Defence Determination, Conditions of service Amendment Determination 2024 (No. 1)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2024 (No. 1)

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:

• Provide a salary non-reduction period of 5 years for Air Force members in the Airborne Electronics Analyst employment category. This will preserve the salary of members who do not currently meet the new prerequisites for the revised skill grade while the members complete the prescribed service and training requirements to advance to a higher pay grade in the new Airborne Electronics Analyst structure.
• Expand the cohort of members who have been given additional time to accept an offer of a continuation bonus to include members whose agreed period of service commences between 1 January 2024 and 31 March 2024. These amendments ensure that members, who would otherwise become ineligible through no fault of their own, have time to accept an offer of a continuation bonus.
• Amend the conditions which provide the number of bedrooms for children a member’s own home is to have to be a suitable own home.
• Amend the home sale and purchase provisions to enable a member who was on a transition location (general) or a transition location (medical) agreement before they ceased continuous full-time service to receive a reimbursement of the costs related to the sale of their home in the housing benefit location before they moved to their transition benefit location.
• Amend provisions relating to hardship locations to meet the requirements of a data service provider and adhere to intellectual property limitations placed on Defence.
• Amend the approved club for members posted to Türkiye so they can pursue sporting, recreational and fitness activities.
• Make technical amendments that update cross references, remove examples and see notes, 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 restrictions

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 Navy, Army, Air Force, the Security and Estate Group 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 2024 (No. 1)

Operational details

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

Section 2 provides that the whole of this Determination commences on 1 February 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

Item 1 amends section 1.3.1 of the Principal Determination which provides defined terms used throughout the determination. A new definition of ‘hardship location’ has been inserted to provide that the term has the meaning as provided under section 12.3.1 of the determination.

Item 2 amends section 1.3.10 of the Principal Determination which provides the definition of ‘housing benefit location’. The item amends paragraph 1.3.10.d to correct a typographical error.

Item 3 amends section 1.3.35 of the Principal Determination which provides the definition of ‘child’. The item amends subsection 1.3.35.2 to correct a cross-reference.

Items 4 and 5 amend Annex 3.2.B of the Principal Determination which provides the salary non-reduction periods for specified members with the rank of Warrant Officer Class 1 and Warrant Officer Class 2 or lower. The items insert new employment categories of Airborne Electronics Analyst with a competency progression grade of 3 and 4 for Air Force at Pay Grade 7 of Part 1 and Part 2 of the Annex to provide a salary non-reduction period of 18 January 2024 to 17 January 2029.

Item 6 amends section 3.4.2 of the Principal Determination which provides the definitions that apply to Part 4 of Chapter 3. The definition of ‘agreed period of service’ has been amended to extend paragraph b. of the definition to include members whose agreed period of service falls between 1 January 2024 and 31 March 2024. This amendment ensures that members who would otherwise become ineligible through no fault of their own have time to accept an offer of a continuation bonus.

Item 7 repeals and substitutes paragraph 3.4.10.2.c of the Principal Determination which provides that a member ceases to be eligible to be offered a continuation bonus on 31 March 2024 if, between 1 July 2023 and 31 December 2023, they either:

• Complete 4 years of continuous effective service; or
• Complete the service obligation imposed on initial entry into the Permanent Forces.

The paragraph has been amended to extend the date during which these events can occur from 31 December 2023 to 29 February 2024.

Items 8 to 10 and 19 amend various provisions within the Principal Determination to remove deeming provisions and to promote the use of contemporary drafting styles and improve readability.

Items 11 to 13, 33 and 37 to 39 amend various provisions within the Principal Determination to remove examples and see notes from each provision to promote the use of contemporary drafting styles and improve readability.

Items 14 and 15 amend section 6.1.5 and 6.5.46 of the Principal Determination to make technical amendments that promote the use of contemporary drafting styles.

Items 16 to 18 amend section 7.2.5 of the Principal Determination which provides when a member’s own home is a suitable own home. The items make the following amendments:

• Item 16 amends subsection 7.2.5.1 to include a reference to section 7.2.9, which provides for when a member’s home is unsuitable.
• Item 17 amends paragraph 7.2.5.1A.b which provides that for every 2 children who meet specified conditions that they are eligible for 1 bedroom. The conditions have been amended to provide that 2 children of the same gender are to have 1 bedroom when they have an age difference of 4 years or less. If the children have an age difference of more than 4 years they are eligible for a bedroom each.
• Item 18 amends subparagraph 7.2.5.1A.c.i to correct a typographical error.

Items 20 and 21 amend section 7.3.3 of the Principal Determination which provides the members who are not eligible for assistance with the sale or purchase of an own home. Paragraphs c. and d. which provide that a member who is on a transition location (general) agreement or a transition location (medical) agreement is not eligible for assistance are being repealed. A member who is on one of the transition location agreements will be eligible for assistance on the sale of a home when they cease continuous full-time service, as provided by the change under item 28 of this Schedule.

Item 22 repeals and substitutes section 7.3.11 of the Principal Determination which provides the members who are not eligible for the payment of the home purchase assistance scheme. The section has been amended to include a member who is on a transition location (general) agreement or a transition location (medical) agreement. As these members will be ceasing their service with the ADF they would not be able to meet the requirements to be eligible for the benefit.

Items 23, 32, 34 and 36 amend various provisions within the Principal Determination to make technical amendments that promote the use of contemporary drafting styles and improve readability.

Items 24 to 26 amend section 7.3.21 of the Principal Determination which provides the members who are not eligible for the purchase assistance under the home purchase or sale expenses allowance. The items make the following amendments:

• Item 24 amends the heading of the section to better reflect the content.
• Item 25 inserts ‘or land’ after references to a home to provide that a member is not eligible for assistance for a purchase of land overseas or in the location where they are required to live in or occupy a tied or appointment residence.
• Item 26 repeals and substitutes subsection 1 to provide that a member who is on a transition location (general) agreement or a transition location (medical) agreement is not eligible for assistance with the purchase of a home or land.

Item 27 repeals section 7.3.24 from the Principal Determination which provides that a member of the Reserves on a period of continuous full-time service of less than 12 months is not eligible for assistance under the home purchase or sale expenses allowance. This section is not required as it duplicates the provision under section 7.3.3 of the Principal Determination.

Item 28 repeals and substitutes section 7.3.30 of the Principal Determination which provides when a member who is ceasing continuous full-time service is eligible for assistance with the sale of a home under the home purchase or sale expenses allowance. The section has been amended to include a member who was on a transition location (general) agreement or a transition location (medical) agreement immediately before they ceased continuous full-time service as being eligible for the reimbursement of the costs on the sale of a home in the housing benefit location before the member moved to their transition benefit location. The section has also been redrafted to promote the use of contemporary drafting styles and improve readability.

Items 29 and 31 amend sections 7.4.24 and 7.4.30 respectively of the Principal Determination to remove exceptions and to promote the use of contemporary drafting styles and improve readability.

Item 30 amends section 7.4.28 of the Principal Determination which provides the contribution that a member who changes rank is required to pay. The item amends subsection 7.4.28.1 to include members who are commissioned to a new rank and to promote the use of contemporary drafting styles and improve readability.

Item 35 amends section 9.1.13 of the Principal Determination which provides that the CDF may approve travel costs that are not otherwise payable under Chapter 9. The amendment clarifies that close relatives may receive these travel costs to align with extant policy.

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

Schedule 2—Overseas amendments

Items 1 and 2 amend section 12.3.1 of the Principal Determination which provides defined terms used throughout Chapters 12 to 17 of the determination.

• Item 1 amends the definition of ‘data service provider’ to provide that there may be more than one provider contracted to Defence to provide data about living costs and conditions at overseas posting locations.
• Item 2 inserts a new definition of ‘hardship location grade’ to provide that the term means the grade which is provided to Defence by a data service provider for a hardship location. Hardship locations are graded based on the difficult conditions that may be encountered by a member and their dependants at a hardship location and the grades are reviewed annually.
• The hardship location grades for each location will be available to administrators and members on the Defence intranet. These grades are the intellectual property of the data service provider and cannot be disclosed publically under the terms and conditions under which they are obtained.

Items 3, 5 to 9, 20 and 21 amend various provisions within the Principal Determination to remove examples and see notes from each provision to promote the use of contemporary drafting styles and improve readability.

Item 4 amends section 14.4.4 of the Principal Determination which provides a cross reference to the definition of the ‘international best fare’. The amendment corrects the date to reflect the correct publication date of the Resource Management Guide.

Items 10 and 11 amend section 15.3.21 of the Principal Determination which provides the vehicle allowance a member is eligible for when using their private vehicle for travel. The amendments do the following.

• Item 10 removes the Chapter, Part and Division number from the reference in the formula, leaving the section number, to promote the use of contemporary drafting styles and improve readability.
• Item 11 incorporates a reference into the formula. The reference is currently provided in a see note which is being removed by item 21 of this Schedule.

Item 12 repeals and substitutes section 15.4.11 of the Principal Determination which provides benefits for when a member’s accommodation becomes unavailable or unfit for occupation. The section is amended to remove a deeming provision and to promote the use of contemporary drafting styles and improve readability.

Item 13 amends subsection 15.8.2.2 of the Principal Determination which specifies the approved club in a member’s location for the purpose of pursuing sporting, recreational and fitness activities. The table has been amended to change the approved club for members posted to Türkiye to the ‘Move on Fitness Club’.

Items 14 to 17 amend Annex 16.B of the Principal Determination which provides the hardship locations and the conditions of service those locations attract.

• Items 14 to 16 amend the headings of columns 1 to 3 of the Annex to promote the use of contemporary drafting styles.
• Item 17 repeals column 4 of the table which provides the hardship location grade for posting locations overseas. The hardship location grades are being removed from the Principal Determination as they are the intellectual property of the data service provider and cannot be disclosed publically under the terms and conditions under which they are obtained.

Item 18 amends section 17.7.23 of the Principal Determination which provides the conditions which must be met for a member to receive relief out-of-country travel fare assistance. The item amends paragraph 17.7.23.1A.b to clarify that a member must be outside their operational area on recreation or war service leave for 7 consecutive days or longer to be eligible for relief out-of-country fare assistance for return travel to an approved destination.

Item 19 amends a number of provisions in Chapters 12 and 16 of the Principal Determination. The provisions are amended to substitute references to columns in Annex 16.B which as a consequence of the changes made by items 14 to 16 of this Schedule.

Item 22 repeals various provisions from the Principal Determination. The repeals are as follows:

• Item 22.a repeals subsection 13.3.19.6 of the Principal Determination which provides examples for the application of the rest of the section. Examples are being removed from the Principal Determination to promote the use of contemporary drafting styles and improve readability.

• Item 22.b repeals section 14.3.10 of the Principal Determination which provides that removals during a posting are provided for by another part of the Principal Determination. See notes are being removed from the Principal Determination to promote the use of contemporary drafting styles and improve readability.
• Item 22.c repeals paragraph 14A.1.10.1.c of the Principal Determination which provides benefits for a person evacuated from China between 29 January 2020 and 10 February 2020. This paragraph is no longer required as no personnel remain evacuated.

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

Schedule 3—Transitional Provisions

Clause 1 defines ‘Defence Determination 2016/19’ for the purpose of this Schedule.

Clause 2 provides that a member who is in an employment category under item 4 or 5 of Schedule 1 of this Determination is eligible for salary non-reduction between 18 January 2024 and the commencement of this Determination as though the schedule had applied at the time.

Clause 3 provides that, if the commencement day of a members agreed period of service for a continuation bonus falls between 31 December 2023 and the commencement of this Determination, Part 4 of Chapter 3 of the Defence Determination applies to a member as though the changes made by items 6 and 7 of this Schedule 1 of this Determination applied at the time.

Clause 4 provides a transitional provision for a member who was on a transition location (general) or transition location (medical) agreement before they ceased continuous full-time service and sold a home between 1 July 2023 and the commencement of this Determination. The member is eligible for the reimbursement of the costs related to the sale of the home under the home purchase or sale expenses allowance as though the changes made by items 20, 21 and 28 of Schedule 1 of this Determination applied at the time.

Clause 5 provides a transitional provision for a member who was posted to Türkiye between 19 September 2023 and the commencement of this Determination. The member is eligible for the cost of the club membership they would have been eligible for had the changes made by item 13 of Schedule 2 of this Determination been in force between 19 September 2023 and the commencement of this Determination.

Annex B

Defence Determination, Conditions of service Amendment Determination 2024 (No. 1)

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:

• To provide a salary non-reduction period of 5 years for Air Force members in the Airborne Electronics Analyst employment category. This will preserve the salary of members who do not currently meet the new prerequisites for the revised skill grade while the members complete the prescribed service and training requirements to advance to a higher pay grade in the new Airborne Electronics Analyst structure.
• To expand the cohort of members who have been given additional time to accept an offer of a continuation bonus to include members whose agreed period of service commences between 1 January 2024 and 31 March 2024. These amendments ensure that members, who would otherwise become ineligible through no fault of their own, have time to accept an offer of a continuation bonus.
• To amend the conditions which provide the number of bedrooms for children a member’s own home is to have to be a suitable own home.
• To amend the home sale and purchase provisions to enable a member who was on a transition location (general) or a transition location (medical) agreement before they ceased continuous full-time service to receive a reimbursement of the costs related to the sale of their home in the housing benefit location before they moved to their transition benefit location.
• To amend provisions relating to hardship locations to meet the requirements of a data service provider and adhere to intellectual property limitations placed on Defence.
• To amend the approved club for members posted to Türkiye so they can pursue sporting, recreational and fitness activities.
• To make technical amendments that update cross references, remove examples and see notes, 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.

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

Schedule 1 promotes the right to just and favourable conditions of work by providing a 5-year salary non-reduction period for Air Force members in the Airborne Electronics Analyst employment category. This will preserve the salary of members who do not currently meet the prerequisites in the new Airborne Electronics Analyst structure. It also provides members with additional time to accept an offer of a continuation bonus where, through no fault of their own, the member is unable to meet the eligibility criteria.

Schedule 1 promotes the right to an adequate standard of living by extending the assistance with costs associated with the sale of a home to members who are on a transition location (general) or a transition location (medical) agreement.

Schedules 1 and 2 make amendments to the Principal Determination which do not change the underlying policies or benefits. As such, they 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.