EXPLANATORY STATEMENT

Defence (State of Emergency  – Townsville floods) Amendment Determination 2019 (No. 3)

This Determination amends Defence (State of Emergency – Townsville floods) Determination 2019 (No.1) (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.

The purpose of this Determination is to make amendments responding to the now known state of housing availability in Townsville. This Determination will have no detrimental effect on the current benefits received by ADF members or their dependants as it enables the continuity of those benefits. The determination establishes mechanisms to wind back the emergency benefits as the situation in Townsville continues to improve. Provisions that cease benefits are accompanied by discretionary powers to extend the benefit in exceptional circumstances.  

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 on the Federal Register of Legislation.

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Amendments to Defence (State of Emergency – Townsville floods) Determination 2019 (No.1)

Section 1 omits and substitutes subsection 11.4 of the Principal Determination, which provides that a member or their dependants are no longer eligible for temporary accommodation under section 11 three days after one of the following.

• The day member or their dependants decides to permanently remain in their temporary accommodation, or the day they return to Townsville and occupy a Service residence, rental accommodation, or their own home.
• The day a decision maker is satisfied that the member is not taking reasonable steps to occupy one of the above types of accommodation.
• 13 April 2019.

Section 2 omits and substitutes subsections 11.5 of the Principal Determination, which provides a discretion for a decision maker to set a later date for which a member or their dependants to become ineligible for temporary accommodation.

Section 3 omits and substitutes subsection 12.2 of the Principal Determination, which provides that a member’s contribution towards temporary accommodation is zero until the date that subsection 11.4 applies, which is inserted by section 1 of this Schedule. Subsection 12.2 further provides that where a decision maker has extended the date for which a member may occupy temporary accommodation the member must make a contribution towards the cost of the temporary accommodation from the date set in subsection 11.4 until the date determined by the decision maker under subsection 11.5

Section 4 omits and substitutes section 13 of the Principal Determination which provides eligible members with the reasonable costs of the hire of a car where the member does not have access to a car in the location of their temporary accommodation.

• Subsection 13.1 provides that a member or their dependants will have access to this benefit until whichever comes first, the day they are no longer required to occupy temporary accommodation, or 13 March 2019.
• Subsection 13.2 provides a discretion for a decision maker to determine that a member who would otherwise not be eligible to be eligible for the cost of the hire of a car for a longer period in exceptional circumstances.
• Subsection 13.3 provides a discretion for a decision maker to determine that a member who does not occupy temporary accommodation to be eligible for the cost of the hire of a car for a period that the decision maker deems to be reasonable.

Section 5 omits and substitutes subsection 14.2 of the Principal Determination. A new subsection has been added to provide that a member or their dependants are eligible for the cost of travel from the location where they occupied temporary accommodation back to Townsville. It further provides that the reasonable cost of excess baggage is included in the benefit.

• Subsection 14.2 has also been amended to provide that where a member receives a travel benefit under subsection 14.1 or subsection 14.1A, the member or their dependants are eligible for the costs of meals for the duration of the travel.

Section 6 inserts subsection 15.5 into the Principal Determination which provides that a member who has had their animals boarded as a result of the Townsville floods will receive a reimbursement for boarding costs for 7 days after the member occupies one of the types of accommodation listed.

Section 7 omits and substitutes section 16 of the Principal Determination, which provides that a member is eligible for the difference in agistment fees if the member has had to find alternative agistment for animals as a result of the Townsville floods.

• Subsection 16.2 provides that the member will remain eligible for the reimbursement until 2 days after their previous agistment becomes available, the day a new permanent agistment arrangement is entered, or 13 March 2019.
• Subsection 16.3 provides a discretion for a decision maker to determine that a member is eligible to be reimbursed the difference in the costs of agistment fees for a longer period in exceptional circumstances.

Section 8 inserts subsection 17.4 into the Principal Determination, which provides that a member ceases to be eligible to live in living-in accommodation once they or their dependants occupy one of the types of accommodation listed, or the member chooses to live in living-in accommodation permanently.

Section 9 inserts subsection 18.2A into the Principal Determination, which provides that a member ceases to be eligible for an additional rent allowance once they or their dependants occupy one of the types of accommodation listed, or the member chooses to live in living-in accommodation permanently.

Section 10 inserts subsection 20.3 into the Principal Determination, which provides that benefits for members under section 20 cease to apply on 13 March 2019. Section 20 provides for a member who is categorised as a member with dependants (unaccompanied) with return economy class flights from their place of duty to Townsville for the purpose of providing support to their dependants.

Section 11 omits and substitutes section 21 of the Principal Determination, which provides a benefit which enables members to nominate a person to travel from their place of residence to Townsville to provide care and supervision for a member's dependants who are children or an adult with special needs.

• Subsection 21.1 provides the purpose of the section.
• Subsection 21.2 provides that a member is eligible for a nominated person to travel from their place of residence to Townsville. The nominated person is eligible for an economy flight to Townsville, or vehicle allowance.
• Subsection 21.3 provides that the benefit under subsection 21.2 ceases 28 days after the member or their dependants occupy either a Service residence, rental accommodation or their own home in Townsville.
• Subsection 21.4 provides that a member is eligible for a nominated person to travel from Townville to their place of residence. The nominated person is eligible for an economy flight to their place of residence, or vehicle allowance.
• Subsection 21.5 provides that if the member's nominated person travels by car the member is eligible for the costs of accommodation for the nominated person during the allowable travel time.

Section 12 inserts subsection 22.3 into the Principal Determination, which provides that a member with dependants who has been displaced from their accommodation as a result of the Townsville floods is eligible to live in Member Choice accommodation in Townsville. Members are not required to pay a contribution until they or their dependants occupy one of the types of accommodation listed, or they choose to remain in Member Choice accommodation.

Section 13 inserts subsections 23.4, 23.5 and 23.6 into the Principal Determination, which sets out the provisions relating to the removal of furniture and effects when a member is able to occupy accommodation in Townsville.

• Subsection 23.4 provides that a member who has had their furniture and effects removed from their accommodation in Townville to either their temporary accommodation, or an approved store is eligible to have the items that were removed in the original removal removed back to their accommodation in Townville.
• Subsection 23.5 provides that where a member has had their furniture and effects removed under subsection 23.4 to a Service residence that is of a lower classification that what the member would have been eligible for under the Defence Determination, the member is eligible for a removal to the Service residence, once one becomes available, that the member has accepted that is at the correct classification.
• Subsection 23.6 proves that a decision maker may approve the removal of additional furniture and effects if they feel it is reasonable to do so in the circumstances.

Consultation

Before this Determination was made, consultation internal to Defence was undertaken with Navy, Army and Air Force, the Estate and Infrastructure Group and Defence People Group. 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 (State of Emergency  – Townsville floods) Amendment 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 provides benefits to members of the Australian Defence Force and their families who live in the Townsville Disaster District, as declared by the Acting Minister for Fire and Emergency Services in the State of Queensland, and have been adversely affected by the floods in that area.

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

Article 11 recognises the right to an adequate standard of living, including adequate food, clothing and housing and to the continuous improvement of living conditions.

This Determination provides just and favourable working conditions to members of the Australian Defence Force (ADF) in response to the natural disaster that is the floods in the Townsville Disaster District, by way of providing additional housing and travel benefits to members of the ADF and their dependants as a condition of service. The additional benefits recognise the hardship that members and their families may suffer as a result of the floods.

This determination recognises the right to an adequate standard of living by providing temporary accommodation to members of the ADF and their dependants by providing temporary accommodation and food allowances to those who have been displaced from their homes as a result of the floods in Townsville.

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