Defence Determination, Conditions of service Amendment Determination 2023 (No. 14)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2023 (No. 14)

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 relating to when a member who has received a special benefit payment on transfer to the Reserves is required to repay the payment.
• Provide members with access to education assistance benefits in circumstances where they are experiencing financial hardship.
• Amend ADF district allowance provisions to ensure eligibility to receive the allowance continues during periods of unpaid maternity or parental leave if the member and at least one of their resident family continue to live at the remote location.
• Provide that a person under 21 years of age who has joined the member’s household under a permanent care order issued by a court or statutory authority is a child for the purpose of the Principal Determination.
• Make a number of miscellaneous amendments which promote the use of contemporary drafting styles, update cross references and remove information which is administrative in nature. These amendments do not alter the underlying policies, or 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, consultation was undertaken with Navy, Army and Air Force.

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

Annex A

Defence Determination, Conditions of service Amendment Determination 2023 (No. 14)

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 commences on the day the instrument is registered.
• Schedule 1, 2 and 4 of the Determination commence on 7 December 2023.
• Schedule 3 of the Determination commences on 4 January 2024.

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—Domestic amendments

Items 1 and 2 amend section 1.3.10 of the Principal Determination which provides the definition of housing benefit location. The items make the following changes:

• Item 1 omits reference to “the area comprising of all” and is substituted with “one” to provide clarity on what is considered to be a member’s housing benefit location in various circumstances.
• Item 2 repeals and substitutes paragraph 1.3.10.d to clarify what is considered to be a member’s housing benefit location when a Service residence is provisioned for them in an area that would otherwise not be considered to be a housing benefit location with respect to their primary service location.

Items 3 to 5 amend section 1.3.35 of the Principal Determination which provides the definition of a child. The section has been amended in the following ways.

• Item 3 inserts a subsection number before “A child” due to the insertion of a new subsection 2 by item 5.
• Item 4 adds a new subparagraph 1.a.iii to the definition to allow for children who are joining the member’s household and the decision maker is satisfied the child will placed on a permanent care order. This amendment allows members to receive benefits for children in a period of time before the permanent care order is issued, as these orders may take a considerable time to be issued.
• Item 5 inserts a new subsection 1.3.35.2 to provide the decision makers for the purpose of subparagraph 1.a.iii.

Items 6 to 8 amend the table in section 4.4.12 of the Principal Determination which provides when a member who is on a period of leave continues to be eligible for ADF district allowance. The table has been amended in the following ways:

• Item 6 adds table items 1A and 1B to provide that district allowance remains payable to a member who is on a period of unpaid maternity leave or unpaid parental leave in which the member, or at least one of their resident family, continues to live at the remote location.
• Items 7 and 8 amend table items 3 and 4 by substituting reference to “compassionate” with “personal leave for a compassionate reason” and “absence from duty while ill or in hospital” with “medical absence from duty” to update terminology and promote consistency within the Principal Determination.

Item 9 amends section 6.5.29 of the Principal Determination which provides removal benefits between residences in the same location within Australia. This amendment amends table item 2 of subsection 6.5.29.1 to include living-in accommodation in the types of accommodation a member may be occupying.

Items 10 to 12 amend section 6.5.46 of the Principal Determination which provides removal benefits when members cease continuous full-time service. The items make the following amendments:

• Item 10 amends column A of table item 1 in subsection 6.5.46.4 to remove the cross-reference to table item 1A, which is being repealed by item 10 of this Schedule.
• Item 11 repeals table item 1A of the table in subsection 6.5.46.4.
• Item 12 amends column A of table item 2 of the table in subsection 6.5.46.4 to allow members who have been on a transition location (medical) agreement for more than 12 months to request to be moved before ceasing continuous full-time service.

Item 13 amends section 7.3.2 of the Principal Determination which provides the members that Chapter 7 Part 3 applies to. The amendment repeals and substitutes the section to clarify that a member is required to serve for 12 more months at their primary service location.

Item 14 amends section 7.6.64 of the Principal Determination which provides when a member’s eligibility to a Service residence ends when they are on a seagoing posting and have resident family at a family benefit location. The section is amended to include recognised other persons.

Item 15 amends section 7.8.33 of the Principal Determination which provides when resident family or recognised others persons are removed before a member ceases service. The amendment is technical in nature and removes redundant words from paragraph 7.8.33.1.a.

Items 16 to 18 amend section 8.4.21 of the Principal Determination which provides the reimbursement of costs and the required contribution from a member for tuition and accommodation of their child when they attend a school that is not at the member’s housing, or family, benefit location. The items make the following amendments:

• Item 16 amends the heading of the section to better reflect the content of the provision.

• Item 17 amends subsection 8.4.21.1 to update cross references.
• Item 18 repeals and substitutes subsection 8.4.21.2 and inserts subsections 3 and 4. The amendment provides for tuition and accommodation costs to be paid directly to the school rather than by reimbursement to the member if the decision maker is satisfied that the member is experiencing financial hardship. The section has also been redrafted into 2 subsections to promote the use of contemporary drafting styles and improve readability. Subsection 4 provides the decision makers for the purpose of subsection 2.

Items 19 and 20 amend section 12.3.5 of the Principal Determination which provides the definition of dependant for the purposes of overseas conditions. The section has been amended to clarify that to be a dependant of a member a person must normally live with the member.

Items 21 to 25 amend various provisions within the Principal Determination to make technical changes to update cross references, provide clarity and remove information which is administrative in nature, and does not need to be determined. 

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

Schedule 2—Special benefit payment amendments

Item 1 repeals subsection 2.3.22.3 of the Principal Determination which provides when a member is not eligible for a special benefit payment when they transfer to the Reserves. This provision has been relocated to a new section 2.3.22A inserted by item 2 of this Schedule.

Item 2 inserts a new section 2.3.22A into the Principal Determination which provides when a member is not eligible for a special benefit payment when they transfer to the Reserves. The section includes the provision which has been repealed by item 1 of this Schedule. A new provision has been included to provide that if a member is not eligible for the special benefit payment if they are offered, and accept, the opportunity to serve more than 120 Reserve days within 1 year following the date they transfer to the Reserves.

Item 3 repeals and substitutes section 2.3.25 of the Principal Determination which provides that a member must repay a special benefit payment if they commence a period of continuous full-time service. The section has been amended to provide that a member who provides more than 120 days of Reserve service in the first year after their transfer to the Reserves is required to repay the amount. The new section also provides that the member’s requirement to repay the amount if they provide more than 120 days of Reserve service may be waived by the CDF.

Schedule 3—Transitional provision

Clause 1 provides the definition of Defence Determination for the purpose of Schedule 4 of this Determination

Clause 2 provides that for the purpose of overseas conditions between 1 July 2023 and the commencement Schedule 2 of this Determination, that a person is a dependant of a member if they meet the conditions provided in subsection 12.3.5.1 of the Defence Determination as though the changes made by items 19 and 20 of Schedule 2 of this Determination applied at the time.

Annex B

Defence Determination, Conditions of service Amendment Determination 2023 (No. 14)

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 relating to when a member who has received a special benefit payment on transfer to the Reserves is required to repay the payment.
• Provide members access to education assistance benefits in circumstances where they are experiencing financial hardship.
• Amend district allowance provisions to ensure eligibility to the allowance continues during periods of unpaid maternity or parental leave if the member or at least one of their resident family continue to live at the remote location.
• Provide that a person under 21 years of age who has joined the member’s household under a permanent care order issued by a court or statutory authority is a child for the purpose of the Principal Determination.
• Make a number of miscellaneous amendments which promote the use of contemporary drafting styles, update cross references and remove information which is administrative in nature. 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 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.

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

The following changes made by this Determination are compatible with human rights as they:

• Provide continuity of benefits to members in times of unpaid maternity or parent leave, or during periods of financial hardship.
• Make technical 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.

The changes made by this Determination to the special benefit payment are reasonable and necessary as they require the repayment of a special benefit amount when a member has been transferred to the Reserves and performs a specified number of days of Reserve service. The requirement to repay is reasonable and consistent with the underlying policy intent of the benefit.

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.