendments that update cross reference, promote the use of contemporary drafting styles and improve readability. These amendments do not alter the underlying policies, or 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 of the child to education

The protection of a child’s right to education engages Article 28 of the Covenant on the Rights of the Child. Article 28 requires States to provide access to different types of education.

Assessment of compatibility

This Determination is compatible with human rights as it improves member’s conditions of service by ensuring that the rate of allowances and specified summers schools for member’s children to attend remain contemporary, and increases flexibility for members in relation to the use of removal benefits and specific types of travel. The amendments also extends specified benefits to members who are on peacetime deployments.

All other changes made by the Determination not change the underlying policies or benefits currently provides, therefore not engaging 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.