EXPLANATORY STATEMENT
Defence (Individual Housing Assistance – Post termination of service) Amendment Determination 2021
This Determination amends Defence (Individual Housing Assistance – Post termination of service) Determination 2018 (the Principal Determination), 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.
The purpose of this Determination is to extend the period in which a specified former member is able to receive benefits under the Principal Determination and to removing the requirement for the former member to pay a housing contribution. The Principal Determination provides housing assistance and a removal benefit to the former member as a part of Defence’s processes for supporting members during the transition process. The unique aspects of this case mean that longer term support and assistance are to be provided to the former member. The delays in the completion of relevant projects that underpin the benefits provided by Principal Determination require the extension of those benefits.
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.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on the day after registration.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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—Benefits amendments
Sections 1, 3 and 4 amend sections 6, 8 and 9 of the Principal Determination, which specify the end dates of particular benefits provided under that determination. The amendment extends the end date of the benefits by 2 years, enabling the former member to continue to receive the benefits until 31 December 2023.
Section 2 amends section 7 of the Principal Determination, which requires the member to pay a contribution towards their housing. This section is omitted which ceases the requirement for the member to pay a housing contribution.
Consultation
Before this Determination was made, consultation was undertaken with Army and Estate and Infrastructure Group, Department of Defence.
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 (Individual Housing Assistance – Post termination of service)
Amendment Determination 2021
Overview of the Determination
The purpose of this Determination is to extend the period in which a specified former member is able to receive benefits under the Principal Determination and to removing the requirement for the former member to pay a housing contribution.
Human rights implications
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.
This Determination is compatible with human rights specifically with Article 11 of the International Covenant on Economic, Social and Cultural Rights as it extends housing assistance benefits to ensure that a former member of the ADF receives just and favourable housing in accordance. This Determination ensures that the member can occupy a residence until which time that the member is able to occupy their own home.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions
Overview
The Defence (Individual Housing Assistance – Post termination of service) Amendment Determination 2021 amends the Defence (Individual Housing Assistance – Post termination of service) Determination 2018, made under section 58B of the Defence Act 1903. This legislative instrument was introduced to address delays in the completion of projects underpinning the benefits provided by the Principal Determination, and to provide longer term support to a specified former member. The policy objective is to extend the period in which the former member is able to receive benefits and to remove the requirement for the former member to pay a housing contribution, thereby ensuring that they can maintain an adequate standard of living. This extension and removal of the housing contribution requirement align with the protection of human rights, specifically Article 11 of the International Covenant on Economic, Social and Cultural Rights, which recognises the right to an adequate standard of living, including housing. The Determination was made by the Australian Government and is subject to the scrutiny of the Parliament under the Legislation Act 2003.
Scope and Application
The Defence (Individual Housing Assistance – Post termination of service) Amendment Determination 2021 amends the Defence (Individual Housing Assistance – Post termination of service) Determination 2018, applying to former members of the Australian Defence Force (ADF) who are receiving housing assistance and a removal benefit post-termination of service. This Determination extends the period for which these benefits are available by two years until 31 December 2023, and removes the requirement for the former member to make a housing contribution. The extended benefits aim to provide continued support to the specified former member during the transition period, particularly given delays in completing relevant projects that underpin the benefits. Decisions made under this Determination are subject to the ADF redress of grievance system and complaints can be made to the Defence Force Ombudsman. This legislative instrument is made under section 58B of the Defence Act 1903 and is a disallowable legislative instrument subject to the Legislation Act 2003. This Amendment Determination is compatible with human rights, specifically advancing the right to an adequate standard of living as protected under Article 11 of the International Covenant on Economic, Social and Cultural Rights.
Key Provisions
The Defence (Individual Housing Assistance – Post termination of service) Amendment Determination 2021 (the Determination) amends the Defence (Individual Housing Assistance – Post termination of service) Determination 2018 (Principal Determination). Section 6 of the Principal Determination is amended to extend the period for which a specified former member can receive housing assistance until 31 December 2023. Section 8 is amended to extend the period for which the specified former member can receive a removal benefit until 31 December 2023. Section 9 is amended to extend the period for which the specified former member can receive a bond assistance benefit until 31 December 2023. Section 7 is amended to omit the requirement for the member to pay a contribution towards their housing. This means that the member no longer has to contribute to their housing costs.
The Determination imposes several obligations on the relevant parties, primarily focusing on the extended benefits provided to the specified former member. The Department of Defence is required to ensure that the former member receives the housing assistance, removal benefit, and bond assistance benefits until 31 December 2023. The former member is required to occupy a residence until they are able to occupy their own home and must adhere to any other conditions set out in the Principal Determination. The former member is no longer required to contribute towards their housing costs, as this obligation has been removed.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the Determination for breach of its provisions. However, decisions 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. A person may also make a complaint to the Defence Force Ombudsman if they believe there has been an unfair or improper action taken by the Department of Defence in relation to the benefits provided under the Determination. The Determination is compatible with human rights, specifically with Article 11 of the International Covenant on Economic, Social and Cultural Rights, as it extends housing assistance benefits to ensure that the former member receives just and favourable housing.