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

This Determination amends Defence Determination 2016/19, Conditions of service (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. These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).

·         Chapter 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.

·         Chapter 3 sets out provisions dealing with salaries and bonuses.

·         Chapter 4 sets out provisions dealing with allowances and reimbursements.

·         Chapter 5 sets out provisions dealing with leave.

·         Chapter 12 sets out provisions dealing with overseas conditions of service.

Prior to its repeal on 1 October 2016, the Defence Force Regulations 1952 provided the basis for the suspension and forfeiture of a Defence member’s salary and allowances if a member was being held in civil custody, subject to detention under the Defence Force Discipline Act 1982 (Defence Force Discipline Act), or imprisonment under the same Act or as a consequence of an order of a civil criminal Court. To avoid adverse consequences for the member’s dependants, the Principal Determination included provisions for the payment of certain allowances and the provision of non-pecuniary benefits to the member’s dependants.

As a consequence of the repeal of the Defence Force Regulations 1952 and the introduction of the Defence Regulation 2016, the authority for suspending and forfeiting a member’s salary and allowances in these circumstances ceased to exist. 

This Determination has the following purposes:

·         It reinstates the authority for suspending and forfeiting a member's salary and allowances during a period of imprisonment, detention or custody.

·         It provides what happens to a member's leave, housing benefits and other conditions of service during a period of imprisonment, detention or custody.

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

Section 2 provides that this instrument commences on 1 October 2020.

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—Definitions relating to imprisonment, detention and custody amendments

Sections 1 to 3 amend Chapter 1 Part 3 Division 1 of the Principal Determination which provides defined terms used within the Principal Determination. The sections include new definitions for the terms 'custody', 'detention' and 'imprisonment' that are used in the new Parts inserted by Schedules 2 and 3 of this Determination.

Schedule 2—Imprisonment, detention and custody within Australia

Section 1 inserts a new Part 7 after Chapter 1 Part 6 of the Principal Determination. Part 7 sets out the effects to a member’s salary and benefits during a period of a member's imprisonment, detention and custody within Australia. The new part provides the following.

·         Section 1.7.1 sets out the purpose of the Part.

·         Section 1.7.2 provides the members the Part applies to.

·         Section 1.7.3 provides the members this Part does not apply to.

·         Section 1.7.4 provides that a member's benefits that they are eligible for under the Principal Determination may be reduced or ceased and contributions increased by the CDF when the member has been imprisoned, detained or held in custody. The section also provides that the CDF can review a decision after 7 days of the decision being made and may adjust the outcomes of the original decision. When making a decision under this section the CDF must take into consideration specified conditions.

·         Section 1.7.5 provides that a member in detention forfeits the part of their salary that exceeds the salary payable to a normal entry recruit during basic training and all of their salary related allowances. During periods of detention a member is regarded as being under training, as such their salary is adjusted accordingly. The section includes the calculation of the amount of salary forfeited during the period of detention. The section also provides that the period of detention does not count as qualifying service for the eligibility of salary related allowances.

·         Section 1.7.6 provides that a member who is imprisoned or in custody forfeits both their salary and salary related allowances. A member who is imprisoned is unable to provide ADF service and therefore their salary is to be forfeited as a reflection of that. The section provides the forfeit period for a single period or imprisonment or custody and weekend or periodic imprisonment or custody. If a member's period in custody is less than 1 full day or 2 consecutive part days they do not forfeit any salary or salary related allowances. The section also provides that the period of imprisonment or custody does not count as qualifying service for the eligibility of salary related allowances.

·         Section 1.7.7 provides that if a decision that led to a member’s imprisonment or detention has been quashed or set aside, or the period in custody was determined to be unlawful the forfeited portion of a member’s salary and salary related allowances under sections 1.7.5 and 1.7.6 be repaid to the member. The section also provides that if a member's eligibility for a reimbursement was ceased, or a contribution was increased, under section 1.7.4, the member is eligible for that benefit. If a member’s service was terminated then the period of repayment commences from the date of forfeiture to a member’s last day of service.

Division 1 sets out the effects to a member’s leave surrounding a period of imprisonment, detention or custody within Australia. The provisions in section 1.7.4 do not apply to this Division.

·         Section 1.7.8 sets out the purpose of the Division.

·         Section 1.7.9 provides that a member is not eligible to take recreation leave during a period of imprisonment or detention. The section also provides that recreation leave does not accrue during this period. If a member had applied for, or was taking this leave before the period, the unused recreation leave is cancelled. Also, if the decision that led to their detention has been quashed or set aside, the member is credited the recreation leave credits that would have been accrued during the period.

·         Section 1.7.10 provides that a member is not eligible to take short absence or medical absence from duty during a period of imprisonment, detention or custody.

·         Section 1.7.11 provides that a member is not eligible to take maternity leave during a period of imprisonment, detention or custody. If the member is on periodic or weekend imprisonment they may take maternity leave during periods which are not periods of imprisonment.

·         Section 1.7.12 provides that members on periodic or weekend imprisonment that may take parental leave during periods which are not periods of periodic or weekend imprisonment.

·         Section 1.7.13 provides that a member is not eligible to take long service leave or accrue long service leave credits during a period of imprisonment, detention or custody.

·         Section 1.7.14 provides that a member is not eligible to take any other form of leave with or without pay during a period of imprisonment or detention.

Division 2 sets out the effects to a member’s housing, removals and storage surrounding a period of imprisonment, detention and custody within Australia.

·         Section 1.7.15 sets out the purpose of the Division.

·         Section 1.7.16 sets out that a member is required to pay the market rent rate for a Service residence or rent band choice accommodation during a period of imprisonment, detention or custody. The section sets out the member's eligibility for removal and storage of the member's and the member's dependant's furniture and effects if the member's eligibility for a Service residence or rent band choice accommodation is ceased.

·         Section 1.7.17 provides that a member is not eligible for rent allowance during imprisonment, detention or custody. If the member chooses to vacate a rent allowance property the member is not eligible for a removal under Chapter 6 of the Principal Determination.

·         Section 1.7.18 provides that the member ceases to be eligible for living-in accommodation if the CDF revokes the member's licence to live in. The member is eligible for storage at the living-in accommodation or removal and storage under Chapter 6 Part 5 of the Principal Determination.

·         Section 1.7.19 provides that the CDF may recover the cost of storage from a member.

·         Section 1.7.20 sets the contribution a member may make towards meals during a period of imprisonment, detention or custody.

·         Section 1.7.21 provides that a member is not eligible for food allowance during a period of imprisonment, detention or custody.

Division 3 sets out the effects on other benefits that a member may be eligible for surrounding a period of imprisonment, detention and custody within Australia.

·         Section 1.7.22 sets out the purpose of the Division.

·         Section 1.7.23 provides that a member is not eligible for uniform allowance when the member is imprisoned or in custody. 

·         Section 1.7.24 provides that a member is not eligible for meal allowance or incidentals for the journey to the place of detention but is eligible for the allowance when they return to their posting location. The member is not eligible for travel benefits under Chapter 9 Part 5 of the Principal Determination if they are required to travel to the place of imprisonment or custody.

·         Section 1.7.25 provides that funeral benefits may be approved in exceptional circumstances under subsection 11.4.6.2 of the Principal Determination.

Schedule 3—Imprisonment, detention and custody overseas

Section 1 inserts a new Chapter 12 Part 6 into the Principal Determination. The new Part 6 deals with the effects to a member’s benefits surrounding a period of imprisonment, detention and custody whilst overseas.

·         Section 12.6.1 sets out the purpose of the Part.

·         Section 12.6.2 provides the members the Part applies to.

·         Section 12.6.3 provides the members the Part does not apply to.

·         Section 12.6.4 provides that if a member’s dependants remain in the overseas location when the member is imprisoned, detained or in custody then the member must make a contribution of 30% of their income that was payable immediately before their imprisonment, detention or custody for the dependant’s housing. The member is not eligible for the reimbursement of utilities costs under section 15.4.15 of the Principal Determination.

·         Section 12.6.5 sets out that following a member’s release from imprisonment, detention or custody overseas when the date is before the end of their duty period then the member is eligible for travel benefits for their return journey to Australia.

·         Section 12.6.6 sets out that a member is eligible for return travel costs to Australia from the date of release until date of arrival in Australia under the relevant provisions in the Principal Determination. The member is not eligible for a rest period during return travel.

·         Section 12.6.7 provides that a member is not eligible for travel benefits to return to Australia if the member is deported from the country of imprisonment or custody. However, if a member is deported to a third country then the member becomes eligible for travel benefits from that country to Australia. The member is eligible for travel benefits if the member voluntarily leaves the country before deportation and within specified period.

·         Section 12.6.8 provides that if a member was accompanied on an overseas posting the dependants are eligible for return travel to Australia subject to Chapter 14 of the Principal Determination. If the member's dependants return to Australia they are not eligible for travel benefits to return the dependants to the location of the member’s imprisonment. If the dependants remain in the overseas posting location they retain eligibility for health related travel but they are not eligible for assisted leave travel. If a member was unaccompanied then there is no eligibility for overseas reunion travel for the member or their dependants.

·         Section 12.6.9 provides that a member is not eligible to take additional recreation leave or assisted leave travel during the period of imprisonment, detention or custody.

·         Section 12.6.10 provides that a member is not eligible to take any form of leave following their release from imprisonment or custody is conditional on the member returning to their overseas posting location or when the member returns to the location of posting immediately prior to their departure from Australia.

·         Section 12.6.11 provides that if the member has any furniture and effects stored under Chapter 6 Part 5 Division 7 of the Principal Determination and the CDF ceases the benefit the member is liable for the cost of the storage. The member may appoint an agent to take possession of the property.

·         Section 12.6.12 provides that if a member dies while imprisoned or in custody overseas then the member’s dependant or legal representative is eligible for the costs associated with preparing the remains and returning those remains to Australia.

Schedule 4—Consequential amendments

Section 1 amends subsection 3.0.1.2 of the Principal Determination which provides an overview and excludes payments during detention from the scope.

Sections 2 to 4 and section 8 amend subsections 3.5.10.3, 3.5.70.3, 3.5.95.2 and section 5.4.6, respectively, of the Principal Determination to insert ‘custody’ as a period that is not effective service.

Section 5 omits Chapter 3 Part 7 the Principal Determination which provides the rules relating to salary and allowances when a member is absent without leave, in custody or undergoing a period of detention or imprisonment. These rules have been replaced by the new Chapter 1 Part 7, inserted by Schedule 2 of this Determination.

Section 6 amends section 4.4.16 of the Principal Determination to omit the note as the referenced regulation is no longer in force.

Section 7 omits section 7.1.9 from the Principal Determination which provides the housing allowances a member may be eligible for during a period of detention. The rule has been replaced by the new Chapter 1 Part 7 Division 2, inserted by Schedule 2 of this Determination.

Section 8 amends subsection 17.7.5.2 of the Principal Determination to omit the note and the cross references as the information referenced is no longer applicable.

Criteria are provided for the exercise of discretion under the Principal Determination, as amended by this Determination. Adverse decisions 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

Navy, Army, Air Force and Defence Legal were consulted in the making of this Determination. 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

Prior to its repeal on 1 October 2016, the Defence Force Regulations 1952 provided the basis for the suspension and forfeiture of a Defence member’s salary and allowances if a member was being held in civil custody, subject to detention under the Defence Force Discipline Act 1982 (Defence Force Discipline Act) or imprisonment under the same Act or as a consequence of an order of a civil criminal Court. To avoid adverse consequences for the member’s dependants, the Principal Determination included provisions for the payment of certain allowances and the provision of non-pecuniary benefits to the member’s dependants.

As a consequence of the repeal of the Defence Force Regulations 1952 and the introduction of the Defence Regulation 2016, the authority for suspending and forfeiting a member’s salary and allowances in these circumstances ceased to exist. 

This Determination has the following purposes:

·         It reinstates the authority for suspending and forfeiting a member's salary and allowances during a period of imprisonment, detention or custody.

·         It provides what happens to a member's leave, housing benefits and other conditions of service during a period of imprisonment, detention or custody.

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.

Legitimate objective: During a period of imprisonment, detention or custody a member is not able to provide service in order to receive fair remuneration, leave and other benefits that they would have normally been eligible for. This Determination sets out the rules that reduce, cease or limit the member's remuneration, leave and other benefits during the period.

Reasonable, necessary and proportionate: This Determination reduces, ceases or limits a member's remuneration and benefits during a period of imprisonment, detention or custody that they would otherwise have been eligible for. The provisions provide a fair and reasonable approach for a member who is not able to provide service during the period.

To avoid adverse consequences to a member's dependants during a period of the member's imprisonment, detention or custody the Determination provides that a member's dependants are eligible for limited assistance. This assistance includes returning the dependants to Australia if the member was imprisoned overseas, continued occupation for 28 days of a Service residence when the member's eligibility has ceased and a removal within Australia to a personal location.

To ensure that the member is not unfairly disadvantaged if a decision that led to their imprisonment, detention or custody is quashed, set aside, or deemed to be unlawful, the provisions include measures to repay a member an equal amount of forfeited salary and salary related allowances, and reimburse any additional contributions that the member may have made during the period.

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.

Jennifer Louise Statton, Acting Assistant Secretary People Policy and Employment Conditions