Federal Register of Legislation - Australian Government

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Determinations/Other as made
This determination amends the Defence Determination 2016/19, Conditions of service to remove references to the Sydney/Holsworthy housing scheme from the concept of posting location. In its place, the policy intent behind the Sydney/Holsworthy housing scheme is provided for by making adjustments to the rent ceiling for affected members of the Australian Defence Force living in member choice accommodation or in receipt of rent allowance and to ensure that food allowance is payable to a member on days where they may receive less than three meals a day at Commonwealth expense.
Administered by: Defence
Registered 27 Jun 2019
Tabling HistoryDate
Tabled HR02-Jul-2019
Tabled Senate02-Jul-2019
Date of repeal 17 Sep 2019
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

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.

Chapter 7 of the Principal Determination sets out provisions dealing with housing and associated benefits provided to members of the Australian Defence Force (ADF).

The purpose of this Determination is to:

·         remove references to the Sydney/Holsworthy housing scheme from the concept of posting location. In its place, the policy intent behind the Sydney/Holsworthy housing scheme is provided for by making adjustments to the rent ceiling for affected members of the ADF living in member choice accommodation or in receipt of rent allowance.

·         ensure that food allowance is payable to a member on days where they may receive less than three meals a day at Commonwealth expense.

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

Section 2 provides that this instrument commences on 11 July 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 1Sydney/Holsworthy housing scheme amendment

Section 1 removes item 11 from the table in section 7.1.15 of the Principal Determination, which sets out a member’s posting location in specific circumstances. The item is removed as the purpose of the Sydney/Holsworthy housing scheme is to retain the member’s rent ceiling, rather than to amend their posting location.

Section 2 omits section 7.1.16 of the Principal Determination, which establishes the Sydney/Holsworthy housing scheme. While the scheme continues to exist, it does not need to be established by the Principal Determination. Information about the scheme will be provided to members separate to the Principal Determination on the pay and conditions website.

Section 3 omits note 1 from subparagraph 7.6.4.1.b.i of the Principal Determination, which provides information about the Sydney/Holsworthy housing scheme. The note has no legal effect and is removed as a consequence of the amendment made in section 1 of this schedule.

Section 4 omits and substitutes subsection 7.7.13.1 of the Principal Determination, which sets the rent ceiling for members who occupy member choice accommodation under Part 7 of the Principal Determination.  Items 1- 3 of the table in the subsection are retained, removing administrative notes. Item 4 of the table in subsection 1 and subsection 1A are inserted to give effect to the Sydney/Holsworthy housing scheme.


 

Section 5 inserts a new section 7.8.11A into the Principal Determination. The new section gives effect to the Sydney/Holsworthy housing scheme for members receiving rent allowance. The effect of the new section is to displace the rent ceilings set by sections 7.8.9, 7.8.10 and 7.8.11, retaining the rent ceiling for a member in the Sydney/Holsworthy housing scheme set before the member was posted to 2 Commando Regiment.

Schedule 2Food allowance amendment

Section 1 omits and substitutes section 7.9.11 of the Principal Determination, which provides the circumstances in which a member is not eligible to receive food allowance. The amendment retains the former paragraphs c, d, and e, replacing paragraph b to provide that a member ceases to be eligible for food allowance on a day on which the member received three meals at Commonwealth expense.

Consultation

Before this Determination was made, consultation on amendments made by:

·         Schedule 1 was undertaken with Navy and the Directorate of Relations and Housing.

·         Schedule 2 was undertaken with the Navy, Army, Air Force and the Pay and Administration Branch.

 

The rule maker was satisfied that further external consultation was not required.

 

 

Authority:  Section 58B of the
Defence Act 1903

 

 


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

The purpose of this Determination is to:

·         remove references to the Sydney/Holsworthy housing scheme from the concept of posting location. In its place, the policy intent behind the Sydney/Holsworthy housing scheme is provided for by making adjustments to the rent ceiling for members of the ADF living in member choice accommodation or in receipt of rent allowance.

·         ensure that food allowance is payable to member on days where they may receive less than three meals a day at Commonwealth expense.

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.

Sydney/Holsworthy housing Scheme

This Determination ensures that a member of the Navy who is posted from a location in Sydney to 2 Commando Regiment but continues to reside in Sydney is not disadvantaged by retaining the same rent ceiling that applied to them before they were posted to 2 Commando Regiment. 

Food allowance

Legitimate objective: ADF members who live away from their dependants may incur additional food expenses as a result of being away from their dependants. This could cause an adverse effect on the member financially. A member is not eligible for food allowance if they are on a period of leave exceeding one week, other than a period of medical absence, eligible for temporary accommodation allowance and has not occupied a serviced apartment for more than one week or is on a long-term posting overseas.

Reasonable, necessary and proportionate: Food allowance for members with dependants (unaccompanied) assists the member to meet the additional food expenses that they incur while away from their dependants. While this Determination also limits a member’s eligibility to food allowance in certain circumstances, this is just and proportionate as the member will receive either a meal or another allowance from the Commonwealth for the purpose of purchasing a meal.

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