EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Miscellaneous) Determination 2018 (No. 12)

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.

This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).

• Chapter 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
• Chapter 2 sets out provisions dealing with joining and leaving the ADF.
• Chapter 5 sets out provisions dealing with leave.
• Chapter 7 sets out provisions dealing with housing and meals.
• Chapter 9 sets out provisions dealing with travel costs.
• Chapter 13 sets out provisions dealing with short-term duty overseas.
• Chapter 15 sets out provisions dealing with living and working on long-term posting overseas.
• Chapter 16 sets out provisions dealing with overseas hardship locations.

This Determination has the following purposes.

• It amends the funeral provision for when a member or dependant dies while on short-term duty overseas.
• It amends a utilities provision to clarify when a member who lives in is required to pay a fortnightly utilities contribution.
• It amends the definitions of 'close relative' in the provisions relating to compassionate leave in Australia and travel for compassionate reasons overseas.
• It amends hardship location provisions to clarify that criteria provided under section 16.1.9 are to be considered when making a decision.
• It amends references to the Defence Health Manual and the Military Personnel Policy Manual.
• It amends a number of typographical errors.

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

Section 2 provides that this instrument commences on 8 March 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 the Principal Determination

Section 1 amends subsection 1.6.1.3 of the Principal Determination, which provides the treatment of a benefit that a member is eligible for when the member's adult dependant is eligible for a similar benefit. The subsection is being amended to remove two examples which provide the same information in different ways. These examples are not legislative in nature and the removal does not affect any members.

Section 2 amends paragraph 2.3.22.1.c of the Principal Determination, which provides an eligibility criteria for the payment of a special benefit. The paragraph is being amended to update a reference to the Military Personnel Policy Manual (the manual). The manual sets out the process for identifying a member for transfer from the Permanent Forces to the Reserves for specified workforce planning reasons. Part 10, Chapter 4 of the manual is being incorporated by reference as at the date of its publication. The manual is available at http://www.defence.gov.au/PayAndConditions.

Section 3 omits section 5.1.3 from the Principal Determination, which provided a summary of leave types that are provided in Chapter 5 of the Principal Determination. This section is not legislative in nature and the removal does not affect any member's leave entitlements.

Sections 4, 5, 7, and 8 amend sections 5.3.5 and 5.3.8 of the Principal Determination, which provide medical absence provisions. These sections are being amended to remove administrative matters which have no legal requirement to be determined. These matters will be provided in the form of guidance on the 'Defence Pay and Conditions' website at http://www.defence.gov.au/PayAndConditions/.

Sections 10 and 11 amend section 5.3.10 of the Principal Determination, which provides maternity leave provisions. The section is being amended to reference the Defence Health Manual (DHM) which provides additional information to assist members in complying with the rules set out in the Principal Determination. The DHM is being incorporated by reference as at the date of its publication. The DHM is available to all members on the internal Defence intranet at http://intranet.defence.gov.au/home/documents/adfdocs/dhm/dhm.htm.

Sections 6, 9, 13, 17 and 22 amend various sections in the Principal Determination to amend minor typographical errors.

Section 12 amends section 5.9.9 of the Principal Determination, which provide definitions for the purpose of compassionate leave. The definition of 'close relative' provides that a member's parent, brother, sister, child, dependant or spouse can be a close relative for compassionate leave. A member's partner is being included to enable them to be a close relative.

Section 14 amends subsection 7.10.9.3 of the Principal Determination, which provides that a member who lives in and does not pay a contribution for the living-in accommodation is not required to pay a contribution for utilities. This subsection has a number of exceptions to this rule where any member who an exception applies, is required to make a utilities contribution. The subsection is being amended to remove the exceptions and to create a new rule which sets out when a member is required to make a utilities contribution when they meet one of the specified conditions.  

Section 15 amends section 9.2.15 of the Principal Determination, which provides the benefits available to members on posting within Australia when they travel by air. Table item 2 of the table provides the benefits for members who travel by air as the most economical means without any dependants. Table item 2 paragraph b is being amended to remove reference that the member is eligible for reasonable costs of accommodation and meals for any dependants.

Section 16 substitutes section 13.2.15 of the Principal Determination, which provides the funeral costs if a member or dependant dies while on short-term duty overseas. Section 13.2.15 is being amended to provide that if a member or dependant dies while on short-term duty overseas the provisions for members or dependants who die while on long-term overseas posting will apply.

Section 18 amends subsection 15.1.2.3 of the Principal Determination, which provides which provisions in Chapter 15 apply to members who have been granted part-time leave without pay while they are on long-term duty overseas. This subsection is being amended to reflect changes to funeral provisions made by Defence Determination (Funeral costs – amendment) 2018 (No. 4).

Sections 19, 20 and 21 amend section 15.3.31 of the Principal Determination, which provides definitions for the purpose of travel for compassionate reasons. The definition of 'close relative' provides which people who are not accompanying the member on a long-term posting are considered to be a close relative for compassionate travel.

• Section 18 amends paragraph a. of the definition of 'close relative' which provides that a member's parent, brother, sister, child, dependant or spouse can be a close relative for compassionate leave. A member's partner is being included to enable them to be a 'close relative'.
• Section 19 amends paragraph b. of the definition of 'close relative', which previously provided the parent or child of the member's spouse as a close relative. This paragraph has been amended to include a brother or sister of the member's spouse as a 'close relative'. The paragraph now also relates to a member's partner, this was previously provided under paragraph c which has been omitted by section 19 of this Determination. This paragraph is being amended to reflect changes to compassionate travel within Australia made by Defence Determination (Compassionate travel – amendment) 2018 (No. 7).
• Section 20 omits paragraph c. of the definition of 'close relative', which previously provided the parent or child of the member's partner as a close relative. The provisions relating to a member's partner has been included in paragraph b. by section 18 of this Determination.

Sections 22, 24 and 25 amend sections 16.1.8, 16.2.4 and 16.2A.4 of the Principal Determination, which provide for provisional hardship locations and the payment of hardship allowance. These sections are being amended to clarify that when a decision is being made under the sections that the criteria set out in section 16.1.19 of the Principal Determination apply.

Consultation

This Determination makes amendments that reduce ambiguity, corrects errors and updates references. The changes are technical in nature and 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 (Funerals, utilities, compassionate travel and hardship) Determination 2018 (No. 12)

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.

• It amends the funeral provision for when a member or dependant dies while on short-term duty overseas.
• It amends a utilities provision to clarify when a member who lives in is required to pay a fortnightly utilities contribution.
• It amends the definitions of 'close relative' in the provisions relating to compassionate leave in Australia and travel for compassionate reasons overseas.
• It amends hardship location provisions to clarify that criteria provided under section 16.1.9 are to be considered when making a decision.
• It amends references to the Defence Health Manual and the Military Personnel Policy Manual.
• It amends a number of typographical errors.

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 guarantees just and favourable conditions of work, including remuneration, safe and healthy conditions, equal opportunity and reasonable limitations.

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.

This Determination makes amendments to the provisions relating to funeral costs for members and dependants who die overseas while on short-term duty overseas. This change ensures that the provisions that apply are those used for members and dependants who die while on long-term overseas posting and it removes any ambiguity and misalignment of benefits.

This Determination expands the definition of 'close relative' for compassionate travel overseas to include the brother or sister of a member's spouse or partner. This change ensures that the brother or sister of a member's spouse or partner may travel at Commonwealth expense to visit the spouse or partner when they are seriously ill overseas.

This Determination protects this right by reducing ambiguity and correcting errors to assist people to better understand and apply benefits.

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