EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment (Food allowance) Determination 2018 (No. 14)

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 3 of the Principal Determination sets out provisions dealing with salaries and bonuses for members of the Australian Defence Force (ADF).

Chapter 4 of the Principal Determination sets out provisions dealing with allowances and reimbursements for members of the Australian Defence Force (ADF).

Chapter 5 of the Principal Determination sets out provisions dealing with leave for members of the Australian Defence Force (ADF).

Chapter 7 of the Principal Determination sets out provisions dealing with housing and meals for members of the Australian Defence Force (ADF).

Chapter 8 of the Principal Determination sets out provisions dealing with members of the Australian Defence Force (ADF) and their dependants.

This Determination has the following purposes:

• It clarifies that all members, unless they meet an exemption condition, must pay a contribution towards the cost of eating a meal in a service mess.
• It clarifies that only members with dependants (unaccompanied) who "live out" are eligible for food allowance.
• It provides an exception for a member who is on medical absence from duty for more than one week. The exception allows the member to remain eligible for food allowance if the member remains in the posting location for the duration of the medical absence.
• It allows members who live in Members Choice accommodation while posted to a seagoing submarine to be eligible for submarine food allowance.

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

Section 2 is the commencement provision for the Determination and includes a table setting out the details of the commencement of sections of the Determination. Column 1 of the table sets out the provisions in numbered items, column 2 sets out the commencement and column 3 sets out date/details. Information in column 3 does not form part of the Act, so information can subsequently be inserted in the column (or edited) in a published version of the Determination.

This Determination commences on 5 April 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 items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

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

Section 1 substitutes Chapter 7 Part 9 Division 1 of the Principle Determination, which sets out when a member must pay a contribution for meals eaten in a service mess, and the rate the member must pay.

The structure of the division has been amended to clarify that all members, unless they meet one of the exemption criteria, must pay a contribution to eat a meal in a service mess. The amendments to this Division have been redrafted to provide the same benefits as provided under the Principal Determination, in a clearer and more concise manner.

• Section 7.9.3 sets the purpose of Chapter 7 Part 9 Division 1. The purpose of the division is to set out when a member must pay a contribution to eat a meal in a service mess and lists the rates the member must pay.
• Section 7.9.4 provides members meals at Commonwealth expense when they eat in a Service mess
• Section 7.9.5 provides when a member may elect to pay the casual meal charge. The casual meal charge is a contribution towards the cost of the meal. A member who elects to pay the casual meal charge pays for each meal eaten in a service mess. The section further specifies the rates which a member must pay. The rates vary depending on the meal period the member chooses to eat in the service mess.
• Section 7.9.6 provides when a member may elect to pay the fortnightly charge, instead of paying the casual meal charge.  The fortnightly meal charge is an alternative option for paying a contribution towards the cost of the meal.
• Section 7.9.7 provides the rate of the fortnightly meal charge. The section also provides the rate at which the fortnightly meal charge is reduced if the member is absent on leave, eligible for travelling allowance or living under field conditions or on a seagoing ship.
• Section 7.9.8 provides that if a members contribution changes as a result of the member being on leave without pay, the CDF may decide if a member was granted leave without pay for exceptional reasons. If this is the case the member is able to continue to pay for meals at the rate they were paying before they started leave without pay.

Section 2 substitutes Chapter 7 Part 9 Division 2 of the Principle Determination, which sets out that certain members who live out are eligible for food allowance to assist with additional food expenses. The structure of the Division has been amended to provide clarity relating to when a member is eligible for food allowance.  With the exception of sections 7.9.10 and 7.9.12, the amendments to this Division have been redrafted to provide the same benefits as provided under the Principal Determination, in a clearer and more concise manner.

• Section 7.9.9 sets out the purpose of Chapter 7 Part 9 Division 2. The purpose has been amended to clarify that the Division applies to a member with dependants (unaccompanied) who "lives out".
• Section 7.9.10 set out who is eligible for food allowance, and the fortnightly rate of allowance which is to be paid.
• Section 7.9.11 sets out when a member is not eligible for food allowance. Paragraph 7.9.11.c includes a new exception which allows a member to remain eligible for food allowance if the member remains in the posting location for the duration of a medical absence granted under Chapter 5 Part 3 of the Principal Determination.
• Section 7.9.12 sets out when a member posted to a seagoing submarine is eligible for   submarine food allowance, and the rates at which the allowance is paid. The name of the allowance has been amended to correctly reflect whom the allowance is payable to. The section has also been amended to include members who live in Members Choice accommodation while posted to a seagoing submarine as eligible for submarine food allowance.

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

Sections 1 to 5 and section 7 amend various sections of the Principle Determination to reflect changes to cross references. The cross references have changed as a result of the amendments made in Schedule 1 of this Determination.

Section 6 amends the table in subsection 7.4.41.1 of the Principal Determination, which sets out the special housing and meals assistance for members posted to a seagoing submarine. Item 4 of the table has been amended to replace the reference to transitional food allowance with submarine food allowance for member posted to a seagoing submarine. Transitional food allowance has been renamed submarine food allowance for member posted to a seagoing submarine under Schedule 1 of this Determination.

Sections 8 to 18 amend sections 8.3.10 to 8.3.20 of the Principal Determination, which set out administrative matters relating to becoming a member with dependants (unaccompanied). The tables within each section have been amended to clarify that a member who lives in is entitled to meals provided by the Commonwealth in service messes only.

Consultation

The Navy, Army and Air Force were consulted in the development of this Determination. The rulemaker was satisfied that further 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 (Food allowance) Determination 2018 (No. 14)

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 amends Defence Determination 2016/19, Conditions of service.

This Determination has the following purposes:

• It clarifies that all members, unless they meet an exemption condition, must pay to eat meals in a service mess.
• It clarifies that only members with dependants (unaccompanied) who "live out" are eligible for food allowance.
• It provides an exception for a member who is on medical absence from duty leave for more than one week. The exception allows the member to remain eligible for food allowance if the member remains in the posting location for the duration of the medical absence.
• It allows members who live in Members Choice accommodation while posted to a seagoing submarine to be eligible for submarine food allowance.

Human rights implications

Right to an adequate standard of living

The protection of a person's right to an adequate standard of living engages Article 1 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.

This Determination does not limit the right to an adequate standard of living. It provides additional benefits to members who are posted to a location, and their dependents do not accompany them. These members are categorised as a member with dependants (unaccompanied).

Food allowance

Legitimate objective: ADF members who live away from their dependants may incur additional food expenses as a result of being away from their dependants. This could cause an adverse effect on the member financially. A member who is on leave for longer than one week, this includes any period of medical absence, is not eligible to receive assistance with the cost of meals.

Reasonable, necessary and proportionate: Food allowance for members with dependants (unaccompanied) assists the member meet the additional food expenses that they incur while away from their dependants. This Determination provides that a member who is on a period of medical absence for longer than one week, and required to stay in the posting location, will remain eligible for food allowance. This will alleviate the financial burden on members who, due to medical reasons, are unable to travel to their home location while on a period of medical absence.

Submarine food allowance for members posted to a seagoing submarine

Legitimate objective: Members without dependants and members with dependants (unaccompanied) who are posted to a seagoing submarine and receive rent allowance are eligible for the payment of food allowance. If the member has chosen to live in Members Choice accommodation rather than receive rent allowance, they are not eligible for submarine food allowance.

Reasonable, necessary and proportionate: Submarine food allowance for members posted to a seagoing submarine assists members who do not have the ability to live on board. This Determination provides that a member who is eligible for Rent Allowance or has chosen to live in Members Choice accommodation will be eligible to receive submarine food allowance.

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