EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Travel) Determination 2019 (No. 10)

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 4 sets out provisions dealing with allowances and reimbursements.
• Chapter 7 sets out provisions dealing with housing and meals.
• Chapter 9 sets out provisions dealing with travel costs in Australia.
• Chapter 15 sets out provisions dealing with living and working on long-term posting overseas.

This Determination has the following purposes.

• It implements new domestic travel cost consciousness reforms to achieve savings and efficiencies within the Department of Defence.
• It adjusts the rates of accommodation, meal and incidentals allowances for ADF members required to travel on Defence business. The allowance rates are set following advice from a contracted service provider.
• It adjusts the lists of high-cost and medium-cost country centres for the purposes of determining accommodation, meal and incidentals allowances for members required to travel on Defence business.
• It adjusts meal rates for members and their dependants living in temporary accommodation.
• It makes consequential amendments due to the cost consciousness reforms.

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

Section 2 provides that this instrument commences on 16 May 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Amendment to Defence Determination 2016/19, Conditions of Service

Section 1 omits and substitutes subsection 9.1.9.1 of the Principal Determination, which sets out the class of air travel a member and their dependants may be eligible for when travelling at Commonwealth expense. Members at the rank of Brigadier or higher, Warrant Officer of the Navy, Regimental Sergeant Major of the Army and Warrant Officer of the Air Force have previously been able to fly business class for domestic flights except for flights between Canberra and Sydney. This provision has been amended to provide that these members and dependants may be provided economy class travel, however they may fly business class in specific circumstances or when a flight is scheduled for longer than 90 minutes. The class of air travel provisions for Victoria Cross for Australia recipients and their escorts have been removed from the subsection as this rule is provided under section 4.7.5 of the Principal Determination.

Sections 2 and 3 amend section 9.3.20 of the Principal Determination, which sets out the amount payable for meals for a non-Service spouse or partner when they are travelling to a new location on the breakdown of their marriage or partnership.

• Section 2 omits and substitutes subsection 1 to include a table that was formally in subsection 2 and to remove references to a member's rank for the amount payable for meals, a member's rank is no longer a consideration for the payment of meal costs.
• Section 3 amends subsection 2 by removing the table that is now located in subsection 1 and to remove two examples that are not legislative in nature.

Sections 4 and 5 amend section 9.5.17 of the Principal Determination, which provides the meal and incidentals payable to a member while living out on a journey.

• Section 4 omits and substitutes the table in subsection 9.5.17.2 to remove references to a member's rank for the amount payable for meals and incidentals, a member's rank is no longer a consideration for the payment of meal costs.
• Section 5 omits subsection 9.5.17.3 to remove three examples which are not legislative in nature. 

Sections 6 and 7 amend the section 9.5.20 of the Principal Determination, which provides the travel costs for a member living in during travel.

• Section 6 amends the title of the section to clarify that the section applies to a member living in who is eligible to use the Defence travel card.
• Section 7 omits and substitutes the table in subsection 9.5.20.2. The table has been amended to remove reference to a member's rank for the amount payable for accommodation, meals and incidentals, a member's rank is no longer a consideration for the payment of these costs.
• Section 7 also increases the rate of incidentals payable for each day of the travel period after 21 days, the rate is increased by 1.85%.

Section 8 omits and substitutes the table in subsection 9.5.39.2 of the Principal Determination, which provides the rate of travel allowance payable to a member living in during travel. The table has been amended to remove reference to a member's rank for the amount payable for accommodation, meals and incidentals, a member's rank is no longer a consideration for the payment of these costs. Section 8 also increases the rate of incidentals payable for each day of the travel period after 21 days, the rate is increased by 1.85%.

Schedule 2 – Amendment to Defence Determination 2016/19, Conditions of Service

Section 1 omits and substitutes the table in section 4.5.9 of the Principal Determination, which sets out the rates of meal allowance payable in circumstances where Service-provided meals are unavailable. The rates have increased on average by 1.84%.

Section 2 omits and substitutes the table in subsection 7.5.24.2 of the Principal Determination, which provides meal allowance rates for members, their spouse or partner and dependent children aged 10 years or older. These meal rates apply to members and their dependants when they are staying in temporary accommodation. The rates are increased on average by 1.84%.

Sections 3 and 4 amend subsection 7.5.24.3 of the Principal Determination, which provides meal allowance rates for a member's children aged less than 10 years. These rates apply to meals taken when a member and their dependants are in temporary accommodation. The rates are increased on average by 1.7%.

• Section 3 omits and substitutes the table in subsection 3 to increase the meal rates, the figures are calculated by halving the rates amended by section 2 of this Determination, and rounding up to the nearest five cents.
• Section 4 omits the example from subsection 3. This example is not legislative in nature.

Section 5 amends subsection 9.5.10.2 of the Principal Determination which provides the rate for part-day travelling allowance. The rate is increased by 1.8%.

Section 6 amends the table in subclause 9.5.41.2 of the Principal Determination, which provides a maximum amount of travelling allowance that a member is eligible for when living in or out on a journey longer than 21 days. The incidentals rate is increased by 1.85%.

Section 7 substitutes the table in Part 2 of Annex 9.5.B to the Principal Determination, which provides the maximum meal rates for a member living out on a journey longer than 21 days. The meal rates are increased by 1.8%.

Section 8 amends the formula in subsection 15.2.37.2 of the Principal Determination. The formula calculates a meal allowance rate for members performing additional duty while on long-term posting overseas. Variables include an Australian dollar figure and local exchange rates. The Australian dollar figure is increased by 1.83%.

Schedule 3 – Amendment to Defence Determination 2016/19, Conditions of Service

Section 1 omits and substitutes Annex 9.5.A of the Principal Determination. The Annex sets out the maximum daily allowance rates that may be provided to members for accommodation, meals and incidentals when travelling on Defence business. The Annex has been restructured in the following ways.

• Part 1 provides the accommodation rates for members at the rank of Brigadier or higher and for the ranks of Colonel or lower. The Part formally provided the accommodation, meal and incidental rates for Brigadier and above only. The meal and incidental rates are now provided in Part 4 of the Annex.
• Part 2 provides the accommodation rates for high-cost country centres, these rates were previously provided under Part 3. The Part formally provided the accommodation, meal and incidental rates for Colonel and lower only. The accommodation rates are now provided in Part 1 and the meal and incidental rates are now provided in Part 4 of the Annex.
• Part 3 lists the medium-cost country centres which were previously listed in Part 4.
• Part 4 provides the meal and incidental rates payable. The cost consciousness review has resulted in the meal and incidental rates for members at the rank of Brigadier or higher being reduced to the rate payable to members at the rank of Colonel or lower. To remove a duplication of these rates which were previously provided in Parts 1 and 2 of the Annex, they are now provided in Part 4.

Part 1 of Annex 9.5.A provides the travel rates for accommodation for the ranks of Brigadier or higher and for the ranks of Colonel or lower. The average rates for both rank categories have changed in the following ways.

• Accommodation rates have increased for Adelaide (3.1%), Brisbane (2.7%), Darwin – high season (9.4%), Darwin – low season (9.2%), Hobart (6.5%), Melbourne (0.8%), Perth (4.9%) and Sydney (1.6%).
• Medium-cost country centre accommodation rates are increased on average by 9.8%.
• Other-country centres accommodation rates are increased on average by 9.9%.

Part 2 of Annex 9.5.A sets out the maximum amounts that may be paid for accommodation in high-cost country centres. Seventeen locations have dropped to a lower category. The amendments to Part 2 vary the accommodation amounts by between +14.7% (Katherine) and -5.5% (Jabiru), based on changes in local accommodation markets.

Part 3 of Annex 9.5.A lists the locations classified as medium-cost country centres. Fourteen new locations, which were previously high-cost country centres, have been added to this list. Sixteen locations have been removed from this list as they are now categorised as other-cost country centres.

Part 4 of Annex 9.5.A sets out the maximum travel rates for meals and incidentals. The cost consciousness review has resulted in an average reduction of 9.72% for meals and 28.75% for incidentals payable to members at the rank of Brigadier or higher. The rate that was formally paid to members at the rank of Colonel or lower, which is now payable to all members, has increased on average by 1.84% for meals and 1.81% for incidentals.

Schedule 4 – Amendment to Defence Determination 2016/19, Conditions of Service

Section 1 omits and substitutes section 1.3.77 into the Principal Determination, which defines the term ‘travel card’. The definition has been amended to specify that the travel card is used to pay for accommodation, meal and incidental costs. Provisions which stated that a member could use the card to get a cash advance have been removed to support the cost consciousness changes which only allow a member to withdraw cash when a service provided does not accept the travel card or if it is not practicable to use the travel card as made by Schedule 1 section 4 of this Determination.

Sections 2 to 5, 8 to 13 and 15 to 21 amend numerous sections within the Principal Determination to amend references to Annex 9.5.A which has been restructured in Schedule 3 of this Determination.

Sections 6 and 7 amend subsection 9.1.5.2 of the Principal Determination. Section 6 amends subsection 9.1.9.1 to update cross references. It also amends who the subsection applies to as it now applies to a member dependants, who may not be members of the ADF. Section 7 removes a see note which is not legislative in nature.

Section 14 amends section 9.5.8 of the Principal Determination, which provides definitions of terms that are used in Chapter 9 Part 5. The definition of city location has been removed as it is not used within the Part. The term of capital city is the term that is used within the Part and it is defined in Chapter 1 Part 3 Division 1 section 1.3.9.

Consultation

The Minister of Defence was consulted and approved the cost conscious travel changes on 22 February 2019. These changes were also approved by the Defence Secretary and the Chief of the Defence Force.

Consultation was undertaken with the Services, Defence Travel, the Directorate of Relocations and Housing, the Directorate of Senior Officer Management and the Pay and Administration Branch during the development of this Determination.

The rulemaker 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 (Travel) Determination 2019 (No. 10)

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.

This Determination has the following purposes.

• It implements new domestic travel cost consciousness reforms to achieve savings and efficiencies within the Department of Defence.
• It adjusts the rates of accommodation, meal and incidentals allowances for ADF members required to travel on Defence business. The allowance rates are set following advice from a contracted service provider.
• It adjusts the lists of high-cost and medium-cost country centres for the purposes of determining accommodation, meal and incidentals allowances for members required to travel on Defence business.
• It adjusts meal rates for members and their dependants living in temporary accommodation.
• It makes consequential amendments due to the cost consciousness reforms.

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.

Cost consciousness

Legitimate objective: Defence has interests across Australia, and travel by members is necessary to achieve Defence goals. Due to budget constraints work has been undertaken to achieve savings and efficiencies within the Department of Defence. One of the areas that was agreed upon for change was reforms to the domestic travel provisions which includes reducing the entitlement to domestic business class air travel and the rates of meal and incidental allowances for members of the Senior Leadership Group.

Reasonable, necessary and proportionate: This Determination amends the class of air travel and the meal and incidental allowance provisions for members at the rank of Brigadier and above, Warrant Officer of the Navy, Regimental Sergeant Major of the Army and Warrant Officer of the Air Force.

The changes to the class of air travel provisions specify that members are to travel by economy class. However, the member may be eligible to fly business class if their travel meets specified criteria.

The provisions relating to meal and incidental allowances have been amended to provide that members at the rank of Brigadier and above receive the same rate as members at the rank of Colonel and below. The lower rate of allowance payable to members at the rank of Brigadier and above will still meet reasonable meal and incidental costs for these members. However, if it can be shown that the allowance was insufficient to meet the actual expenditure, higher rates may be approved by the delegate.

Travel allowances

Legitimate objective: Defence has interests across Australia, and travel by members is necessary to achieve Defence goals. Travel allowance benefits ensure that members and their families who travel are accommodated and fed in a way that meets their needs, and assists in meeting the goal of the travel. The underlying principle is that people should be provided assistance with reasonable travel costs on the basis that they should neither gain nor lose financially when required to travel.

Reasonable, necessary and proportionate: This Determination adjusts the accommodation, meal and incidental rates to ensure that members and their families who are required to travel to another location do not suffer a financial disadvantage resulting from the expenses incurred.

Conclusion

This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions