EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Education assistance and reunion travel) Determination 2018 (No. 9)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Defence Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AIA Act). Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003. These instruments are also subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.

Chapter 8 of the Principal Determination sets out conditions of service for Australian Defence Force (ADF) members and their dependants.

Chapter 15 of the Principal Determination sets out the conditions of service for ADF members living and working on a long-term posting overseas.

This Determination has the following purposes.

• To make routine adjustments to education assistance. These are based on changes in the Consumer Price Index or advice from a contracted service provider.
• To extend the accommodation component of the education assistance benefit to a member whose child finishes secondary school at a considerably earlier age than their peers and will therefore be a child for at least their first full year of tertiary study. This amendment will mean that a member is no longer disadvantaged where the child completes secondary school and gains entry into university within Australia considerably earlier than their peers. Education assistance has not previously been provided to support tertiary students because they are usually adults or turning 18 years of age during their first year of tertiary education.
• To provide that overseas reunion travel must be by the most economical means and most direct route.
• To provide for additional reunion visits each year for a member who is posted to Cherbourg, and has a child who is a dependant enrolled at St John's College, Southsea, England.
• To provide that travel between the ports of Cherbourg and Portsmouth must be by ferry service. A member must use an alternative form of travel by the most economical means if the ferry service is unavailable.
• To provide that overnight accommodation will be available to a member, or a nominated escort accompanying a child, if all options of travel are temporarily unavailable.
• To expand the provision for education assistance for a member who has a child who is a dependant enrolled in year 13 at boarding school at St John's College, Southsea, England.
• To amend the benchmark schools for Cherbourg.

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

Section 2 provides that this instrument commences on 25 January 2018.

Section 3 provides that this instrument has authority under section 58B of the Defence Act 1903.

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 section in the Schedule concerned, and any other section in a Schedule to this instrument has effect according to its terms.

Schedule 1 amends the Defence Determination 2016/19, Conditions of service

Section 1 amends subsection 8.4.10.3 of the Principal Determination. This amendment increases the maximum hourly rate of reimbursement to a member for the cost of face-to-face tutoring for their child. The amendment changes this maximum rate from $96 to $100. This rate has increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2016 (3.3 per cent), rounding the underlying figure to the nearest dollar.

Section 2 substitutes the example table in subsection 8.4.11.5 of the Principal Determination which provides an example of how to calculate the reimbursement for web-based tutoring. The rates in this example reflect the rate changes made by sections 1 and 3 of this Determination. Sections 1 and 3 amended the maximum hourly rate of assistance for face-to-face tutoring and the maximum limit of assistance provided for web-based tutoring for a subject (the child has studied before) respectively.

Section 3 substitutes the table in subsection 8.4.11.6 of the Principal Determination which provides the figures used for calculating web-based tutoring payments. The rates have increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2016 (3.3 per cent), rounding the underlying figure to the nearest dollar.

Section 4 substitutes the table of subsection 8.4.14.3 of the Principal Determination. The amendments increase the maximum hourly rate of reimbursement for costs incurred by a member when their child with special needs requires additional tuition or therapy to assist in the transition to a new school. The amendment changes this maximum rate from $96 to $100. Section 4 also increases the limit on assistance with the costs of private assessment to develop an educational program for a child with special needs. This amendment changes this benefit from $714 to $737. These changes have increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2016 (3.3 per cent), rounding the underlying figures to the nearest dollar.

Section 5 substitutes subsection 8.4.14.5 of the Principal Determination. This amendment increases the maximum reimbursement for the cost of compulsory tuition fees from $26,659 to $27,542 a year. It also increases the member contribution from $349 to $361. These new rates are based on advice received from a contracted service provider.

Section 6 amends subsection 8.4.15.4 of the Principal Determination, which provides that the Chief of the Defence Force (CDF) may extend education assistance to a member for their child for an additional 14 weeks for each subject, capped at a maximum hourly rate. Section 6 increases the maximum rate from $96 to $100. This change is in line with an increase in the Education component of the Consumer Price Index for the 12 month period ending December 2016 (3.3 per cent), rounding the underlying figure to the nearest dollar.

Section 7 substitutes the table in subsection 8.4.21.1 of the Principal Determination. This amendment increases the maximum rates of reimbursement for compulsory tuition fees, accommodation for children who do not accompany a member to a posting location and a member's annual contribution rate.

The rate changes are as follows.

• Increase in the maximum annual compulsory tuition fee reimbursement from $26,659 to $27,542.

• Increase in the annual member contribution towards the cost of compulsory tuition fees from $349 to $361.

• Increase in the maximum reimbursement of board if accommodated in a boarding school or a commercial establishment from $23,640 to $24,865.

• Increase in the maximum reimbursement of board if privately accommodated from $14,181 to $15,766.

• Increase in the annual member contribution towards their child's boarding fees (if not their first year) from $2,988 to $3,033.

• Increase in the annual member contribution towards their child's boarding fees (if it is their first year) from $2,570 to $2,616.

These new rates are based on advice received from a contracted service provider.

Section 8 substitutes the amount set out in subsection 8.4.25.1 of the Principal Determination. This amendment increases the rate of reimbursement to members for accommodation costs for tertiary students not at the member's location of residence. The rate has increased from $360 to $363 a fortnight. The rate is based on 83 per cent of the Youth Allowance payable under the Social Security Act 1991, to an independent full-time student living away from home, rounded to the nearest dollar amount.

Schedule 2 amends the Defence Determination 2016/19, Conditions of service

Section 1 omits and substitutes section 15.6.2 of the Principal Determination, which provides which members the Part applies to. Full-time tertiary students are added to the list because specific tertiary students studying full-time in Australia may now be eligible for education assistance consequential upon this amending determination.

Section 2 omits and substitutes the table in subsection 15.6.10.3 of the Principal Determination, which lists the annual contribution rates that a member must pay towards compulsory tuition fees when their child attends school in their overseas posting location. The contribution rates are based on the typical cost of attending government schools in Australia. The rates are increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2016 (3.3 per cent), rounding the underlying figure to the nearest dollar.

Section 3 amends subsection 15.6.22A.5 of the Principal Determination, which provides the annual contribution a member must make towards their child's education for a member on a long-term posting to Cherbourg, France and has a child enrolled at St John's College, Southsea, England. This amendment changes the contribution from $370 to $382, increased in line with the Education component of the Consumer Price Index for the 12 month period ending December 2016 (3.3 per cent), rounding the underlying figure to the nearest dollar.

Section 4 omits and substitutes subsection 15.6.23.1 of the Principal Determination, which states the purpose of the Division. The purpose is to provide education assistance for a member posted overseas whose child remains in Australia to study. The defined terms 'dependant' and 'child' are reordered to be grammatically correct.

Section 5 omits and substitutes section 15.6.24 of the Principal Determination, which outlines the conditions that must be met to be eligible for education assistance. The following changes are made:

• The title of section 15.6.24 is amended to provide the section is about eligibility for a member's child attending primary or secondary school.
• A new section 15.6.24A is inserted into the Principal Determination. A member is now eligible for accommodation assistance if their child who is a dependant is enrolled full-time in tertiary study and turns 18 years of age on or after 1 December of the year after they complete secondary school. The basis of establishing a cut-off date of 1 December in any year is to ensure that the student can complete a normal full year academic program. The member is not eligible for assistance with tuition fees under the Division.

Section 6 omits and substitutes subsection 15.6.25.1 of the Principal Determination, which provides the annual maximum reimbursement or upfront payment and member contribution amounts for school tuition fees, boarding accommodation costs and costs for private boarding accommodation. A member whose child is a dependant, is enrolled full-time in tertiary study and does not turn 18 years of age before 1 December the year after they complete secondary school, may be eligible for assistance with accommodation costs. Specifically, the amendments enable accommodation costs charged by a tertiary institution or costs of private accommodation to be reimbursed or paid up-front.

Section 6 also makes an annual rate increase for tuition and accommodation rates of assistance and member contributions. The following two rate increases are in line with the Education component of the Consumer Price Index for the 12 month period ending December 2016 (3.3 per cent), rounding the underlying figure to the nearest dollar.

• Member contribution towards compulsory tuition fees for a primary student has increased from AUD 159 to AUD 164.
• Member contribution towards compulsory tuition fees for a secondary student has increased from AUD 370 to AUD 382.

The following six rate changes made by section 5 have been advised by a contracted service provider.

• For a member whose child lives at a boarding school, the member's accommodation contribution is increased from AUD 2,988 to AUD 3,033.
• For a member whose child lives at a boarding school for the first time, the member's accommodation contribution is increased from AUD 2,570 to AUD 2,616.
• For a member whose child lives in private accommodation, the member's accommodation contribution is increases from AUD 2,988 to AUD 3,033.
• The maximum reimbursement for compulsory tuition fees is increases from AUD 26,659 to AUD 27,542 a year.
• The maximum reimbursement for accommodation where a child boards at boarding school or a commercial boarding establishment has increased from AUD 23,640 to AUD 24,865 a year.
• The maximum reimbursement for accommodation where a child lives in private board and lodging has increased from AUD 14,181 to AUD 15,766 a year.

Section 7 omits subsection 15.6.25.2 of the Principal Determination, which provided a definition for "the cost incurred for accommodation prior to the posting". This was used in the table under subsection 15.6.25.1 to provide that if the member had already paid an amount for the child's accommodation between the start of the academic year and the start of the member's posting period, the amount counts towards the contribution the member must make. The provision is now included in the table under new subsection 15.6.25.1, consequential upon Schedule 2 section 6 of this amending Determination.

Section 8 omits and substitutes section 15.6.27 of the Principal Determination, which provided the period for which a member may be 'reimbursed' education costs. The following changes are made:

• The title is changed to 'period of education assistance' because the member may now be both reimbursed or have the Commonwealth pay upfront.
• The section provides that assistance ends for a tertiary student who turns 18 years of age.
• The section provided that education assistance ceases for a member posted overseas whose child studies in Australia if the member or other parent permanently returns to Australia. The provision was duplicated under section 15.6.29 of the Principal Determination, whereby the CDF may decide to continue the assistance under special circumstances. The wording under section 15.6.29 is moved to subsection 15.6.27.5.

Section 9 omits section 15.6.29 of the Principal Determination, which provided that a child is taken to live at home in Australia if the member or other parent returns to Australia and lives at the location where the child is studying and therefore not eligible for assistance. The section is omitted because the provision is now located under subsection 15.6.27.5 of the Principal Determination, consequential upon Schedule 2 section 8 of this Determination.

Schedule 3 amends the Defence Determination 2016/19, Conditions of service

Schedule 3 amends the provisions for overseas education assistance and reunion travel for a member posted to Cherbourg who has a child who is a dependant enrolled at boarding school at St John's College, Southsea, England. The Schedule also amends the benchmark schools for a member who is posted to Cherbourg.

• Section 1 inserts a new section 15.3.10A into the Principal Determination by specifying that overseas reunion or escort travel must be taken by the most economical means and direct route.

• Section 2 inserts a new subsection 15.3.12.1A into the Principal Determination to provide that the CDF may authorise additional reunion visits for a member posted to Cherbourg who has a child who is a dependant enrolled at boarding school at St John's College, Southsea, England. The current provision allows for up to four overseas reunion visits a year. St John's College has additional school holidays throughout the year and pupils are unable to reside at the boarding school during those holidays.
• Section 3 substitutes subsection 15.3.15B.6 of the Principal Determination, to provide that return travel between France and England must be by ferry, between the ports of Cherbourg and Portsmouth. New subsection 15.3.15B.7 has been inserted to provide an alternative form of travel by the most economical means, should travel by ferry be unavailable. New subsection 15.3.15B.8 has been inserted to provide that if all options of travel are unavailable, a member or nominated escort, accompanying a child, may be eligible for overnight accommodation until the earliest form of travel is possible.
• Section 4 amends subsection 15.6.22A.2 of the Principal Determination, to allow for education assistance for a member posted to Cherbourg who has a child who is a dependant enrolled at boarding school at St John's College to include enrolment up to year 13.
• Section 5 omits and substitutes the example in subsection 15.6.22A.2 of the Principal Determination, to correct a typographical error.
• Section 6 amends Annex 15.6.A of the Principal Determination, to remove the pre-school/ kindergarten listed for Cherbourg in France. The local preschool in Cherbourg is a public pre-school/ kindergarten that does not accrue any funding assistance. As a consequence, this school is not required in the list of benchmark schools. The benchmark primary school listed for Cherbourg has been renamed to L'ècole Gibert Zola, which was previously listed as a preschool/kindergarten. The benchmark secondary school has been amended to include Le Collège Bacilli – Charcot, which was previously listed as a primary school. Lycée Victor Grignard also remains a benchmark secondary school for Cherbourg.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Consultation

The Navy, Army, and Air Force, including the Submarine project team and the Defence Community Organisation were consulted in the development of this Determination. The rulemaker was satisfied that external consultation was not required.

Authority:  Section 58B of the
Defence Act 1903

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Determination, Conditions of Service Amendment (Education assistance and reunion travel) Determination 2018 (No. 9)

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Determination

This Determination has the following purposes.

• To extend the accommodation component of the education assistance benefit to a member whose child finishes secondary school at a considerably earlier age than their peers and will therefore be a child for at least their first full year of tertiary study. This amendment will mean that a member is no longer disadvantaged because where the child completes secondary school and gains entry into university within Australia considerably earlier than their peers. Education assistance has not previously been provided to support tertiary students because they are usually adults or turning 18 years of age during their first year of tertiary education.
• To provide that overseas reunion travel must be by the most economical means and most direct route.
• To provide for additional reunion visits each year for a member who is posted to Cherbourg, and has a child who is a dependant enrolled at St John's College, Southsea, England.
• To provide that travel between the ports of Cherbourg and Portsmouth must be by ferry service. A member must use an alternative form of travel by the most economical means if the ferry service is unavailable.
• To provide that overnight accommodation will be available to a member, or a nominated escort accompanying a child, if all options of travel are temporarily unavailable, until the earliest form of travel by the most economical means can be arranged.
• To expand the provision for education assistance for a member who has a child who is a dependant enrolled in year 13 at boarding school at St John's College, Southsea, England.
• To amend the benchmark schools for Cherbourg.

Human rights implications

The protection of a person's right to care for dependants

The protection of a person's right to care for dependants engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance to families, including their responsibility for the education and care of dependent children.

Legitimate objective: Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing assistance to not financially disadvantage a member if the member's child, who is a dependant, remains in Australia to study while the member is posted overseas.

Reasonable, necessary and proportionate: Assistance towards tuition fees and accommodation is provided to a member posted overseas if their child remains in Australia and attends either primary or secondary school. Education assistance has not previously been provided to support tertiary students because they are usually adults or turning 18 years of age. This Determination extends the accommodation assistance component to a member whose child finishes secondary school at a considerably earlier age than their peers and will therefore be a child for at least their first full year of tertiary study. The member is no longer disadvantaged because their advanced child excelled academically.

The benchmark school and education assistance provisions in this Determination advance the rights under Article 13 of the International Covenant on Economic, Social and Cultural Rights. Article 13 recognises the right of everyone to education.

Defence provides a range of benefits to members posted overseas to assist members and their families to not suffer a disadvantage because of the requirement for the member to live and work overseas. Benchmark schools are nominated to set the 'benchmark' for the amount of education assistance to be reimbursed to members for their children's education whilst posted overseas. This Determination provides benchmark schools for Cherbourg.

The protection of a child's right not to be separated from their parents

The protection of a child's right not to be separated from their parents engages Article 9 of the Convention of the Rights of the Child. Article 9 guarantees the widest possible protection for a child who is separated from one or both parents to maintain personal relations and direct contact on a regular basis.

Legitimate objective: Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing assistance to regularly reunite the member with family members who are unable to accompany the member to their posting location.

Reasonable, necessary and proportionate: This Determination ensures a child, who is unable to travel alone on a reunion visit, is able to be safely escorted to the posting location by a family member or an adult at the posting location chosen by the member. It allows a member to utilise their reunion travel entitlement for their child dependant at no financial detriment.

Conclusion

This Determination is compatible with human rights because it advances the protection of human rights.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions