EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Puckapunyal housing trial and rent ceiling for overlapping posting locations) Determination 2019 (No. 3)
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.
This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).
- Chapter 1, which sets out the Introduction to the Principal Determination.
- Chapter 6, which sets out provisions dealing with relocations on posting in Australia for members of the ADF.
- Chapter 7, which sets out the provisions for housing and meals.
This Determination has the following purposes.
- To expand the conditions for the Puckapunyal housing trial to apply to a member who is returning from a long term overseas posting and their spouse or partner is seeking employment and to simplify the rules that apply to the Puckapunyal housing trial.
- To provide for a member who is posted to a new posting location that overlaps the member’s previous posting location, the member remains in the same rental accommodation and the new posting location has a lower rent ceiling than the losing location.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 24 January 2019.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Puckapunyal housing trial - Amendment to Defence Determination 2016/19, Conditions of Service
Section 1 inserts paragraph 1.3.55.1.d to the Principal Determination, which provides when a member’s posting location means an area surrounding a member's normal place of duty. The new paragraph provides that an area extended by the CDF for a member participating in the Puckapunyal housing trial (the trial) is taken to be the members posting location.
Section 2 and 3 omit subsections 1.3.55.3 and 1.3.55.4 of the Principal Determination respectively. Subsection 1.3.55.3 provided a CDF power to approve a greater area for a member participating in the trial as their posting location. Subsection 1.3.55.4 provided the criteria a member must meet for the CDF to exercise the power. These subsections have been omitted as they have been inserted into Chapter 7 of the Principal Determination by section 5 of this Determination.
Section 4 substitutes paragraph 6.5.5.e of the Principal Determination, which provides circumstances when a member is not eligible for a removal at Commonwealth expense. The paragraph has been amended to update cross referencing.
Section 5 substitutes section 7.1.16A of the Principal Determination, which provides when a member is taken to be participating in the trial. For a member to be participating in the trial, they must have had their posting location extended by the CDF under section 7.1.16A. The new section provides the power for the CDF to extend the posting location, the criteria the member must meet to be approved the extension, and the cessation date of the trial. A legislative note has been added to clarify that a member may be eligible for housing assistance under the standard rules.
Section 6 omits subsection 7.6.28.1A of the Principal Determination, which provides that a member with dependants, who is participating in the trial, may be eligible for a surplus Service residence in the extended posting location if they do not own a suitable home in the extended posting location. This subsection has been removed as it is provided for under subsection 7.6.28.1 of the Principal Determination.
Section 7 substitutes paragraph 7.6.34.2.f of the Principal Determination, which provides when a member may reject a reasonable offer for a Service residence. The paragraph has been amended to provide that a member who is participating in the trial may reject a reasonable offer for a Service residence if it does not meet the purpose for which the member entered the trial.
Section 8 omits subsection 7.8.5.1A of the Principal Determination, which provides that a member who is participating in the trial, may be eligible for rent allowance for accommodation in the extended posting location. This subsection has been removed as it is provided for under subsection 7.8.5.1 of the Principal Determination.
Section 9 substitutes section 7.8.5A of the Principal Determination, which provides when a member participating in the trial becomes eligible for rent allowance for the accommodation in the extended posting location, and then they cease to be eligible. The section has been amended as the rule is provided for under subsection 7.8.5.1 of the Principal Determination. A new rule is inserted to clarify that the member who leaves the trial during their posting to the Puckapunyal Military Area may be eligible for rent allowance if they return to the posting location for that area.
Section 10 omits subsection 7.8.9A of the Principal Determination, which provides that the subsection applies to member's who are participating in the trial. The subsection has been removed as the rule is already provided in section 7.8.9 of the Principal Determination.
Section 11 omits section 7.8.17A of the Principal Determination, which provides the rent contribution a member participating in the trial must pay, when the contribution commences, and when it ceases. The section has been removed as the rule exists in section 7.8.17 of the Principal Determination.
Schedule 2 – Rent ceiling for overlapping posting locations - Amendment to Defence Determination 2016/19, Conditions of Service
Section 1 inserts after subsection 7.8.9.5, which sets the rent ceiling that is to be applied to a member for the purpose of calculating rent allowance, a new rule that increases a member’s rent ceiling. The new subsection provides the rent ceiling that applies to a member who is posted to an overlapping posting location, but remains in the same rental accommodation they occupied in the previous posting location. For these purposes, posting location and previous posting location are narrowly defined, having the same meanings provided in paragraph 1.3.55.1.a. and does not include a posting location that has been extended under paragraphs 1.3.55.1.b. or c.
Section 2 substitutes subsection 7.8.10.6 of the Principal Determination, which provided where the rent ceiling amounts were set out. This has been removed as it is guidance only, and has no legislative effect. The new subsection provides the rent ceiling that applies to a member who is posted to an overlapping posting location, but remains in the same rental accommodation they occupied in the previous posting location. For these purposes, posting location and previous posting location are narrowly defined, having the same meanings provided in paragraph 1.3.55.1.a. and does not include a posting location that has been extended under paragraphs 1.3.55.1.b. or c.
Consultation
Before this Determination was made, consultation was undertaken with Navy, Army and Air Force, the Directorate of Relocations and Housing, Defence Housing Australia, Career Management Army, Directorate of Attaché and Office Management, Defence Families of Australia and Senior ADF Officer at Puckapunyal. The rule maker 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 (Puckapunyal housing trial and rent ceiling for overlapping posting locations) Determination 2019 (No. 3)
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 makes technical amendments to Defence Determination 2016/19, Conditions of service.
The Determination has the following purposes.
- To expand the conditions for the Puckapunyal housing trial to apply to a member's spouse or partner who is seeking employment.
- To provide the rent ceiling that applies to a member who is posted to an overlapping posting location, but remains in the same rental accommodation they occupied in the previous 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.
Legitimate objective: Defence members are posted to perform duty in different locations around Australia. This could limit the ability of their spouse or partner to undertake employment or study should they choose to accompany the member.
Reasonable, necessary and proportionate: The Puckapunyal housing trial provides members who are posted to the Puckapunyal Military area with housing assistance in an extended posting location. This amendment will provide for a member's spouse or partner to seek employment which may not be available in the posting location
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 recognised 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.
Legitimate objective: Defence members are required to live in various posting locations throughout Australia. This could cause a member and their family financial hardship or low housing standards if the member is posted to a location and remains in the Service residence and the new posting location has a lower rental ceiling than the losing location.
A Defence member may choose to remain in a Service residence if the new posting location overlaps the losing location. Where the new posting location has a lower rent ceiling than the losing location, the member may request approval to have the rent ceiling increased to assist the member in maintaining their right to an adequate standard of living.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Derek Julian Cox, Acting Assistant Secretary People Policy and Employment Conditions