This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 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.
Chapter 15 of the Principal Determination sets out provisions dealing with living and working on long-term posting overseas for members of the Australian Defence Force (ADF).
This Determination has the following purposes.
- To provide assistance to a member to help minimise the risk to the personal safety of the member and their dependants while at high-risk posting locations overseas.
- To make some technical amendments to the Division that provides environmental assistance at the posting location overseas.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 11 July 2019.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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—Household help and snow clearing assistance amendments
Section 1 amends section 15.4.4 of the Principal Determination, which provides the contents of the Part. The title for Chapter 15 Part 4 Division 6 is amended as a consequence of the title change made to the Division by section 2 of this Determination.
Section 2 omits and substitutes Chapter 15 Part 4 Division 6 of the Principal Determination, which provided a member the reimbursement of costs paid for household help and snow clearing services at their overseas posting location. The new Division inserts a new benefit for members posted to locations that present a heightened risk to the member's and their dependants' personal safety. These risks are often caused by the socio-political environment at the location or the existence of a broad opposition and hostility towards Western culture. Members' social movement at these locations may be severely restricted.
Section 2 also remakes rules relating to household help and snow clearing that exists in the Principal Determination. The new rules do not reflect a change in the underlying policy, however technical amendments are made to improve readability and consistency.
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 provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.
Consultation
International Policy Division and Navy, Army and Air Force were consulted in making this Determination. The rule maker was satisfied that further external consultation was not required.
Authority: Section 58B of the
Defence Act 1903
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 provide assistance to a member to help minimise the risk to the personal safety of the member and their dependants while at high-risk posting locations overseas.
- To make some technical amendments to the Division that provides environmental assistance at the posting location overseas.
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 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.
Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing assistance when a member is disadvantaged financially due to the overseas location or as a direct result of their official duties. This Determination provides assistance to a member posted to locations where the personal safety of the member or their dependants may be at risk. It reimburses a member the costs of employing staff to help negate the risk to the member and their dependants' personal safety. The Determination ensures a member and their dependants enjoy an adequate standard of living and are not financially disadvantaged.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Louise Judith Memmolo, Acting Assistant Secretary People Policy and Employment Conditions
Overview
The Defence Determination 2019 (No. 1) was enacted to address the need for additional assistance and risk mitigation for Australian Defence Force (ADF) members posted to high-risk overseas locations, where personal safety is a significant concern due to socio-political environments and hostility towards Western culture. This Determination was made under section 58B of the Defence Act 1903 by the Parliament of Australia and is subject to disallowance. The policy objective of this Determination is to provide specific assistance to ADF members and their dependants to ensure their personal safety and to make technical amendments to existing provisions concerning environmental assistance at overseas posting locations. This includes the reimbursement of costs for employing household help and snow clearing services, especially in areas with heightened risks, thereby upholding the right to an adequate standard of living as recognised under international human rights instruments.
Scope and Application
The Defence Determination 2019 amends Defence Determination 2016/19 under section 58B of the Defence Act 1903, applying to members of the Australian Defence Force (ADF) who are posted overseas in high-risk locations. This Amendment aims to assist ADF members and their dependants by providing financial support to mitigate risks to their personal safety, particularly in socio-politically volatile environments where movement and living conditions may be severely restricted. The changes are technical in nature, improving readability and consistency in the rules governing environmental assistance and household help services at overseas postings. The Determination does not alter the fundamental policy but ensures that the provisions are legally sound and operationally effective. It also provides mechanisms for appeal and redress for adverse decisions. The Determination applies nationally and is subject to disallowance under the Legislation Act 2003 and interpretation principles in the Acts Interpretation Act 1901. The human rights implications are considered under the International Covenant on Economic, Social and Cultural Rights, particularly in relation to the right to an adequate standard of living, ensuring ADF members and their families are not financially disadvantaged due to their overseas postings.
Key Provisions
This Determination, amending Defence Determination 2016/19, introduces specific provisions to aid Australian Defence Force (ADF) members posted to high-risk overseas locations (sections 1 and 2). It commences on 11 July 2019 and amends the Principal Determination under section 58B of the Defence Act 1903. The primary amendments include changes to the environmental assistance provisions, with a focus on providing assistance to mitigate personal safety risks for members and their dependants in high-risk posting locations (section 4). These risks often arise from socio-political environments or opposition to Western culture.
The key operative sections of this Determination focus on amending the reimbursement policies for household help and snow clearing services (Schedule 1, Section 1). Specifically, section 15.4.4 of the Principal Determination is amended to reflect the new benefits provided under this Determination. The new Division introduces a benefit aimed at reducing the personal safety risks faced by members and their dependants in high-risk overseas locations. Additionally, the rules governing household help and snow clearing services are updated for readability and consistency, although the underlying policy remains unchanged. The criteria for exercising discretions under the amended Principal Determination are also detailed, and adverse decisions may be subject to inquiry through the ADF's redress of grievance system or complaint to the Defence Force Ombudsman.
This Determination imposes several obligations on ADF members and their dependants. Members posted to high-risk locations are eligible for reimbursement of costs associated with employing household help and clearing snow, which helps to minimise personal safety risks. The new rules provide clear guidelines for the provision of these services, ensuring they are provided in a manner that meets the needs of the members and their families. The Determination also outlines the processes for making inquiries or complaints regarding adverse decisions related to the assistance provided. Furthermore, it mandates that the Determination is compatible with human rights and advances the protection of human rights, specifically the right to an adequate standard of living as recognised under international law.
Breach of the provisions in this Determination may lead to various civil and administrative consequences. Adverse decisions regarding the assistance provided may be subject to inquiry under the ADF's redress of grievance system, as outlined in Part 7 of the Defence Regulation 2016. Additionally, members or their dependants may lodge a complaint with the Defence Force Ombudsman. While the Determination does not explicitly outline criminal or financial penalties for non-compliance, the processes for addressing grievances and complaints are established to ensure that any breaches are appropriately addressed. The overall focus of the Determination is on providing necessary support to ADF members and their families in high-risk environments, ensuring their safety and well-being.