EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Sale of own home in posting location and own means travel) Determination 2019 (No. 5)

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 7 sets out provisions dealing with housing assistance for ADF members.
• Chapter 9 sets out provisions dealing with travel benefits for members who travel by their own means.

The Determination has the following two purposes:

• Amend the provisions relating to a suitable own home and when it may be unsuitable for the member and their dependants to live in.
• Amend the provisions for what the Commonwealth will pay the member if they apply for travel by own means.

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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

Section 1 omits and substitutes section 7.2.12 of the Principal Determination which provides when a member's home is unsuitable. The section has been revised to make the following changes.

• The provisions at paragraphs a to d have been redrafted for modernisation and to clarify the provisions.
• A new provision, paragraph e, has been included to provide that a member's home is not a suitable own home seven days before the settlement of a contract for sale. This time will allow a member to be eligible for housing assistance and to relocate to the new accommodation before the date of settlement.
• A new provision, paragraph f, provides that a suitable own home is not suitable when the member commenced action to sell the home before the member arrived in the posting location and that the CDF is satisfied that the member continues to take reasonable steps to sell the home. The previous provision relating to a home that was advertised for sale did not work as a member's home at another location is already deemed to be unsuitable under the Principal Determination as a consequence of the home being outside the member’s current posting location.
• The former subsections 6 and 7 provided that the Director Relocations and Housing may also decide that it is unreasonable for a member to live in a home have been removed. This additional decision point is no longer required.

Schedule 2 amends the Principal Determination.

Section 1 substitutes section 9.1.6 of the Principal Determination. This section provided that if a member has been approved to travel by their own means, the Commonwealth will pay the lesser amount between the normal departmental liability, or the amount of vehicle allowance payable if the travel were made by private vehicle. Section 1 removes the specific reference to vehicle allowance and provides that the actual cost of travel be used instead. Section 1 also sets out how the vehicle component of the actual costs of the travel to be calculated if a member applies for own means travel. The vehicle component of that travel is to be calculated in accordance with Chapter 9 Part 6 Division 5 of the Principal Determination. This change allows for other types of travel, such as train, bus or mixed modes of travel, to be included for the purposes of the calculation if the actual cost of this travel is less than the Normal Departmental liability.

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. A person may make a complaint to the Defence Force Ombudsman.

Consultation

Navy, Army, Air Force and the Directorate of Relocations and Housing were consulted in the development of this Determination. No external consultation was undertaken in accordance with section 17 of the Legislation Act 2003 as the amendments are of a minor nature and do not substantially alter existing arrangements.

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 (Sale of own home in posting location and own means travel) Determination 2019 (No. 5)

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 amendments to Defence Determination 2016/19, Conditions of service.

The Determination has the following two purposes:

• Amend the provisions relating to a suitable own home and when it may be unsuitable for the member and dependants to live in.
• Amend the provisions for what the Commonwealth will pay the member if they apply for travel by own means.

Human rights implications

Suitable own home

Right to an adequate standard of living

The person’s right to an adequate standard of living engages article 11 of the International Covenant on Economic, Social and Cultural Rights. Article 11 ensures the realisation of this right, recognising the essential importance of an adequate standard of living, including housing.

Legitimate objective: ADF members are required to live in various posting locations throughout Australia, which may require them to live in a variety of housing types, such as on a military base, in a Service Residence or a member's own home.

Reasonable, necessary and proportionate: This amendment will allow a member to be eligible for housing assistance when a member sells their suitable own home and the expected date of settlement of the home is anticipated to occur within seven days. It also provides that a member's suitable own home may be unsuitable if a member commenced action to sell the home before arriving in the posting location. The remaining provisions have been redrafted to modernise the drafting and to provide clarity on when a suitable own home may be unsuitable for the member and dependants to live in.

Travel by own means

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 requires its ADF members to travel across Australia to achieve its organisational goals. The underlying principle is that travel at Commonwealth expense is a reasonable cost on the basis that an ADF member should neither gain nor lose financially when required to travel.

Reasonable, necessary and proportionate: A member may be approved to travel by own means using the calculation at Chapter 9 Part 6 Division 5, Vehicle allowance amounts and limits. Defence provides these provisions so ADF members can apply to travel via their own means if this is a more convenient and cost-effective travel method for the individual. This Determination includes other forms of commercial transportation to be included as a part of the calculation of vehicle allowance.

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