Defence Determination, Conditions of service Amendment (Motor vehicle removals) Determination 2022 (No. 3)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment (Motor vehicle removals) Determination 2022 (No. 3)

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 (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.

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 obligation 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 update provisions relating to removal of motor vehicles when a member has to move to a new posting location. The amendments provide greater flexibility for members to have a vehicle moved by freight and provides clarity to the benefits a member may receive when they drive to their posting location.

Operational Details

Details of the operation of the Determination are provided at annex A.

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 and Air Force, the Directorate of Relocations and Housing in the Security and Estate Group and Toll Transitions, Defence’s service provider.

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

Annex A

Defence Determination, Conditions of service Amendment (Motor vehicle removals) Determination 2022 (No. 3)

Operational details

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

Section 2 provides that the Determination commences on 4 April 2022.

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 Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.

Schedule 1—Removals and vehicle allowance amendments

Section 1 inserts Chapter 6 Part 3 into the Principal Determination. The new Part provides for travel benefits to assist the member with a removal. The Part remakes the rules in subsection 9.6.15.4 of the Principal Determination. Specifically, section 1 provides the following:

• Section 6.3.1 describes the purpose of the Part.
• Section 6.3.2 identifies who the Part applies to; that being a person eligible for a removal under Chapter 6 Part 5.
• Section 6.3.3 provides a member with vehicle allowance to assist a member to drive from their posting location to their old posting location and back again for the purpose of supervising the uplift of their furniture and effects or to accompany their dependants to the member’s posting location. This applies if the member has already commenced duty in their posting location before their removal has been effected.
• Section 6.3.4 provides a member with vehicle allowance to assist a member to drive from their posting location to their new posting location and back again for the purpose of supervising the unpacking of their furniture and effects. This applies if the member has not commenced duty in their new posting location before their removal has been effected.

Section 2 inserts a new Part after section 6.5.87. The new Part replaces benefits provided in Chapter 6 Part 5 Division 5 and details benefits available to a member relating to the removal of vehicles, including the removal of towable items and associated travel benefits. Specifically, the Part provides the following:

• Division 1 provides general provisions that relate to the Part.
• Section 6.5A.1 provides the purpose of the Part.
• Section 6.5A.2 provides definitions that apply in the Part. Specifically, it defines “recreation or hobby vehicle” by way of reference to section 6.5A.3, and “towable item”.
• Section 6.5A.3 defines a “recreation and hobby vehicle” for the purpose of the Part. This section replaces subsection 6.5.43 of the Principal Determination, which is being removed as a consequence of this Determination.
• Section 6.5A.4 identifies who the Part applies to; that being a member who is eligible for a removal under Chapter 6 Part 5 of the Principal Determination.
• Section 6.5A.5 specifies how a distance is to be measured in this Part. This section replaces subsection 9.6.16.2 of the Principal Determination, which is being removed as a consequence of this Determination.
• Division 2 provides a member with benefits for vehicle removal assistance. This includes the transportation of the vehicle or the payment of vehicle allowance for driving the vehicle, and associated travel benefits. This Division replaces section 6.5.40 of the Principal Determination, which is being removed as a consequence of this Determination.
• Section 6.5A.6 provides the purpose of the Division.
• Section 6.5A.7 specifies the characteristics of a vehicle that is not covered by the Division.
• Section 6.5A.8 provides the general eligibility criteria for a member to be eligible for vehicle removal assistance. Generally, a member is eligible for the removal of 2 vehicles if the member is eligible for vehicle removal assistance under section 6.5A.9 for a vehicle that is to be driven, or under section 6.5A.10 for a vehicle to be transported. The member may be eligible for the removal of additional vehicles during the COVID-19 pandemic if specific criteria are satisfied. Under this section, the member is eligible for benefits in relation to how each vehicle is being removed. Different benefits may be payable for each vehicle.
• Section 6.5A.9 specifies the criteria that must be satisfied for a member to be eligible for vehicle removal assistance for a vehicle being driven.
• Section 6.5A.10 specifies the criteria that must be satisfied for a member to be eligible for vehicle removal assistance for a vehicle being transported, reflecting the requirements of paragraph 6.5.40.4.d and section 6.5.40A of the Principal Determination. The new section does not include the distance requirements currently in subparagraph 6.5.40.4.d.iv. This reflects a change in policy to provide greater flexibility for members to be able to have their vehicle removed by transportation.
• Section 6.5A.11 specifies the rate of vehicle removal assistance, which is a combination of either the vehicle allowance or the cost of transporting the vehicle and travel allowance. If the vehicle is being driven, different rates for vehicle allowance are payable for the first and second vehicle. The second vehicle does not attract the additional payment under section 9.6.26 of the Principal Determination.
• Section 6.5A.12 limits the benefits provided under this Division. The limits are different if a vehicle is driven or the vehicle is transported. If the vehicle is being driven, the limit only applies in limited circumstances, specifically in relation to journeys by car that are more than 1288 km (or less if travelling by a motor bike or motor scooter). If the vehicle is being transported, the limit only applies in limited circumstances, specifically in relation to journeys by car that are less than 1288 km (or less if travelling by a motor bike or motor scooter). In this case, the vehicle removal allowance is limited to the allowance that would have been payable had the member and their dependants driven the vehicle. This section promotes the policy that the preferred option for removing a vehicle is by driving it, and for longer distances by transporting it.
• Section 6.5A.13 provides additional vehicle removal assistance if the member incurs expenses for the collection or delivery of a vehicle being transported. This section replaces section 6.5.44 of the Principal Determination, which is being removed as a consequence of this Determination.
• Section 6.5A.14 provides additional vehicle removal assistance if the delivery of a transported vehicle is delayed. Additional vehicle assistance is in the form of the hire of a vehicle for the period between the member arriving at the posting location and the delivery of their vehicle. This section replaces section 6.5.44A of the Principal Determination, which is being removed as a consequence of this Determination.
• Division 3 provides a member benefits for the removal of towable items in connection with a removal.
• Section 6.5A.15 provides the purpose of the Division.
• Section 6.5A.16 provides for the removal of up to 2 towable items. This is limited to include only one recreation or hobby vehicle. The removal benefit for the towable item is either the transportation of the item, or if the towable item is to be towed, additional travel time. If the member and their partner are both members of the ADF, only 2 towable items can be removed. This section replaces section 6.5.41 and section 6.5.43 of the Principal Determination, which are being removed as a consequence of this Determination.
• Section 6.5A.17 provides for the removal of towable items during the COVID-19 pandemic. The section provides for the removal of additional towable items that the member would have towed had they driven their vehicle. This section replaces section 6.5.41B of the Principal Determination, which is being removed as a consequence of this Determination.
• Section 6.5A.18 specifies when a member is eligible to have a towable item transported. This includes when the member is eligible to have the vehicle that tows the towable item transported, or if the vehicle that would have towed the towable item could have been transported but the member chooses to drive the vehicle. This section replaces section 6.5.42 of the Principal Determination, which is being removed as a consequence of this Determination.
• Division 4 provides a member with benefits for the storage of vehicles and towable items.
• Section 6.5A.19 provides a storage benefit to members categorised as a member without dependants, or a member with dependants (unaccompanied), who are deployed for 6 months or longer. Instead of receiving a storage benefit, the member may choose to store their vehicle or towable item privately, in which case the member is eligible for vehicle allowance to drive the vehicle to the place of storage. The vehicle allowance is capped at the cost of storing the vehicle for the duration of the deployment. This section replaces subsection 6.5.53.2 and references to the storage of a vehicle in table item 6 in subsection 6.5.54.1 of the Principal Determination, which are being removed as a consequence of this Determination.
• Section 6.5A.20 provides for the storage of a vehicle that has been removed under section 6.5A.8 if the member has arrived in their new posting location and is required to complete a period of isolation or quarantine. This section replaces section 6.5.44B of the Principal Determination, which is being removed as a consequence of this Determination.

Section 3 inserts Chapter 9 Part 5 Division 4 after section 9.5.48. The Division provides travel benefits for member on removal, replacing Chapter 9 Part 6 Division 3 of the Principal Determination, which is being removed as a consequence of this Determination. The new section provide greater detail into the level of benefits payable to a member for travel during a removal. Specifically, the Division provides the following:

• Division 4 provides travel allowances for members who are eligible for a removal under Chapter 6 Part 5 of the Principal Determination. Travel allowances provided in this division are a part of vehicle removal assistance, provided in Chapter 6 Part 5A, inserted by section 2 of this Schedule.
• Section 9.5.49 identifies who this Division applies to; that being a member eligible for a removal under Chapter 6 Part 5 of the Principal Determination.
• Section 9.5.50 defines “person” for the purpose of the Division to include a member or their dependant. The section also defines “travel allowance” by reference to section 9.5.51.
• Section 9.5.51 defines “travel allowance” as the sum of various components the member is eligible for; this includes, accommodation, meals, incidentals and door-to-door travel costs.
• Section 9.5.52 specifies how a distance is to be measured in this Part.
• Section 9.5.53 provides eligibility for the accommodation component of travel allowance for a person who is required to have an overnight stay during their allowable travel time. The amount of the allowance is calculated by reference to the table in Part 1 of Annex 9.5.A and is based on the assumption that 3 people will occupy a room. For every room to be occupied, the full benefit is paid. A supplementary rate is paid for the 2nd and 3rd person occupying the room. This rate is a percentage of the accommodation rate, which depends on the age of the occupant.
• Section 9.5.54 provides eligibility for the meals component of travel allowance or travel allowance for a person who is travelling in connection with a removal over a meal period. The allowance is only payable if the person does not drive and is not a passenger is a vehicle and is charged a fee for a meal provided by the carrier, or drive over specified distance. That distance is dependant on whether the vehicle is towing an item. The amount of the allowance is calculated by reference to item 2 of the table in Part 4 of Annex 9.5.A. If the person is less than 10 years old, only 50% of the rate is payable.
• Section 9.5.55 provides eligibility for the incidentals component of travel allowance for a member for each day or part day of their allowable travel time if they are eligible for a removal under Chapter 6 Part 5. Incidentals are only payable if the member travels more than 480km, or a lesser distance if towing an item. Incidentals are not payable to a person who is not a member. The rate of incidentals is specified in Annex 9.5.A.
• Section 9.5.56 provides eligibility for the door-to-door travel component of travel allowance for a person who is travelling in connection with a member’s removal and the person is flying.

Schedule 2—Consequential amendments

Section 1 omits Chapter 6 Part 5 Division 5 of the Principal Determination which sets out the extend provisions relating to vehicle removals. The benefits provided by this section are remade by section 1 and section 2 of Schedule 1.

Section 2 amends section 6.5.53 of the Principal Determination which provides storage benefits for members with dependants (unaccompanied). The amendment omits paragraph 6.5.53.2.b to remove reference to the storage of vehicles. This is as a consequence of amendments made by section 2 of Schedule 1.

Section 3 amends section 6.5.54 of the Principal Determination which provides storage benefits for members without dependants. The amendment omits and substitutes item 6 of the table in subsection 6.5.54.1 to remove reference to the storage of vehicles. This is as a consequence of amendments made by section 2 of Schedule 1.

Section 4 amends section 6.5.79 of the Principal Determination which provides for the removal of vehicles. The amendment updates a cross reference in subsection 6.5.79.5

Section 5 amends section 9.0.3 of the Principal Determination which provides definitions used throughout Chapter 9. A definition for ‘allowable travel time’ is inserted into the table. The definition is used in Parts 5 and 6 of the Chapter.

 Section 6 omits and substitutes the table in Annex 9.5.A Part 1 of the Principal Determination which provides rates for accommodation. The amendment inserts item numbers for ease of reference.

Section 7 omits and substitutes the table in Annex 9.5.A Part 4 of the Principal Determination which provides rates of meals and incidental allowances. The amendment inserts item numbers for ease of reference.

Section 8 amends section 9.6.5 of the Principal Determination which specifies who Chapter 9 Part 6 of the Principal Determination applies to. The amendment updates the cross reference in item 2.

Section 9 amends section 9.6.7 of the Principal Determination which provides definitions used in Chapter 9 Part 6. The entry for ‘allowable travel time’ is omitted, having been remade by section 5 of this Schedule.

Section 10 omits Chapter 9 Part 6 Division 3 of the Principal Determination which provides travel benefits on removal. Benefits provided under this Division have been remade by Schedule 1.

Section 11 omits and substitutes subsection 14.3.16.4 of the Principal Determination which provides benefits for vehicle allowance by way of cross reference. The subsection is remade to update the cross reference as a consequence of changes made by Schedule 1 and to improve the readability of the rule.

Annex B

 Defence Determination, Conditions of service Amendment (Motor vehicle removals) Determination 2022 (No. 3)

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 update provisions relating to removal of motor vehicles when a member has to move to a new posting location. The amendments provide greater flexibility of for members to have a vehicle moved by freight and provides clarity to the benefits a member may receive when they drive to their posting location.

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.

Assessment of compatibility

This Determination is compatible with human rights in that it provides members which assistance with the removal of their vehicles to their new posting location. This coincides with benefits for moving the member and their families to the new posting location. These benefits are provided as a part of a member’s conditions of service in recognition of their requirement to move homes for Service reasons.

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.