Federal Register of Legislation - Australian Government

Primary content

Determinations/Other as made
This instrument amends the Defence Determination 2016/19, Conditions of service to reinstate the authority for suspending and forfeiting a member's salary and allowances during a period of imprisonment, detention or custody and provide what happens to a member's leave, housing benefits and other conditions of service during a period of imprisonment, detention or custody.
Administered by: Defence
Registered 28 Sep 2020
Tabling HistoryDate
Tabled HR06-Oct-2020
Tabled Senate06-Oct-2020
Table of contents.

Commonwealth Coat of Arms of Australia

 

Defence Determination, Conditions of service Amendment (Imprisonment, detention and custody) Determination 2020 (No. 18)

I, JENNIFER LOUISE STATTON, Acting Assistant Secretary, People Policy and Employment Conditions, make the following Determination under section 58B of the Defence Act 1903.

Dated 25 September 2020

Jennifer Louise Statton

Acting Assistant Secretary
People Policy and Employment Conditions
Defence People Group

 


Contents

1  Name........................................................................................................................................ 1

2  Commencement........................................................................................................................ 1

3  Authority.................................................................................................................................. 1

4  Schedules................................................................................................................................. 1

Schedule 1—Definitions relating to imprisonment, detention and custody             2

Defence Determination 2016/19, Conditions of service                                                                2

Schedule 2—Imprisonment, detention and custody within Australia                      3

Defence Determination 2016/19, Conditions of service                                                                4

Schedule 3—Imprisonment, detention and custody overseas                                 14

Defence Determination 2016/19, Conditions of service                                                             14

Schedule 4—Consequential amendments                                                                 17

Defence Determination 2016/19, Conditions of service                                                             17

 

 


1  Name

This instrument is the Defence Determination, Conditions of service Amendment (Imprisonment, detention and custody) Determination 2020 (No. 18).

2  Commencement

This instrument commences on 1 October 2020.

3  Authority

This instrument is made under section 58B of the Defence Act 1903.

4  Schedules

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 1Definitions relating to imprisonment, detention and custody

Defence Determination 2016/19, Conditions of service

1
Section 1.3.15 (Continuous full-time service)

 

After the section, insert:

1.3.15A   Custody

 

Means civil custody in the absence of a finding of guilt under any of the following.

 

a.

A Commonwealth law, other than the Defence Force Discipline Act 1982.

 

b.

A State or Territory law.

 

c.

A foreign law.

 

Note: Custody does not include military custody.

2
Section 1.3.18 (Deployment)

 

After the section, insert:

1.3.18A   Detention

 

Means a punishment of detention imposed on a member who has been convicted of a Service offence under the Defence Force Discipline Act 1982.

3
Section 1.3.27 (Health professional)

 

After the section, insert:

1.3.28   Imprisonment

 

Means a punishment of imprisonment imposed on a member who has been convicted of an offence by any of the following.

 

a.

A Service Tribunal under the Defence Force Discipline Act 1982.

 

b.

A civilian court under the law of the Commonwealth, State or Territory.

 

c.

A civil court of another country.


 

Schedule 2—Imprisonment, detention and custody within Australia

Defence Determination 2016/19, Conditions of service

1
Chapter 1 Part 6 (Payment of benefits in certain circumstances)

 

After the Part, insert:

Part 7: Imprisonment, detention and custody within Australia

1.7.1    Purpose

 

This Part sets out what happens to a member’s salary and benefits during a period of imprisonment, detention or custody.

1.7.2    Member this Part applies to

 

This Part applies to a member, including a member of the Reserves on Reserve service, who is imprisoned, in detention or in custody within Australia.

1.7.3    Member this Part does not apply to

1.

The CDF or the Chief of Defence Intelligence may specify a member to whom this Part does not apply for a particular period or activity.

2.

When making a decision under subsection 1, the CDF or the Chief of Defence Intelligence must have regard to the nature of the member’s duty.

1.7.4    General rule – benefits and contributions

1.

This section does not apply to a member in the following circumstances.

 

a.

If individual periodic imprisonment periods of imprisonment are less than 7 consecutive days.

 

b.

If the full length of imprisonment is less than 7 days.

2.

A decision under subsection 3 does not apply to any of the following.

 

a.

The member's salary or salary related allowances.

Note: Sections 1.7.5 and 1.7.6 specify the effect of imprisonment, detention or custody on salary and salary related allowances.

 

b.

The member's leave credits.

Note: Division 1 specifies the effect of imprisonment, detention or custody on leave credits.

 

c.

The member's contributions towards a Service residence, rent allowance or living-in accommodation.

Notes:
1. Division 2 specifies the effect of imprisonment, detention or custody on housing assistance.
2. This subsection does not prevent the CDF from ceasing a member’s eligibility for housing assistance.

3.

If a member has been imprisoned, detained or held in custody for a period of 7 or more continuous days the CDF may decide to do the following.

 

a.

Reduce or cease a benefit that the member was receiving before the member's imprisonment, detention or custody.

Note: The CDF may set a future date when the benefit will be reduced or ceased.

 

b.

Increase a contribution payable by the member, but not above the actual cost of the benefit to the Commonwealth.

 

Note: To avoid doubt, a member will continue to receive benefits for the first 7 consecutive days of imprisonment, detention or custody. The 7 days starts on the day the member is imprisoned, detained or taken into custody.

4.

If a member's benefit or contribution is changed by the CDF under subsection 3, the CDF may review the decision after 7 days.

5.

When reviewing a decision under subsection 4, the CDF may decide to do any of the following.

 

a.

Reinstate a benefit that had been ceased or reduced.

 

b.

Reduce, including a further reduction of benefits previously reduced, or cease other benefits.

 

c.

Reduce a contribution that had been increased.

 

d.

Increase a contribution, including a further increase of a contribution previously increased, but not above the actual cost of the benefit to the Commonwealth.

 

e.

Make no further change to the benefit or contribution.

6.

When making a decision under subsection 3 or subsection 4 the CDF must consider the following.

 

a.

The remaining period of imprisonment, detention or custody.

 

b.

The impact that reducing or ceasing a benefit or increasing a contribution would have on the member's dependants.

 

c.

Any other relevant circumstance.

7.

A member is not eligible for a benefit that they were not eligible for immediately before their imprisonment, detention or custody.

1.7.5    Salary and salary related allowances – member in detention

1.

If a member is in detention both of the following occur for each full day of the member’s period of detention.

 

a.

The part of the member's salary calculated using the following formula, is forfeited to the Commonwealth.

 

Forfeited salary = A – B

 

 

Where:

 

 

A

is the member's rate of salary.

 

 

B

is the salary payable to a normal entry recruit during basic training under Schedule B.13 Part 1 item 1 column 3 of DFRT Determination No. 2 of 2017, Salaries.

 

b.

The member's salary related allowances payable under the following are forfeited to the Commonwealth.

 

 

i.

DFRT Determination No. 14 of 1992, Language allowance.

 

 

ii.

DFRT Determination No. 11 of 2013, ADF allowances.

 

Note: Section 3.2.7 is to be used to calculate the daily rate of salary and salary related allowances.

2.

If a Reserve member who is not on continuous full-time service is in detention the member receives the daily rate of salary for a normal entry recruit during basic training under Schedule B.13 Part 1 item 1 column 3 of DFRT Determination No. 2 of 2017, Salaries, for each full day of the member’s period of detention.

3.

A period of detention does not count as qualifying service for the purpose of eligibility for salary related allowances.

1.7.6    Salary and salary related allowances – member imprisoned or in custody

1.

A member's salary and salary related allowances payable under the following are forfeited to the Commonwealth during a period of imprisonment or custody.

 

a.

DFRT Determination No. 14 of 1992, Language allowance.

 

b.

DFRT Determination No. 11 of 2013, ADF allowances.

2.

For the purpose of subsection 1 the forfeit period is either of the following.

 

a.

For a single period of imprisonment or custody.

 

 

i.

Commencing at the start of the first full day that the member is imprisoned or held in custody.

 

 

ii.

Ending at the end of the last full day the member is imprisoned or held in custody.

 

b.

For periodic imprisonment or custody.

 

 

i.

Commencing at the start of the first day for each period that the member is imprisoned or held in custody.

 

 

ii.

Ending at the end of the last day of each period that the member is imprisoned or held in custody.

 

Note: Section 3.2.7 is to be used to calculate the daily rate of salary and salary related allowances payable.

3.

If a member is held in custody for less than a full day, or two consecutive part days, the member does not forfeit any salary or salary related allowances.

Note: If the member is absent from duty without leave while being held in civil custody, action under section 29 of the Defence Regulation may apply.

4.

A period of imprisonment or custody does not count as qualifying service for the purpose of eligibility for salary related allowances.

1.7.7    Conviction quashed or set aside

1.

This section applies to a member if either of the following occurs.

 

a.

The decision that led to a member's imprisonment or detention has been quashed or set aside.

 

b.

The period in which the member was held in custody was determined to be unlawful.

2.

If the member had part of their salary forfeited under section 1.7.5, the member is to be paid both of the following amounts.

 

a.

An amount of salary calculated using the following formula.

 

Amount of salary repayable = A – B

 

 

Where:

 

 

A

is the amount of salary that the member would have received during the period had the member not been in detention.

 

 

B

is the amount of salary that the member received during the period the member was in detention.

 

b.

An amount equal to the salary related allowances payable under the following which were forfeited during the period the member was in detention.

 

 

i.

DFRT Determination No. 14 of 1992, Language allowance.

 

 

ii.

DFRT Determination No. 11 of 2013, ADF allowances.

3.

If the member's salary and salary related allowances were forfeited under section 1.7.6, the member is to be paid an amount equal to the salary and salary related allowances that were forfeited during the period.

4.

If a member's contribution for a benefit was increased under section 1.7.4, the member is to be reimbursed an amount calculated using the following formula.

 

Amount of contribution reimbursed = A – B

 

Where:

 

A

is the contribution amount paid by the member during the period of imprisonment, detention or custody.

 

B

is the contribution amount that would have been paid by the member during the period of imprisonment, detention or custody.

5.

If a member's eligibility for a reimbursement was ceased under section 1.7.4, the member is to be paid the amount that the member would have been reimbursed had the member not been imprisoned, in detention or held in custody.

6.

If a member's service in the ADF was terminated during a period of imprisonment, detention or custody, the member is to be paid any salary and salary related allowances that would have been payable from the date of forfeiture up until the member's last day of service.


 

Division 1: Leave

1.7.8    Purpose

 

This Division sets out what happens to a member’s leave during a period of imprisonment, detention or custody.

 

Note: The general rule in section 1.7.4 does not apply to any type of leave.

1.7.9    Recreation leave

1.

A member is not eligible to take recreation leave during a period of imprisonment or detention.

2.

A period of imprisonment, detention or custody is non-effective service for the purpose of recreation leave accrual.

3.

A member is credited recreation leave credits that would have accrued during a period of detention if the decision is quashed or set aside.

 

Note: This subsection does not apply to imprisonment or custody.

1.7.10    Short absence and medical absence from duty

 

A member is not eligible to take short absence or medical absence from duty during a period of imprisonment, detention or custody.

1.7.11    Maternity leave

1.

A member is not eligible to take maternity leave during a period of imprisonment, detention or custody.

2.

If a member is imprisoned, detained or held in custody during the required absence provided under Chapter 5 Part 6 Division 3, the required absence period is reduced by the by the number of days the member was imprisoned, in detention or custody during that period.

3.

If a member is in periodic imprisonment or weekend imprisonment, the member may take maternity leave when not serving a period of imprisonment during the period in which maternity leave can be taken.

1.7.12    Parental leave

 

If a member is in periodic imprisonment or weekend imprisonment, the member may take parental leave when not serving a period of imprisonment during the period in which parental leave may be taken.

1.7.13    Long service leave

1.

A period of imprisonment, detention or custody is non-effective service for the purpose of accruing long service leave credits under Chapter 5 Part 5 Division 3.

2.

The member is not eligible to take long service leave during a period of imprisonment, detention or custody.

1.7.14    Other forms of leave with or without pay

 

A member is not eligible to take any other forms of leave with pay provided under Chapter 5 during a period of imprisonment or detention.

Note: This section does not apply to custody.


 

Division 2: Housing, removals and storage

1.7.15    Purpose

 

This Division sets out what happens to a member’s housing, removals and storage benefits during a period of imprisonment, detention or custody.

 

Note: The general rule in section 1.7.4 does not apply to the contribution rate payable for any type of housing.

1.7.16    Member occupying a Service residence or rent band choice property

1.

During a period of imprisonment, detention or custody a member is required to pay the market rent rate for the Service residence or rent band choice property for the following period.

 

 

a.

Commencing on the first full day of the member’s imprisonment, detention or custody.

 

 

b.

Ceasing on the earlier of the following.

 

 

 

i.

The last full day the member is in prison, detention or custody.

 

 

 

ii.

The day the member vacates the property.

 

 

Note: If the member is not in receipt of salary during this period, the payments will be considered a debt to the Commonwealth.

2.

Subject to subsection 4, if the member is in financial hardship the CDF may reduce the market rent rate payable under subsection 1.

 

3.

If the member’s eligibility for a Service residence or a rent band choice property is ceased by the CDF under section 1.7.4, the member is eligible for a removal under Chapter 6 Part 5 within 28 days to a location within Australia.

 

4.

If the member or the member's dependants do not vacate the residence within the 28 day period under subsection 3, both of the following apply.

 

 

a.

The member’s contribution is the equivalent of market rent rate for the residence until the residence is vacated.

 

 

b.

The member is not eligible for either of the following.

 

 

 

i.

A removal under Chapter 6 Part 5.

 

 

 

ii.

A reduction in the market rent rate under subsection 2.

 

5.

If the member chooses to vacate a Service residence or rent band choice property and their eligibility for the accommodation has not ceased, the member is not eligible for a removal under Chapter 6 Part 5.

 

6.

The member is not eligible for housing assistance for their dependants if either of the following applies.

 

 

a.

The member's eligibility for a Service residence or rent band choice property is ceased by the CDF under section 1.7.4.

 

 

b.

The member chooses to vacate a Service residence or rent band choice property.

 

7.

If a member is required to vacate their Service residence or rent band choice property and the member is unable to remove their property due to their imprisonment, detention or custody, the member’s property may be removed and stored under Chapter 6 Part 5 until the member’s release or an agent appointed by the member takes possession of the property.

Notes:
1. The member may be responsible for the cost of storage under section 1.7.19.
2. If the member appoints an agent to take possession of their property, this appointment must be in writing.

 

8.

If a member’s possessions have been removed to another location or to storage, the member is not eligible for a removal under Chapter 6 Part 5 on their release from imprisonment, detention or custody unless they are posted to a new posting location.

 

1.7.17    Member occupying a rent allowance property

1.

A member ceases to be eligible for rent allowance on the first full day of the member's imprisonment, detention or custody.

2.

If the member chooses to vacate the rent allowance property during a period of imprisonment, detention or custody, Chapter 6 does not apply.

1.7.18    Member occupying living-in accommodation

1.

A member ceases to be permitted to occupy living-in accommodation if the CDF revokes the member's licence to live in.

2.

When making a decision under subsection 1, the CDF must take the following into consideration.

 

a.

The duration of the member’s imprisonment, detention or custody.

 

b.

The pattern of the member’s imprisonment, detention or custody.

 

c.

The type of living-in accommodation.

 

d.

Whether the accommodation is needed for a member who is required to live in.

 

Note: If the member’s licence to live in is revoked under subsection 1, the member may be eligible for housing assistance upon release from imprisonment, detention or custody.

3.

If the member’s property remains in the living-in accommodation, the member is eligible for one of the following.

 

a.

Storage of the member's property in the living-in accommodation.

 

b.

Removal and storage of the member's property under Chapter 6 Part 5.

Note: The member may be responsible for the cost of storage under section 1.7.19.

1.7.19   Storage costs

1.

If a member's possessions have been removed and stored under Chapter 6 Part 5, section 1.7.16 or section 1.7.18, the CDF may recover the cost of the storage from the member.

2.

When making a decision under subsection 1 the CDF must take the following into consideration.

 

a.

The amount of property put into storage.

 

b.

Any special storage requirements that resulted in an increased cost to the Commonwealth.

 

c.

The number and type of vehicles that required storage.

1.7.20    Contribution for meals

 

If the member is on a continuous period of imprisonment, detention or custody the member is not required to make a contribution for meals under Chapter 7 Part 9 Division 1.

1.7.21    Food allowance

 

A member ceases to be eligible for food allowance under Chapter 7 Part 9 Division 2 during a period of imprisonment, detention or custody.


 

Division 3: Other benefits

1.7.22    Purpose

 

This Division sets out the effect on other benefits that a member may or may not be eligible for during a period of imprisonment, detention or custody.

1.7.23    Uniform allowance

 

If a member is imprisoned or in custody, the member ceases to be eligible for uniform allowance for any full or part day.

1.7.24    Travel in Australia

1.

If a member is required to travel to or from the place of detention, the following apply.

 

a.

The member is not eligible for meal allowance or incidentals for the journey to the place of detention but the member will be provided a reasonable meal having regard to the length and time of the journey.

 

b.

The member is eligible for meal allowance and incidentals payable under Chapter 9 Part 5 for the return journey to the member's posting location.

 

Note: Travel relating to the start and end of a period of detention is duty travel.

2.

If a member is required to travel to or from the place of imprisonment or custody, the member is not eligible for travel benefits under Chapter 9 Part 5.

1.7.25    Funeral costs

 

The Director General Defence Community Organisation may approve funeral benefits in exceptional circumstances under subsection 11.4.6.2.

 


Schedule 3—Imprisonment, detention and custody overseas

Defence Determination 2016/19, Conditions of service

1
Chapter 12 Part 5 (International travel and isolation periods)

 

After the Part, insert.

Part 6: Imprisonment, detention and custody overseas

12.6.1    Purpose

 

This Part sets out what happens to a member’s benefits during a period of imprisonment, detention or custody while overseas.

12.6.2    Member this Part applies to

 

This Part applies to all members, including a member of the Reserves on Reserve service, on short-term duty or long-term posting overseas.

12.6.3    Member this Part does not apply to

1.

The CDF or the Chief of Defence Intelligence may identify a member to whom this Part does not apply for a particular period or activity.

2.

When making a decision under subsection 1, the CDF or the Chief of Defence Intelligence must have regard to the nature of the member’s duty.

12.6.4    Dependants remaining in overseas location

1.

If a member's dependants remain in the overseas location while the member is imprisoned, detained or in custody.

 

a.

The member must pay 30% of their salary which was payable immediately before their imprisonment, detainment or custody for the dependant's housing.

 

b.

The member is not eligible for a reimbursement of utilities costs under section 15.4.15.

2.

If the member is in financial hardship the CDF may reduce the amount payable under subsection 1.

12.6.5    Return travel to Australia before duty period has ended

 

If a member has been imprisoned, detained or held in custody, and the member is released before the end of the duty period, the member's return travel benefits to Australia apply.

12.6.6    Return travel to Australia after duty period has ended

1.

If a member was imprisoned or taken into custody overseas and is released after their duty period has ended, the member is eligible for return travel to Australia as soon as practicable after release.

2.

The member is eligible for travel costs from the date of their release until the member arrives in Australia.

 

Note: Travel cost provisions can be found under the relevant of the following.

 

a.

For a member on short-term duty Chapter 13 Part 3 Division 1.

 

b.

For a member on long-term posting — Chapter 14 Part 4.

3.

Travel on return to Australia must be by a route that meets the conditions under subsection 14.4.5.3.

4.

The member is not eligible for a rest period during the return travel to Australia. The member may be eligible for a rest period on their return to the member’s posting location in Australia.

12.6.7    Member deported from country

1.

If a member is deported from the country where the member was imprisoned or in custody, either of the following applies.

 

a.

If the member is deported to Australia the member is not eligible for travel benefits to return to Australia.

 

b.

If the member is deported to a third country the member is eligible for travel benefits from the third country to Australia as soon as practicable after the member's arrival in the third country to return to Australia.

2.

If the member voluntarily leaves the country before their deportation and within the specified deportation period, the member is eligible for travel benefits to return to Australia.

12.6.8    Travel for a member’s dependants

1.

If the member is accompanied overseas, the following apply.

 

a.

The member’s dependants are eligible for return travel to Australia under Chapter 14.

 

b.

If the dependants return to Australia while the member is still imprisoned or in custody, the dependants are not eligible for travel benefits to return to the location where the member is imprisoned.

 

c.

If the dependants remain in the overseas posting location the dependants are not eligible for assisted leave travel under Chapter 16 Part 4.

2.

If the member is unaccompanied, the member and dependants are not eligible for overseas reunion travel.

12.6.9    Additional recreation leave and assisted leave travel

 

A member who is imprisoned, detained or taken into custody overseas is not eligible for additional recreation leave or assisted leave travel during the period of the imprisonment, detention or custody.

12.6.10    Leave on release

 

A member who has been released from imprisonment or custody is not eligible to take any form of leave until either of the following.

 

a.

The member returns to their overseas posting location.

 

b.

If the member does not have an overseas posting location, the member returns to the location that was their posting location immediately before their departure from Australia.

12.6.11    Storage

1.

If the member has furniture and effects stored under Chapter 6 Part 5 Division 7 and the CDF decides to end the benefit under subsection 1.7.4.3, the member is liable for the costs of storage from the day on which they are imprisoned or taken into custody until their release.

2.

The member may appoint an agent to take possession of the property. Both of the following conditions apply.

 

a.

The appointment must be in writing.

 

b.

The agent must remove all of the property from storage.

3.

The Commonwealth is not liable for any loss or damage to the property while the property is not being removed or stored at Commonwealth expense.

12.6.12    Funeral expenses

 

If a member dies while imprisoned or in custody overseas the member's dependant or their legal representative is eligible for the following.

 

a.

The reasonable cost of preparing the remains.

 

b.

The cost of returning the member’s remains to Australia, if requested by the member’s next of kin.

 


Schedule 4—Consequential amendments

Defence Determination 2016/19, Conditions of service

1
Subsection 3.0.1.2 (Overview)

 

Omit ", and payments during detention".

2
Subsection 3.5.10.3 (Effective service for the purpose of the bonus), table item 8

 

Omit table item 8, substitute:

 

8.

Imprisonment, detention, custody, or suspension from duty without pay.

The period for which the member is in this situation does not count as effective service.

 

3
Subsection 3.5.70.3 (Service that counts towards a member's retention bonus), table item 7

 

Omit table item 7, substitute:

 

7.

Imprisonment, detention, custody or suspension from duty without pay

The whole period is not effective service.

 

4
Subsection 3.5.95.2 (Service that counts towards the bonus), table item 13

 

Omit table item 13, substitute:

 

13.

Imprisonment, detention, custody or suspension from duty without pay.

Does not count towards the bonus.

 

5
Chapter 3 Part 7 (Salary and allowances when a member is absent without leave, in civil custody or undergoing a period of detention or imprisonment)

 

Omit the Part.

6
Section 4.4.16 (Member serving a period of detention), note

 

Omit the note.


 

7
Section 5.4.6 (Definitions), table

 

Omit the definition of Non-effective service, substitute:

 

Non-effective service

A period of more than 24 hours when one of the following applies.

a.

The member is on unpaid leave.

b.

The member is absent without leave.

c.

The member is suspended, on detention, in prison or in custody immediately before a conviction.

d.

The member is on detention or in prison after a conviction.

 

8
Section 7.1.9 (Amount of allowance for member serving a period of detention)

 

Omit the section.

9
Subsection 17.7.5.2 (Member this Division applies to), notes

 

Omit the notes.