Defence (Individual benefits) Determination 2022 (No. 2)

EXPLANATORY STATEMENT

Defence (Individual benefits) Determination 2022 (No. 2)

This Determination is 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.

Purpose

The purpose of this Determination is to provide a member on a long-term overseas posting additional accommodation in Australia for their dependants before and after the birth of their children

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 under taken with Army and the Department of Foreign Affairs and Trade. The rule maker was satisfied that the further consultation was not required.

Annex A

Defence (Individual benefits) Determination 2022 (No. 2)

Operational details

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

Section 2 provides that this Determination commences on the day after it is registered.

Section 3 provides that this instrument has authority under section 58B of the Defence Act.

Section 4 provides that the Determination applies to a member who holds one of the following employee identification numbers:

• 8219114
• 8573635

Section 5 provides the purpose of the determination, which is to provide a member on a long-term overseas posting additional accommodation in Australia for their dependants before and after the birth of their children.

Section 6 provides definitions which apply to the determination, and includes definition of decision maker, dependant, Defence Determination and partner.

Section 7 provides the following:

• Subsection 7.1 provides that a member is eligible for accommodation in Australia for their dependants starting on earlier of following:
  • The date which the member’s dependants return to Australia for the purpose of giving birth; or
  • If applicable, the date the accommodation benefit under section 15.2.20 of the Defence Determination 2016/19, conditions of service (the Defence Determination) ends.  
• Subsection 7.2 provides that the maximum duration of benefit under subsection 7.1 is the greater of the following:
  • Seventy-seven days from when the benefit commences (less any days which accommodation has been provided under section 15.2.20 of the Defence Determination), or
  • The number of days between the commencement of the benefit and a date set the decision maker.
• Subsection 7.3 provides that the maximum daily rate for accommodation under this Determination is double the rate specified in Column C of the table in Annex 9.5.A Part 1 of the Defence Determination that corresponds with the location of the accommodation.

Section 8 provides that if the member’s dependants cease to occupy paid accommodation before the maximum duration of the benefit under subsection 7.2 is reached, the member ceases to be eligible for accommodation from the day paid accommodation is no longer occupied.

Section 9 provides that benefits under this Determination may be provided directly to the member or by way of reimbursement.

Section 10 provides that there is no eligibility to meals or incidentals under this Determination.

Section 11 provides that this Determination repeals on 31 December 2022.

Annex B

 Defence (Individual benefits) Determination 2022 (No. 2)

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 provide a member on a long-term overseas posting additional accommodation in Australia for their dependants before and after the birth of their children

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.

Right to an adequate standard of living

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.

Assessment of compatibility

This Determination is compatible with human rights as it provides a member on a long-term overseas posting with accommodation in Australia prior to and after the birth of their children as a part of their conditions of service package. The benefit will provide accommodation for a total of 11 weeks, giving the member’s family accommodation in Australia pre and post birth.

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.