Defence Determination, Conditions of service Amendment (Omnibus) Determination 2019 (No. 34)

Defence Determination, Conditions of service Amendment (Omnibus) Determination 2019 (No. 34)

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 (AI 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 AI Act.

The Determination makes reference to the AI Act. This instrument is incorporated into the Determination as in force from time to time. Section 1.2.5A of the Principal Determination specifies that a reference to an Act of Parliament or a legislative instrument to which section 14(3) of the AI Act applies are incorporated as in force from time to time, unless otherwise stated.

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

• Chapter 1 of the Principal Determination sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
• Chapter 2 of the Principal Determination sets out provisions dealing with joining and leaving the ADF.
• Chapter 4 of the Principal Determination sets out provisions dealing with allowances and reimbursements.
• Chapter 6 of the Principal Determination sets out provisions dealing with relocations on posting in Australia.
• Chapter 7 of the Principal Determination sets out provisions dealing with housing and meals.
• Chapter 8 of the Principal Determination sets out provisions dealing with members and their dependants.
• Chapter 9 of the Principal Determination sets out provisions dealing with travel costs in Australia.
• Chapter 15 of the Principal Determination sets out provisions dealing with living and working on long-term posting overseas.
• Chapter 16 of the Principal Determination sets out provisions dealing with overseas hardship locations.
• Chapter 17 of the Principal Determination sets out provisions dealing with warlike and non-warlike deployments.

The purpose of this Determination is to provide the following:

• To make technical amendments to provisions relating to allowances for travel, meals and accommodation for an applicant who applies to join the ADF and contemporising the drafting style.
• To provide a basic level of benefits to members if the Defence establishment on which they are living is evacuated in response to an emergency.
• To provide what happens to a member's overseas living allowances when they temporarily leave a long-term posting location overseas or when a member’s dependants remain in the location after the member has permanently left.
• To provide meal and clothing allowances for a member on long-term posting overseas.
• To update the overseas conditions of service to include benchmark schools and adjusting the hardship locations benefits for the Nation of Brunei, the Abode of Peace (Brunei) and Pisa, Italy as a consequence the anticipated posting of members being posted to these locations with their dependants.
• To include Operation STEADFAST as a new operation for the payment of deployment allowance and provide a transitional provision for the payment of deployment allowance for members deployed on the operation.

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

Section 2 provides this Determination commences on 12 December 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—Travel accommodation and meal benefits for applicants amendments

Section 1 omits and substitutes section 2.1.3 of the Principal Determination which provides the purpose of the Division and has been revised for clarity while the intent remains the same.

Section 2 omits and substitutes section 2.1.4 of the Principal Determination which provides the following.

• It provides the eligibility conditions for an applicant to be eligible for assistance with travel, accommodation and meal expenses.
• It provides that an applicant must be requested to, and attend, a Defence Force Recruiting Centre and travel from their normal place of residence to that Centre. The applicant must also live outside of an area serviced by the metropolitan transport system of the city or town where the Defence Force Recruiting Centre is located, to be eligible for assistance. A table provides the conditions for the amount an applicant is eligible for if they travel by private vehicle or public transport by a regional transport provider, including air travel, to attend the Defence Force Recruiting Centre.
• It provides the conditions for an applicant to be eligible for an allowance for accommodation and meals, together with the conditions that set out the amount to be paid.
• The section also provides that an applicant is eligible for meal allowance if a period of travel does not extend overnight, and an applicant is not eligible to claim meal allowance if a meal is provided by the Commonwealth.

Section 3 omits section 4.5.8 from the Principal Determination which provided the eligibility conditions for meal allowance for a country applicant applying to the ADF. The conditions from the omitted section have been incorporated by section 2 of this Schedule into section 2.1.4 which provides the travel, accommodation and meal benefits for certain applicants.

Schedule 2—ADF Retention – Removals, housing and travel amendments

Section 1 omits section 1.3.28 of the Principal Determination which provided a definition of 'home port – for a member'. A member's home port was a coastal town in the state the member was recruited. It was used to provide removal, housing and travel benefit options for a member and their dependants when the member is posted to a seagoing ship or seagoing submarine. This Determination provides a more flexible option where the dependants have the choice to relocate to anywhere in Australia. Removal, travel and housing benefits may be provided for the duration of the member's posting to the seagoing ship or seagoing submarine. It is therefore no longer necessary to define the term 'home port – for a member'.

Section 2 omits section 1.3.29 of the Principal Determination which provided the definition of 'home port – for a ship'. Section 4 of this Determination changes the term to 'Ship's home port' and the definition is reworded to be inclusive of both seagoing ships and seagoing submarines.

Section 3 omits and substitutes section 1.3.64 of the Principal Determination which provides the definition of 'refitting port'. The definition makes reference to a ship's home port. It is reworded to be inclusive of both seagoing ships and seagoing submarines.

Section 4 inserts section 1.3.73A into the Principal Determination which provides the definition of 'Ship's home port'. The definition was formerly 'Home port – for a ship' under section 1.3.29 of the Principal Determination, omitted by section 2 of this Schedule. The term is changed to 'Ship's home port' and the definition is reworded to be inclusive of both seagoing ships and seagoing submarines.

Sections 5 and 6 amend section 6.5.20 of the Principal Determination which provides a removal benefit for a member's dependants if they choose to relocate to another location when the member is posted to a remote location. The section formerly applied only to a member of the Army or Air Force. Sections 5 and 6 remove the references to Army and Air Force so that the section also applies to members of the Navy.

Section 7 omits and substitutes section 6.5.21 of the Principal Determination which provided a removal benefit for a Navy member's dependants if they choose to relocate to another location when the member is posted to a remote location. The benefit is now provided under section 6.5.20 of the Principal Determination, consequential upon sections 5 and 6 of this Schedule. The former section 6.5.21 is substituted with one that provides removal benefits for a member and their dependants if the member is posted to a seagoing ship or seagoing submarine. This used to be provided under section 6.5.36 of the Principal Determination but has been moved to Chapter 6 Part 5 Division 3 which provides removal benefits to a personal location (location chosen by member's dependants). The removal benefit was limited to either the member's posting location or the member's home port. At the Chief of the Defence Force's discretion, the member now has the option to remove their dependants to any location of their choice within Australia. The discretion enables a member's dependants to move to, and live at, a location that best suits their family needs that is consistent with the policy intent.

Section 8 omits and substitutes section 6.5.36 of the Principal Determination which provided a member's removal benefits if posted to a seagoing ship or Navy aircraft squadron. References to 'Navy aircraft squadron' have been removed because these members are now posted to the seagoing ship and are therefore covered without mention of 'Navy aircraft squadron'. Additionally, members posted to a seagoing submarine are now eligible for the benefit. The former section also provided removal benefit options for the member's dependants. These are relocated to section 6.5.21 of the Principal Determination, consequential upon section 7 of this Schedule.

Sections 9, 10, 11, 13, 14, 23 to 24 and 27 remove references to a member's home port from the Principal Determination. The definition 'Home port – for a member' is omitted by section 1 of this Schedule. The term was used to provide removal, housing and travel benefits for a member posted to seagoing vessel. These members now have the option of relocating their dependants to any location in Australia and not just the member's home port, consequential upon section 7 of this Schedule.

Sections 12, 16, 21, 22, 26 and 28 remove references to 'Navy aircraft squadron' from the Principal Determination in locations where the term proceeds 'member posted to a seagoing ship'. In the past Navy aircraft squadron members who performed duty on a seagoing ship remained posted to their Navy aircraft squadron. 'Navy aircraft squadron' is omitted because these members are now posted to the seagoing ship or seagoing submarine and are therefore covered without mention of 'Navy aircraft squadron'. Where appropriate, the term is substituted with 'seagoing submarine' because these members are also eligible for the benefit.

Section 15 omits and substitutes section 6.5.71 of the Principal Determination which provided a member who becomes a member with dependant a removal benefit to the member's next posting location. These members now have the option of relocating their dependants to any location in Australia and not just the member's home port, consequential upon section 7 of this Schedule. The section is also restructured to improve the clarity of the determination. The policy intent is unchanged.

Section 17 omits and substitutes subsection 7.6.29.1 of the Principal Determination which provided circumstances in which a member with dependants (unaccompanied) is not eligible for a Service residence. One of the circumstances was when the dependants move to a personal location (location chosen by member's dependants) away from living with the member. The change clarifies the policy intent which is to not provide housing assistance if the member is not granted a removal to the personal location at Commonwealth expense. The subsection is also restructured Improve the clarity of the determination.

Section 18 inserts section 7.6.64 into the Principal Determination which specifies when eligibility for a Service residence ceases for a member whose dependants occupy a Service residence at a personal location while the member is posted to a seagoing ship or seagoing submarine. The new section provides that eligibility at the personal location ends when the member is posted for more than six months to a location that is not a seagoing ship or seagoing submarine. A Chief of the Defence Force (CDF) discretion is included to extend housing assistance in situations where the dependants are unable to vacate a Service residence due to no fault of their own.

Section 19 inserts table item 9 into the table of subsection 7.8.5.1 of the Principal Determination which provides the period of eligibility for rent allowance for a member whose dependants occupy a rental property at a personal location while the member is posted to a seagoing ship or seagoing submarine. The new table item provides that eligibility begins on the first day the dependants cannot find suitable Defence housing (service residence) at the personal location and ends when the member is posted for more than six months to a location that is not a seagoing ship or seagoing submarine.

Section 20 omits and substitutes paragraph 8.3.6.2.b of the Principal Determination which provided a member may be categorised as a member with dependants (unaccompanied) if they are posted to a new posting location for more than six months. There are a number of exceptions to this rule. The paragraph has been rewritten to write the exceptions into the rule and to provide an additional exception. The new exception provides that the posting location does not have to be a new posting location if the member is granted a removal to a personal location when posted to a seagoing ship or seagoing submarine.

Section 25 omits and substitutes section 9.3.9 of the Principal Determination which provided a travel benefit for a member's new spouse or partner to travel to the member's posting location. The section is restructured to provide the following:

• Remove reference to a 'member's home port' as a consequence of section 1 of this Schedule.
• Remove reference to 'Navy aircraft squadron' where the term proceeds 'member posted to a seagoing ship'. In the past Navy aircraft squadron members who performed duty on a seagoing ship remained posted to their Navy aircraft squadron. 'Navy aircraft squadron' is omitted because these members are now posted to the seagoing ship or seagoing submarine and are therefore covered without mention of 'Navy aircraft squadron'.
• Insert 'seagoing submarine' to make the benefit inclusive to member's posted to a ship or a submarine.
• Improve the clarity of the determination.

Section 27 omits and substitutes section 9.3.14 of the Principal Determination, which provided the conditions for a member's new spouse or partner to travel to the member's next posting location if the dependant was ineligible to travel at Commonwealth expense to the member's current location. The section is restructured to provide the following:

• Remove reference to a 'member's home port as a consequence of section 1 of this Schedule.
• Remove reference to 'Navy aircraft squadron' where the term proceeds 'member posted to a seagoing ship'. In the past Navy aircraft squadron members who performed duty on a seagoing ship remained posted to their Navy aircraft squadron. 'Navy aircraft squadron' is omitted because these members are now posted to the seagoing ship or seagoing submarine and are therefore covered without mention of 'Navy aircraft squadron'.
• Insert 'seagoing submarine' to make the benefit inclusive to member's posted to a ship or a submarine.
• Improve the clarity of the determination.

Schedule 3—Evacuation assistance amendments

Section 1 inserts after section 1.3.21 of the Principal Determination a definition for 'emergency' at section 1.3.21A. Emergency includes an event that causes or threatens to cause damage or destruction to property or threatens injury or damage to the health of a person.

Section 2 inserts after section 1.3.24 of the Principal Determination, a definition for ‘evacuation order' at section 1.3.24AA. An evacuation order is an order given by the Senior ADF Officer for the Defence establishment to evacuate the establishment. Such an order only applies if it is issued in response to an emergency, as defined under the new section 1.3.21A.

Section 3 amends section 7.0.2 of the Principal Determination which provides the contents of Chapter 7. The section is being amended to provide reference to the new part made under this Schedule.

Section 4 inserts a new Part into Chapter 7 of the Principal Determination which provides benefits to members who are living on a Defence establishment immediately before an evacuation order is issued. The new Part consists of the following sections.

• Section 7.11.1 which specifies the purpose of the Part.
• Section 7.11.2 identifies the members who may be eligible for benefits under the Part. This includes members who were occupying either a Service residence or living-in accommodation immediately before an evacuation order is issued.
• Section 7.11.3 sets out the period in which evacuation assistance may be provided.
• Section 7.11.4 provides accommodation assistance to members and their families. Members occupying a Service residence are eligible for the reasonable costs of alternative accommodation, such as a hotel, during the evacuation period. Members occupying living-in accommodation are to occupy living-in accommodation at another Defence establishment, if available and less than 50 km from the place they were living. If no living-in accommodation is available within 50 km, they are eligible for the reasonable costs of alternative accommodation, such as a hotel, during the evacuation period.
• Section 7.11.5 provides assistance towards the costs of meals. The maximum rates payable are the rates that would be payable to member if they were undergoing a removal in accordance with section 7.5.24 of the Principal Determination. Under the new section payment for the costs of incidentals is not available. Members who occupy living-in accommodation are not eligible for this benefit, as they will be provided meals at the Defence establishment where they are living in.
• Section 7.11.6 provides assistance towards the cost of driving from the Defence establishment to a place where accommodation can be provided. The level of assistance is the basic rate of vehicle allowance provided in section 9.6.25 of the Principal Determination. It does not include the increased rates for the number of passengers and is only available to members who have to travel more than 50 km. For ease of administration, the distance is measured in a straight line from the Defence establishment.
• Section 7.11.7 provides a discretion for the Senior ADF Officer for the Defence Establishment to approve additional benefits for a member in exceptional circumstances. The benefit is limited to a maximum of $500 and is not to be provided to increase benefits provided towards the cost of accommodation, meals or vehicle allowance.

Schedule 4—Long-term posting overseas amendments

Section 1 amends section 15.2A.2 of the Principal Determination which provides the contents of Chapter 15 Part 2A. The section is being amended to include entries for the new Divisions 5 and 6 inserted by section 3 of this Schedule.

Section 2 omits section 15.2A.5 from the Principal Determination, which provided that Chapter 15 Part 2A does not apply to a member who is away from the posting location. Rules set out in Division 5, inserted by section 3 of this Schedule, provide what happens when a member is temporarily away from the posting location.

Section 3 inserts two new divisions into the Principal Determination. The new divisions, Division 5 and Division 6, provide the following:

Division 5 sets out the provisions relating to the payment of overseas living allowances when a member or their dependants are temporarily away from the posting location or if the member permanently leaves the posting location and the dependants remain.

• Section 15.2A.21 provides the purpose of Division 5.
• Section 15.2A.22 specifies which member Division 5 applies to.
• Section 15.2A.23 provides that the cost of posting allowance and child supplement allowance cease when a member and their dependants, or the member's dependants, are temporarily away from the posting location for longer than 28 days. It also provides that the allowances recommence when the member and their dependant, as applicable, return to the posting location.
• Section 15.2A.24 provides that the cost of posting allowance ceases for an unaccompanied member when they are away from the posting location for longer than 28 days. It also provides that the allowance recommences when the member returns to the posting location.
• Section 15.2A.25 provides that if a member permanently leaves the posting location before their dependants, the member is eligible for the continued payment of the overseas living allowances until the earlier of two days. The CDF may approve the extension of the payment for the allowances.

Division 6 sets out the provisions relating to meal and clothing allowances.

• Section 15.2A.26 provides the purpose of Division 6.
• Section 15.2A.27 provides a meal allowance for a member who is required to perform additional duty that is at least three hours before or after the member's normal period of duty, the duty is over a meal period and the member does not get a meal break.
• Section 15.2A.28 provides that a member who is directed to live in at the posting location and has not been provided with meals is eligible for the reimbursement of the cost of meals.
• Section 15.2A.29 provides that a member is eligible for the reimbursement of costs for special garments that are required by the member and their dependants at the posting location.

Schedule 5—Overseas benchmark schools and hardship locations amendments

Section 1 amends Annex 15.6.A of the Principal Determination which provides the Benchmark schools for overseas posting locations. The Annex is amended by inserting new benchmarks schools for pre-school, primary school and secondary school in Brunei.

Section 2 amends Annex 15.6.A of the Principal Determination which provides the Benchmark schools for overseas posting locations. The Annex is amended by inserting new benchmarks schools for pre-school, primary school and secondary school for Pisa, Italy.

Section 3 amends Annex 16.B of the Principal Determination which provides the conditions of service for hardship locations overseas for members who are posted to a hardship location on or after 1 July 2017. The annex is amended to update the conditions of service that are to apply to members posted to Brunei.

Schedule 6—Deployment allowance – Operation Steadfast amendments

Section 1 inserts a new table item in subsection 17.7.6.1 of the Principal Determination which provides a new table item for Operation STEADFAST which has been inserted at table item 9A with a specified area of Iraq and a daily rate of allowance of AUD 166.44.

Schedule 7—Transitional provision – Operation Steadfast

Section 1 provides a transitional payment for a member deployed and performing duty on Operation STEADFAST between 10 September 2018 and the commencement of this Determination. The transitional payment provides for an eligible member to be paid deployment allowance for duty performed in the specified operational area.

Criteria are provided for the exercise of discretion 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

For Schedule 1: Before this Determination was made, the Directorate of Military Conditions and Housing Policy, and Defence Force Recruiting were consulted in the development of the Determination.

For Schedules 2 and 3: Before this Determination was made, Navy, Army and Air Force were consulted in the development of the Determination.

For Schedules 4, 5, 6 and 7: Before this Determination was made, Headquarters Joint Operations Command and the Chief Finance Officer Group within the Department of Defence were consulted in the development of this amendment and the rates and areas have been approved by the Minister for Veterans and Defence Personnel. The changes have been agreed and funding assurance provided. No other consultation was considered necessary as these amendments are routine in nature.

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

The purpose of this Determination is to provide the following:

• To make technical amendments to provisions relating to allowances for travel, meals and accommodation for an applicant who applies to join the ADF and contemporising the drafting style.
• To provide a more flexible choice of housing location to a member's dependants if the member is posted to a seagoing ship or seagoing submarine.
• To remove all references in the Principal Determination to the term 'home port – for a member'.
• To replace references to 'Navy aircraft squadron' with 'seagoing ship or seagoing submarine'.
• To provide a basic level of benefits to members if the Defence establishment on which they are living is evacuated in response to an emergency.
• To clarify the reunion travel provisions for members.
• To allow members to use multiple reunion travel benefits at one time to offset the cost of travel for multiple dependants to visit the member at their posting location.
• To provide what happens to a member's overseas living allowances when they temporarily leave a long-term posting location overseas or when a members dependants remain in the location after the member has permanently left.
• To provide meal and clothing allowances for a member on long-term posting overseas.
• To update the overseas conditions of service to include benchmark schools and adjusting the hardship locations benefits for the Nation of Brunei, the Abode of Peace (Brunei) and Pisa, Italy as a consequence the anticipated posting of members being posted to these locations with their dependants.
• To include Operation STEADFAST as a new operation for the payment of deployment allowance and provide a transitional provision for the payment of deployment allowance for members deployed on the operation.

Human rights implications

Schedule 1 Travel, accommodation and meals for applicants

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.

This Determination provides the conditions for an applicant, who is required to travel to a Defence Force Recruiting Centre, to be eligible for accommodation, meal allowances and travel expenses. This ensures that an applicant who is required to travel to the location of a Defence Force Recruiting Centre does not suffer a financial disadvantage resulting from expenses incurred.

Schedule 2 ADF Retention – Removal, housing and travel

The widest possible protection for the family engages Article 10.1 of the International Covenant on Economic, Social and Cultural Rights. Article 10.1 guarantees the widest possible protection and assistance should be accorded to the family.

The purpose of providing a more flexible choice of housing location and associated benefits is to maximise the member's dependant's chances of finding alternative coping mechanisms in the member's absence. This may be in the form of family support or friendship networks found in a location not available at the location of the ship's home port. It is one of a range of conditions that allows the member's dependant's additional flexibility, to protect their needs while at the same time allowing the member to continue their ADF service.

Schedule 3 Evacuation assistance and Schedule 4 Long-term posting overseas

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.

This Determination recognises the right to an adequate standard of living by providing assistance with the cost of accommodation, meals and incidentals to members and their dependants in the event of an emergency evacuation. This is to ensure the safety and welfare of members and dependants who live on a Defence establishment.

Schedule 5 Overseas benchmark schools and hardship locations

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.

Defence provides a range of benefits to members posted overseas to assist members and their dependants 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 amends the benchmark schools for Brunei and Pisa.

Defence requires its members to perform duty in overseas locations, and therefore provides additional benefits, beyond the normal overseas conditions of service. Hardship locations are identified within the Determination compensate members for the conditions they encounter while posted to hardship locations.

Schedule 6 Deployment allowance – Operation Steadfast

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 health conditions, equal opportunity and reasonable limitations.

Defence requires its members to perform duty in overseas locations which are areas of military conflict, and therefore provides additional benefits, beyond the normal overseas conditions of service. Deployment allowance helps financially to compensate members for the conditions they encounter while on deployment.

Schedule 7 Transitional provision – Operation Steadfast

The transitional provision provides that a member who was deployed on Operation STEADFAST before the commencement of this determination is eligible for the payment of the difference between the amount they received and the amount that would have been payable had this Determination commenced on 10 September 2018. This adjustment ensures that the member is not financially disadvantaged.

Conclusion

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

Michael Ian McCulloch, Acting Assistant Secretary People Policy and Employment Conditions