Defence Determination, Conditions of service Amendment Determination 2024 (No. 2)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2024 (No. 2)

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:

• Schedule 1:
  • Clarify circumstances in which a member cannot receive payment of a continuation bonus.
  • Provide a discretionary provision which enables a decision maker to approve payment of a continuation bonus, if satisfied it is reasonable, in circumstances where a member would otherwise not be eligible.
• Schedule 2: Amend the provisions relating to higher duties allowance to extend the allowance to Army members in the specialist stream of the Office Aviation Pay Structure who are directed to perform duties attributed to a higher rank or higher position.
• Schedule 3:

• Amend education assistance to clarify that the benefits apply to a member whose child is categorised as resident family.
• Amend the tertiary education assistance and reunion travel for tertiary students to provide that a member’s adult child who is a tertiary student is eligible for the benefits.

• Schedule 4: Provide that Cranleigh Abu Dhabi is the benchmark school for members posted to the United Arab Emirates.
• Schedule 5: Remove directly conferred decision-making powers and make amendments that are technical in nature that improve readability.
• Schedule 6: Make technical amendments to ensure a uniform approach is taken when referencing living-in accommodation throughout the Principal Determination.
• Schedule 7:

• Align the terminology used to refer to a member’s service ending in the ADF. These amendments ensure a uniform approach is taken across Defence policies and related documents, including relevant legislation. These amendments do not alter the underlying policies, or the benefits that are currently provided.
• Extend the salary non-reduction period for Army musicians.
• Make technical amendments that update cross-references and definition sections, 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, consultation was undertaken with Navy, Army, Air Force, Defence Member and Family Support, the Directorate of Attaché and Overseas Management, the Australian Submarine Agency and the Australian Signals Directorate.

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

Annex A

Defence Determination, Conditions of service Amendment Determination 2024 (No. 2)

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 14 March 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—Continuation bonus amendments

Items 1 and 2 amend section 3.4.2 of the Principal Determination which provides the definitions that apply to continuation bonus provisions under Division 1 of Part 4 of Chapter 3. The amendments made by the items are as follows:

• Item 1 inserts definitions of ‘date of eligibility’ and ‘initial entry’.
• Item 2 amends the definition of ‘service obligation’ to include that for a member who joins the ADF as an Air Force Direct Entry Officer Aviation Candidate, service obligation means the return of service obligation that is outlined in the member’s letter of offer that commences on commencement of their final stage of their employment training.

Item 3 repeals and substitutes section 3.4.9 of the Principal Determination which provides members that Part 4 of Chapter 3 does not apply to. The amendments made by the item are as follows:

• Paragraph 3.4.9.a has been amended to clarify that the Part does not apply if, on the member’s date of eligibility, the member has a Military Employment Classification of J5.
• Paragraphs 3.4.9.b and 3.4.9.c have been amended to reduce the timeframe provided from 3 years and 6 months, to 3 years.
• Paragraph 3.4.9.f has been inserted and provides that Part 4 of Chapter 3 does not apply to a member who is re-joining the ADF either after their last period of service in the Permanent Forces ended because of the member separating from the ADF, or they completed their initial entry during a previous period of service in the ADF.

Item 4 inserts section 3.4.13A into the Principal Determination which provides a discretionary provision which allows the decision maker to approve the payment of a continuation bonus, if satisfied it is reasonable, in circumstances where the member would otherwise not be eligible.

Schedule 2—Higher duties allowance amendments

Items 1 to 4 and 6 make technical amendments that do not alter the underlying policies, or the benefits which are currently provided.

Item 5 amends section 4.1.4 of the Principal Determination which provides who Part 1 of Chapter 4 does not apply to. Paragraph 4.1.4.ba is repealed and substituted to amend the note which provides that, despite paragraph ba, an officer aviation member in another pathway/non-specialist pathway may be eligible for higher duties allowance under Part 1 of Chapter 4. The item amends the paragraph to include an Officer Aviation member in the Army or Navy, along with an Officer Aviation member in another pathway/non-specialist pathway, as eligible for higher duties allowance.

Item 7 repeals and substitutes section 4.1.10 of the Principal Determination which provides the rate of higher duties allowance an officer aviation member, who is directed to perform higher duties, is eligible for. The section is amended to clarify that the rate of higher duties allowance for a member whose salary, is more than the lowest rate of salary payable under DFRT Determination 2 of 2017 to a member holding one rank higher than a member in the same pathway or competency stream is 5% of their current salary.

Item 8 amends section 4.1.17 of the Principal Determination which provides the rate of higher duties allowance a member, who is directed to perform the duties of an APS position assessed as higher duties or the duties of a position that is normally performed by a higher rank in a position in a foreign military force, is eligible for. The item removed reference to “with an SES classification” from paragraph 4.1.17.1.a to clarify that it applies when a member is directed to perform the duties of any APS position that has been assessed as higher duties.

Schedule 3—Education assistance amendments

Item 1 amends section 1.3.1 of the Principal Determination which provides definitions for terms used throughout the determination. The definition of ‘adult child’ has been amended to include a member’s child who, immediately before turning 21 years old, was absent from the member’s home only because they are undertaking full-time education.

Item 2 amends section 1.3.19 of the Principal Determination which provides the definition of ‘accompanied resident family’ when the member’s child is absent from the member’s home because they are undertaking full-time education. One of the conditions for the recognition of the child as accompanied resident family is that the member must have accompanied resident family. Paragraph a. has been amended to allow for the recognition of a child as accompanied resident family when the member does not have a partner who has been recognised as resident family and has no accompanied resident family.

Items 3 to 13 amend a number of sections in Part 4 of Chapter 8 of the Principal Determination which provide education assistance benefits to a member who has a child who is resident family. The amendments made by the items are as follows:

• Paragraphs 8.4.9.1.b, 8.4.17.b, 8.4.20.1.b and 8.4.24.1.a have been amended to clarify that a member’s child must be the member’s resident family for the member to be eligible for the relevant education assistant benefit.
• Paragraphs 8.4.9.1.b and 8.4.20.1.b have also been amended to remove the condition that a member’s child must be under 20 years old. The definition of ‘child’ provided under section 1.3.35 of the Principal Determination provides that they person must be under 21 years of age which made the condition contradictory and redundant. 
• Sections 8.4.23, 8.4.24 and 8.4.25 have been amended to include an adult child as being eligible for education assistance when they are a tertiary student who does not live in the housing benefit location or the family benefit location.

Item 13 paragraph g. amends section 9.3.45 of the Principal Determination which provides reunion travel for tertiary students to allow them to reunite with their parents. Paragraph 9.3.45.a has been amended to include an adult child who is a tertiary student as being eligible for reunion travel.

Item 14 amends a number of sections in Part 4 of Chapter 8 of the Principal Determination which provide education assistance benefits to a member who has a child who is resident family to substitute the term “the Commonwealth” with “Defence”.

Schedule 4—Overseas amendments

Item 1 amends the table in Annex 15.6.A of the Principal Determination which provides a list of schools that set the benchmark for the amount of education assistance a member can be reimbursed when they have a child attending an education institution at the member's posting location overseas. The item repeals and substitutes item 41 of the table in Annex 15.6.A to provide that for members posted to the United Arab Emirates, the benchmark school is Cranleigh Abu Dhabi.

Schedule 5—Instrument of Authorisation amendments

Item 1 amends section 1.3.38 of the Principal Determination which provides the definition of a ‘CDF recognised partner’. The amendment adds a decision point into the section, ensuring that the member’s partner satisfactorily fits the criteria for the CDF to recognise them.

Item 2 amends section 7.3.13 of the Principal Determination which provides when a home must be occupied for the purpose of a member receiving assistance with an initial home purchase. The amendment repeals and substitutes subsection 7.3.13.2 to amend the decision point to allow the CDF to extend the period for occupation by up to 12 months. This amendment ensures the decision to be made is relevant to the contents of the section.

Item 3 amends section 7.4.43 of the Principal Determination which provides accommodation on board for seagoing members. The amendment alters the tense of subsection 7.4.43.2 to clarify that the decision is a command power rather than a decision to be made under the Principal Determination.

Item 4 amends section 9.3.54 of the Principal Determination which provides the extra condition imposed on eligibility for a member’s partner to receive compassionate travel benefits. The item amends paragraph 9.3.54.b to clarify the decision being made by the CDF.

Items 5, 10 and 11 amend various provisions from the Principal Determination by making technical amendments to remove the direct conferral of various decision making powers within the Principal Determination. The Instrument of Authorisation associated with the Principal Determination has been amended in line with this Determination to reflect the removal of this information. The items make the following amendments:

• The terms “decision maker” and “decision maker’s” are removed and replaced with “CDF” and “CDF’s”.
• Remove ‘decision maker’ definitions or outdated CDF decision points.

Items 6 and 7 amend section 15.3.36 of the Principal Determination which provides the eligibility for a member to receive reimbursement of the cost of fares for a child, and are as follows:

• Item 6 amends section 15.3.36 to remove the unnecessary additional decision point for the section.
• Item 7 amends paragraph 15.3.36.c to amend the language of the decision point of the paragraph in line with current drafting practice.

Item 8 amends section 15.6.29 of the Principal Determination which provides the benefits when a member’s child leaves an overseas posting location to attend school in Australia. The item amends paragraph 15.6.29.2.b to clarify the decision to be made by the CDF under this section.

Item 9 amends section 16.4.11 of the Principal Determination which provides benefits available to members who have a posting shorter than the ordinary posting period. The amendment removes unnecessary wording from the CDF decision point under subsection 16.4.11.5 in line with current drafting practices.

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

Schedule 6—Living-in amendments

Items 1, 2, 4 to 13, 15 to 22 and 24 to 34 amend various provisions within Chapters 7 and 9 of the Principal Determination to update references to living-in accommodation to ensure consistency of the terms used throughout the Principal Determination.

Item 3 amends section 7.1.23 of the Principal Determination which provides house-hunting benefits to members and an adult who is resident family. Paragraph 7.1.23.3.b has been repealed and substituted to incorporate the exceptions and to update references to living-in accommodation to ensure consistency of the terms used throughout the Principal Determination.

Item 14 repeals and substitutes subsection 7.4.27.2 of the Principal Determination which provides the contribution a member must pay towards living-in accommodation while on a period of leave without pay. The subsection has been amended to promote the use of contemporary drafting styles and to update references to living-in accommodation to ensure consistency of the terms used throughout the Principal Determination.

Item 23 amends section 7.5.14 of the Principal Determination which provides the type of accommodation a member who is required to occupy temporary accommodation may use. Subsection 7.5.14.3 has been repealed and substituted to promote the use of contemporary drafting styles and to update references to living-in accommodation to ensure consistency of the terms used throughout the Principal Determination.

The changes made by this schedule are technical in nature. They promote consistency and the use of contemporary drafting styles. They do not alter the underlying policies or the benefits which are currently provided.

Schedule 7—Miscellaneous amendments

Items 1 and 2 amend section 1.3.1 of the Principal Determination which contains the interpretation of words and phrases commonly used, and are as follows:

• Item 1 repeals and substitutes the definition of ‘ceasing continuous full‑time service’ to amend paragraph a by categorising specific forms of cessation of a member’s service under the general ‘involuntary separation’, which is now also defined.
• Item 2 inserts the following definitions:

• ‘Involuntary separation’, as a consequence of the changes made by item 1, which is defined as the involuntary end of a period of service, except redundancy, which has the effect of ending all forms of a member’s service in the ADF.
• ‘Force assigned’, to ensure that the domestic provisions of the Principal Determination have an applicable definition.

Item 3, 15, 16 and 28 amend various sections within the Principal Determination to fix grammatical errors.

Items 4 to 12, 14, 17 to 23, 26, 27, 30 and 33 amend various provisions of the Principal Determination where references to a member’s end of service are replaced with a reference describing involuntary separation. The relevant provisions are also amended to promote the use of contemporary drafting styles and update legislative citations.

Item 13 amends Annex 3.2.B Part 1 of the Principal Determination, which provides the salary non‑reduction for members with the rank of Warrant Class Officer Class 1. This amendment extends the salary non-reduction period for the Army employment category of Musician Grade 2 from 7 March 2024 to 7 March 2025.

Item 24, 29, 37 and 39 amend various provisions within the Principal Determination to correct cross references.

Item 25 amends section 5.4.9 of the Principal Determination, which provides the purpose of Chapter 5 Part 4 Division 3. The item amends paragraph 5.4.9.f to replace the word “Duty” with “Force” to ensure the use of the correct term.

Items 31, 32, 34, 35 and 38 amend various definition provisions in the Principal Determination, and are as follows.

• Items 31, 32 and 34 repeal and substitute sections 9.5.8, 9.6.7 and 9.7.4 to update the definitions to reflect current drafting practice.
• Item 35 inserts the definition of ‘force assigned’ into section 12.3.1, which is moved to Chapter 12 to ensure it applies to all provisions relating to overseas deployment.
• Item 38 repeals the definition of ‘force assigned’ from section 17.1.2, which is moved into Chapter 12 by item 13 of this Schedule.

Item 36 amends the heading of Chapter 14 Part 2 Division 2 of the Principal Determination. The heading is amended to more accurately reflect the contents of the Division.

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

Schedule 8—Transitional Provisions

Clause 1 defines ‘Defence Determination’, which is incorporated as in force from time to time.

Clause 2 provides a transitional provision for a member who was posted to the United Arab Emirates between 18 September 2023 and the commencement of this Determination if they had a child who attended school at the posting location, and they were required to pay compulsory tuition fees for the child to attend the school. The member is eligible for the reimbursement of education costs between 18 September 2023 and the commencement of this Determination as though the changes made by Schedule 4 of this Determination had been in force at the time.

Clause 3 provides that a member who was eligible for salary non-reduction under Annex 3.2.B Part 1 table item 1 of the Defence Determination on 7 March 2024, remains eligible for salary non-reduction between 8 March 2024 and the commencement of this Determination, as though the changes made by item 13 of Schedule 7 of this Determination had applied at the time.

Annex B

Defence Determination, Conditions of service Amendment Determination 2024 (No. 2)

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:

• Schedule 1:
  • Clarify circumstances in which a member cannot receive payment of a continuation bonus.
  • Provide a discretionary provision which enables a decision maker to approve payment of a continuation bonus, if satisfied it is reasonable, in circumstances where a member would otherwise not be eligible.
• Schedule 2: Amend the provisions relating to higher duties allowance to extend the allowance to Army members in the specialist stream of the Office Aviation Pay Structure who are directed to perform duties attributed to a higher rank or higher position.
• Schedule 3:

• Amend education assistance to clarify that the benefits apply to a member whose child is categorised as resident family.
• Amend the tertiary education assistance and reunion travel for tertiary students to provide that a member’s adult child who is a tertiary student is eligible for the benefits.

• Schedule 4: Provide that Cranleigh Abu Dhabi is the benchmark school for members posted to the United Arab Emirates.
• Schedule 5: Remove directly conferred decision-making powers and make amendments that are technical in nature that improve readability.
• Schedule 6: Make technical amendments to ensure a uniform approach is taken when referencing living-in accommodation throughout the Principal Determination.
• Schedule 7:

• Align the terminology used to refer to a member’s service ending in the ADF. These amendments ensure a uniform approach is taken across Defence policies and related documents, including relevant legislation. These amendments do not alter the underlying policies, or the benefits that are currently provided.
• Extend the salary non-reduction period for Army musicians.
• Make technical amendments that update cross-references and definition sections, 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 ensures 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 a child to an adequate standard of living

Recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. Article 27 of the Convention on the Rights of a Child, states Parties shall take appropriate action to assist parents and others responsible for a child, to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

Right of the child to education

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

Assessment of compatibility

Schedule 1 is compatible with human rights as it provides members with payment of a continuation bonus in circumstances where they would otherwise not be eligible.

Schedule 2 is compatible with human rights as it provides members higher duties allowance commensurate to the higher duty they are directed to perform.

Schedule 3 and 5 to 7 make amendments to the Principal Determination which does not change the underlying policies or benefits. As such, it does not engage with any of the applicable rights or freedoms.

Schedule 4 is compatible with human rights as it provides a benchmark school for members posted to the United Arab Emirates that is of a standard and rigour that is more closely aligned with Australian public schools.

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.