Defence Determination, Conditions of service Amendment Determination 2024 (No. 7)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2024 (No. 7)

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.

The Principal Determination is exempt from sunsetting under item 21A of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. The exemption was granted as the instrument is a large and complex document that is subject to regular review and amendment. The exemption also provides certainty for members, stakeholders and administrators.

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:

• Enable a member to share their excess recreation leave credits with their partner if they are part of a dual serving couple.
• Include recognised other persons who has an interdependent relationship with a member as eligible dependants for the purpose of the ADF family health program.
• Update the post index locations and data service provider locations that apply to posting locations of members, including members of the Reserves, who are performing duty overseas, when determining members’ allowances and benefits.
• Update the eligibility criteria for the trainee’s dependant allowance to increase the expected annual income limit for a member’s dependant to the current minimum wage as provided by the Fair Work Act 2009.
• Make amendments that ensure members continue to pay their rental bond advances back in 26 fortnightly instalments.
• Amend the method used to calculate the maximum annual benefit payable for compulsory tuition fees for a member’s dependant attending school overseas to ensure that the benefit is fit for purpose. It also amends the purpose statement of Chapter 15 Part 6 to clarify that education assistance assists with maintaining a standard of education overseas which is similar to that received in Australia.
• Clarify what is to be taken into account when determining the cost of a removal under Chapter 6 Part 5 Division 4.
• Amend the rates of allowances and related benefits that may be paid to a member in connection with travel undertaken for duty purposes. The rates are adjusted annually to ensure they remain contemporary based on annual advice from a contracted service provider. The rate changes this Determination introduces are based on the Subscription Notice No. 5 of 6 2023‑2024 Allowance Subscription Service Travel Related Allowances – May 2024.
• Make technical amendments that promote the use of contemporary drafting styles, consistency and improve readability within the Principal Determination.

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, Joint Health Command, Employment Conditions Abroad International Ltd, Directorate of Attaché and Overseas Management, Australian Submarine Agency, Australian Signals Directorate, People Systems & Payroll Services Branch, Defence Travel and Directorate of Relocations and Housing.

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

Annex A

Defence Determination, Conditions of service Amendment Determination 2024 (No. 7)

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.
• Schedules 1 to 4 and 7 of the Determination commences on 4 July 2024
• Schedule 5 of the Determination commences on 12 September 2024.
• Schedule 6 of the Determination commences on 10 October 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—Recreation leave sharing for dual serving couples amendments

Item 1 amends section 5.4.33A of the Principal Determination which provides how a member’s recreation leave balance is reduced when they take recreation leave or they have been directed not to attend for duty for the purpose of reducing the their leave credits. Subsection 5.4.33A, which provides the order various types of leave are to be taken, has been amended to include donated recreation leave as a consequence of the changes made by item 2 of this Determination.

Item 2 inserts Division 9 of Part 4 to Chapter 5 into the Principal Determination. The new division provides how a member can donate their excess recreation leave to their partner if they are part of a dual serving couple. The new section includes the following:

• Section 5.4.46 which provides the purpose of the division.
• Section 5.4.47 which provides the definitions that apply to the division.
• Section 5.4.48 which provides who the division applies to.
• Section 5.4.49 which provides members the division does not apply to.
• Section 5.4.50 which provides the circumstances in which a member who is part of a dual serving couple can share their recreation leave credits with their partner. The section further provides that leave can only be transferred in whole days and also provides the effect donating leave credits has on the leave credit balance of both members.
• Section 5.4.51 which provides the effect ceasing continuous full-time service has on leave credits that have been donated under the division.

Schedule 2—ADF family health program – recognised other person amendments

Item 1 amends section 8.9.1 of the Principal Determination which provides the purpose of the Chapter 8 Part 9. The section has been amended to include reference to “certain recognised other persons” as a consequence of the changes made by item 3 of this Schedule. 

Item 2 amends section 8.9.2 of the Principal Determination which provides the definitions that apply to Chapter 8 Part 9. The definition of ‘eligible dependant’ has been repealed and substituted as a consequence of the changes made by item 2 of this Schedule.

Item 3 inserts section 8.9.2A into the Principal Determination which provides the definition of ‘eligible dependant’. The definition has been redrafted as a complex definition and now includes a recognised other person who has an interdependent relationship with a member. By including a recognised other person who has an interdependent relationship with a member as an eligible dependant, a member can be reimbursement for health costs incurred within Australia under the ADF family health program.

Schedule 3—Post index location amendments

Items 1 to 5 amends Annex 12.3.B of the Principal Determination which provides the list of post index locations and the respective data service provider locations that are applicable to the posting location of a member, including a member of the Reserves, who is performing duty overseas. The amendments are as follows:

• Item 1 inserts item 1AA before item 1A of Annex 12.3.B to include ‘Austria’ as a new post index location and ‘Vienna’ as its data service provider location;
• Item 2 repeals item 14 of Annex 12.3.B and substitutes with items 14 and 14A to include post indexes for ‘Germany’ and ‘Berlin’;
• Items 3 and 4 make the following amendments:

• Replaces the post index location for ‘South Korea’ with its official name ‘Republic of Korea’ in item 41A, now item 38A.
• Replaces the data service provider location ‘Changwon’ with ‘Busan’ in item 41B, now item 38B, as the data is not provided for Changwon.
• Repeals item 41C as the data for Seoul is already provided in item 41A, now item 38A.

• Item 5 repeals and substitutes item 67 of Annex 12.3.B to correct a typographical error.

Schedule 4—Miscellaneous amendments

Item 1 amends section 4.8.6 of the Principal Determination which provides the eligibility criteria for trainees to receive trainee’s dependant allowance. Paragraph 4.8.6.1.a has been amended to increase the expected annual income of a trainee’s eligible dependant from $45,905.60 to $47,626.80 which is the current minimum wage for the 2024/2025 financial year under the Fair Work Act 2009.

Item 2 amends section 5.4.22 of the Principal Determination which provides information relating to the application process for purchasing recreation leave. Subsection 5.4.22.1 has been repealed and substituted to remove unnecessary information.

Item 3 amends section 5.5.15 of the Principal Determination which specifies how prior service is treated when calculating how much accrued service a member has. The section has been amended to incorporate the information provided in the exceptions into subsection 5.5.15.2. The amended subsection clarifies the effect a gap in two periods of service has on the ability to have a period of prior service recognised.

Items 4 and 5 amend section 7.6.21 of the Principal Determination which provides the contribution a member must make when they are living in a rent band choice home that is below their rank group. Item 4 repeals and substitutes subsection 7.6.21 2 to improve readability and promote the use of contemporary drafting styles. Item 5 repeals subsection 7.6.21.3 as a consequence of the changes made by item 4.

Item 6 amends section 7.7.19 of the Principal Determination which provides the contribution a member must make towards member’s choice accommodation while on leave without pay. Subsection 7.7.19.3 has been repealed and substituted to improve readability and promote the use of contemporary drafting styles.

Items 7 and 8 amend paragraph 7.8.48.1.b which provides the number of instalments a member is to repay a bond or other fees for securing a rental property over. The section was amended by Defence Determination, Conditions of service amendment Determination 2024 (No. 6) in error, and the changes made by these items returns the provision to what was provided before the changes were made. This amendment commences on the same date that the change made by Defence Determination, Conditions of service amendment Determination 2024 (No. 6) commences so no members will be affected by this amendment.

Item 9 amends the heading of Division 1A of Chapter 9 of the Principal Determination. The heading has been amended to omit “Division 1A” and substitute with “Part 1A” to correctly name the Part.

Item 10 amends section 15.5.10 of the Principal Determination which provides the pharmaceutical costs for a member’s dependant overseas if they held a health care card in Australia. Paragraph 15.5.10.1.a has been amended to improve readability and to promote the use of contemporary drafting styles.

Item 11 repeals and substitutes section 15.6.1 of the Principal Determination which provides the purpose of education assistance that a member is eligible for when they have a child attending an education institution at the member's posting location overseas. The section has been amended to provide that the education assistance benefit is to assist in maintaining the standard of education close to what would be received in an Australian public school.

Item 12 repeals and substitutes section 15.6.10 of the Principal Determination which provides the compulsory tuition fee benefit for which a member with a child attending a school overseas is eligible. Section 15.6.10 has been amended to change the method used to calculate the compulsory tuition fee benefit for a member who is posted to the USA to ensure that the benefit is fit for purpose. The section has also been rewritten to promote the use of contemporary drafting styles.

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

Schedule 5—Cost of removal amendments

Item 1 amends the definition of ‘cost of removal’ under section 6.5.24A of the Principal Determination. The definition has been amended to clarify that the cost of a removal includes vehicle removal assistance payable to the member under Chapter 6 Part 5A, removal travel under Chapter 9 Part 2 Division 3 and travel on posting under Chapter 9 Part 2 Division 4.

Schedule 6—Travel and meal allowance amendments

Item 1 repeals and substitutes the table in section 4.5.9 of the Principal Determination which sets out the rates of meal allowance payable in circumstances where Service-provided meals are unavailable. The rates have increased on average by 5.56%.

Items 2 and 3 amend section 7.5.24 of the Principal Determination which provides meal allowance rates for a member and each of their resident family and other recognised persons when they stay in temporary accommodation.

• Item 2 repeals and substitutes the table in subsection 7.5.24.2 which provides meal allowance rates for a member and each their resident family and other recognised persons aged 10 years or older. The rates have increased on average by 5.59%.
• Item 3 repeals and substitutes the table in subsection 7.5.24.3 which provides meal allowance rates for a member's resident family and other recognised persons that is aged less than 10 years. The rates have increased on average by 5.65%.

Item 4 amends subsection 9.5.10.2 of the Principal Determination which provides the rate for part-day travelling allowance. The rate has increased by 4.99%.

Item 5 amends subparagraph 9.5.20.2.d.ii of the Principal Determination which provides the maximum amounts which a member may use their Defence Travel Card to pay for accommodation, meals and incidentals when living-in during a travel period. The rate has increased by 4.35%.

Item 6 amends paragraph 9.5.22.2.c of the Principal Determination which provides the maximum amounts which a member may use their Defence Travel Card to pay for accommodation, meals and incidentals when on a travel period longer than 21 days. The rate has increased by 4.35%.

Item 7 amends table item 5 in subsection 9.5.39.2 of the Principal Determination which provides for the maximum amount of travelling allowance a member is eligible for when on a travel period up to or longer than 21 days. The rate has increased by 4.35%.

Item 8 amends paragraph 9.5.41.3.c of the Principal Determination which provides the incidentals rate that a member is eligible for when living in or out on a journey longer than 21 days. The incidentals rate has increased by 4.35%.

Item 9 repeals and substitutes the table in Part 1 of Annex 9.5.A of the Principal Determination which provides the accommodation, meals and incidental rates for a member at the rank of Brigadier or higher, and for the rank of Colonel or lower. Specifically:

• Capital city accommodation rates for Brigadier or higher decreased on average by 3.68%, and for Colonel or lower decreased on average by 3.67%.
• The medium‑cost country centre accommodation rates for Brigadier or higher decreased on average by 2.9%, and for Colonel or lower decreased on average by 2.58%.
• The accommodation rate for country-centres for Brigadier or higher decreased on average by 2.66%, and for Colonel or lower decreased on average by 2.84%.

Item 10 repeals and substitutes the table in Part 2 of Annex 9.5.A of the Principal Determination which provides the accommodation, meals and incidental rates for high-cost country centres. Ten locations have been removed to reflect the changing cost of living and accommodation in these areas.

Item 11 repeals and substitutes the table in Part 3 of Annex 9.5.A of the Principal Determination which lists the medium-cost country centres for accommodation, meals and incidental rates. Nine locations have been added and three locations have been removed to reflect the changing cost of living and accommodation in these areas.

Item 12 repeals and substitutes the table in Part 4 of Annex 9.5.A of the Principal Determination which provides the meals and incidentals rates payable. The meal rates have increased by 5.59%, and the incidentals rates have increased by 4.13%.

Item 13 repeals and substitutes the table in Part 2 of Annex 9.5.B to the Principal Determination which provides the maximum meal rates for a member living out on a journey longer than 21 days. The daily rates have increased by 5.59%.

Item 14 amends the formula in subsection 15.2A.27.3 of the Principal Determination which provides the meal allowance that a member is eligible for if they perform additional duty while living at a posting location overseas. The rate has increased by 5.65%.

Schedule 7—Transitional Provisions

Clause 1 provides the definitions which apply to the Schedule.

Clause 2 provides that a member who is eligible for benefits under Chapter 8 Part 9 is eligible for the reimbursement of costs under the ADF family health program for a person as though they were an eligible dependant if they meet all of the following:

• They were recognised other person between 1 July 2023 and the commencement of Schedule 2 of this Determination, and
• They are registered for the family health program between 4 July 2024 and 4 August 2024.

Annex B

Defence Determination, Conditions of service Amendment Determination 2024 (No. 7)

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:

• Enable a member to share their excess recreation leave credits with their partner if they are part of a dual serving couple.
• Include recognised other persons who has an interdependent relationship with a member as eligible dependants for the purpose of the ADF family health program.
• Update the post index locations and data service provider locations that apply to posting locations of members, including members of the Reserves, who are performing duty overseas, when determining members’ allowances and benefits.
• Update the eligibility criteria for the trainee’s dependant allowance to increase the expected annual income limit for a member’s dependant to the current minimum wage as provided by the Fair Work Act 2009.
• Make amendments that ensure members continue to pay their rental bond advances back in 26 fortnightly instalments.
• Amend the method used to calculate the maximum annual benefit payable for compulsory tuition fees for a member’s dependant attending school overseas to ensure that the benefit is fit for purpose. It also amends the purpose statement of Chapter 15 Part 6 to clarify that education assistance assists with maintaining a standard of education overseas which is similar to that received in Australia.
• Clarify what is to be taken into account when determining the cost of a removal under Chapter 6 Part 5 Division 4.
• Amend the rates of allowances and related benefits that may be paid to a member in connection with travel undertaken for duty purposes. The rates are adjusted annually to ensure they remain contemporary based on annual advice from a contracted service provider. The rate changes this Determination introduces are based on the Subscription Notice No. 5 of 6 2023‑2024 Allowance Subscription Service Travel Related Allowances – May 2024.
• Make technical amendments that promote the use of contemporary drafting styles, consistency and improve readability within the Principal Determination.

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 engages Article 27 of the Convention on the Rights of a Child. Article 27 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 who are part of a dual serving couple with the ability to share their recreation leave credits as a part of their conditions of service. This enables members who have excess recreation leave credits to donate their leave credits to their partner.

Schedule 2 is compatible with human rights as it provides members with reimbursement for health costs incurred within Australia by persons who have an interdependent relationship with the member as a part of their conditions of service.

Schedule 4 item 1 is compatible with human rights as it expands eligibility for the trainee's dependant allowance under Chapter 4, Part 8, Division 1A of the Defence Determination by ensuring the rate remains contemporary. This is provided as a part of the member’s conditions of service.

Schedule 4 items 7 and 8 is compatible with human rights as it allows members to repay their rental bond advances received as a part of their conditions of service to Defence over 26 fortnightly instalments, rather than all at once.

Schedule 4 items 11 and 12 are compatible with human rights as they provide benefits to a member as a part of their conditions of service to assist with any increased costs for their child's education as a result of the member's posting overseas, and maintain a standard of education close to that received in Australian public schools.

Schedule 5 is compatible with human rights as it ensures the contribution a member with an approved alternate located work agreement is required to make towards the cost of a removal provided as a part of their conditions of service is calculated based on the relevant removal benefits which apply.

Schedule 6 is compatible with human rights as it provides for the annual adjustment to travel‑related allowances provided as a part of their conditions of service so a member neither gains nor loses financially when they are posted to a remote location or required to travel.

The remaining amendments to the Principal Determination do not change the underlying policies or benefits. As such, they do not engage 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.