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Determinations/Other as made
This determination makes various technical amendments to Defence Determination 2016/19, Conditions of service.
Administered by: Defence
Registered 14 Oct 2021
Tabling HistoryDate
Tabled HR18-Oct-2021
Tabled Senate18-Oct-2021
To be repealed 30 Mar 2022
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2021 (No. 20)

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 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the Principal Determination which provides benefits for members of the Australian Defence Force (ADF) and their families as a part of the member’s conditions of service. The Principal Determination provides a range of benefits that recognise the unique nature of military service and the obligation and limitations that military service places on members and their families. Members undertake service in both the domestic and overseas environments, including on deployments. Specific benefits are provided for each environment.

Purpose

The purpose of this Determination is to:

·         Provide a formula to calculate the fortnightly rate of an annual rate of allowance under the Principal Determination.

·         Make technical amendments that promote the use of the correct terminology, and remove information which is no longer required as a consequence of historical amendments made to the Principal Determination. Technical amendments are routine in nature, and do not alter the underlying policy. These amendments will not change the benefits which are currently provided.

·         Make technical amendments that remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision. A number of sections have also been redrafted to bring them into line with contemporary drafting standards, to improve readability and to remove information that is non-legislative in nature and does not need to be determined.

·         Amend the rate of allowances for a member who is posted to a remote location. The rates are set following advice received from a contracted service provider and the consumer price index.

·         Increase the base rates of Deployment Allowance by 2%, in line with the increase to ADF salary and salary related allowances. Consistent with this, the maximum amount of reimbursement for an additional risk premium on life insurance is also increased by 2%.

Operational details

Details of the operation of the Determination are provided at annex A.

Human rights compatibility

The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.

Review options

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.

Consultation

Consultation was not considered necessary for the amendments in this Determination. The changes are technical in nature and do not amend the provision of benefits and the rule maker was satisfied that external consultation was not required.

 

Approved by:

Fiona Louise McSpeerin

Assistant Secretary

People Policy and Employment Conditions

 

Authority:

Section 58B of the
Defence Act 1903

 


Annex A

Defence Determination, Conditions of service Amendment Determination 2021 (No. 20)

Operational details

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

Section 2 provides that schedules 1 to 3 of this instrument commence on 14 October 2021, and schedules 4 and 5 of this instrument commences on 11 November 2021.

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 1Chapters 1 to 5 miscellaneous amendments

The changes under this Schedule are technical amendments and do not alter the underlying policies, or the benefits which are currently provided.

Section 1 omits section 1.3.16 of the Principal Determination which provides how to calculate the daily rate of an annual rate. The section only applies to allowances under a determination made by the Defence Force Remuneration Tribunal (DFRT). Determinations made by the DFRT provide how to calculate the daily rate of annual allowance, so the definition is not required, and is removed.

Section 2 omits and substitutes section 1.3.25 of the Principal Determination which provides the definition of “fortnightly rate”. The section is redrafted to update the cross references as a consequence of changes made by section 18 of this schedule.

Section 3 omits subsection 1.3.85.7 of the Principal Determination which sets out the arrangements that apply if a person is not recognised as a dependant under Chapter 1 Part 3 Division 2. The subsection is non-legislative and administrative in nature and is removed.

Sections 4, 6, 7, 9, 11, 13, 16, 17, 21, 23, 24, 26, 28 to 31, 33 and 34 make amendments to the Principal Determination to remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision.

Sections 5 and 19 omit section 1.5.4 and Chapter 3 Part 4 of the Principal Determination which provides that a member must repay the amount of any overpayment. The provisions are removed as the requirement for members to repay any overpayment is set out under section 11 of the Public Governance, Performance and Accountability Rule 2014, and Accountable Authority Instruction 7 - Managing debt, and do not need to be replicated in the Principal Determination.

Section 8 omits the note from subsection 1.7.6.2 of the Principal Determination which provides that section 3.2.7 is to be used to calculate the daily rate of salary and DFRT allowances payable to a member. The note is removed as a consequence of changes made by section 18 of this schedule. Determinations made by the DFRT provide how to calculate the daily rate of annual allowance, so the note is not required, and is be removed.

Section 10 omits and substitutes paragraph 2.1.4.4.a of the Principal Determination which sets out the amount of accommodation and meals allowance a member who is required to travel as a result of their appointment to, or enlistment in the ADF is eligible for. The paragraph is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision.

Section 12 omits and substitutes subsection 2.1.5.2 of the Principal Determination which provides that the applicant who travels to or from a recruiting centre must repay any prepaid fares they do not spend. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision.

Section 14 amends the heading to Chapter 2 Part 3 of the Principal Determination which provides financial benefits for members whose service is being terminated. The provisions in Chapter 2 Part 3 relating to gratuities were omitted by section 1 of Schedule 1 of Defence Determination, Conditions of service Amendment Determination 2021 (No. 17), and as a consequence the heading is amended to omit ‘and gratuities” to promote correct terminology.

Section 15 amends subsection 2.3.6.2 of the Principal Determination which provides that members are to be paid an additional amount that is equal to the salary they would have received if they continued to serve between the day their service ends and a later day. The subsection is amended to omit ‘between’ and substitute ‘between and including’ to clarify that the period they are paid the additional amount includes the day their service ends and the later date.

Section 18 omits and substitutes section 3.2.7 of the Principal Determination which provides administration of salary and allowances for a member to which they are payable. The section is redrafted to remove references to salary and allowances set by the DFRT. Determinations made by the DFRT provide how the daily and fortnightly rate of salary and allowances made under section 58H of the Defence Act are to be calculated, so this information is not required and is removed. The redrafted section also provides a formula to calculate the fortnightly rate of allowances under the Principal Determination, to improve the administration of allowances under the Principal Determination.

Section 20 omits and substitutes subsection 3.5.71.6 of the Principal Determination which provides that if a member fails to complete their agreed period of effective service for a reason not listed in subsection 3.5.72.1 then they must repay part of their retention bonus. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 22 omits and substitutes section 4.6.4 of the Principal Determination which provides that a member is eligible for basic membership of an airline club for a government contracted carrier. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 25 amends subsection 4.8.7.3 of the Principal Determination which provides that a trainee on a flexible service determination is to be paid trainee dependant allowance on a pro rata basis. The subsection is amended to change ‘section 3.2.7’ to ‘section 3.2.7A’ to provide the current reference for adjusting allowances under the Principal Determination for a member on a flexible service determination.

Section 27 omits section 5.4.26A of the Principal Determination which provides that purchased leave credits cannot be sold back. The section is non-legislative and administrative in nature and is removed.

Section 32 omits paragraph 5.10.7.3.b of the Principal Determination which provides that gratuities on retirement or invalidity under the Defence Force Retirement and Death Benefits Act 1973 do not count as qualifying service for the period set out in subsection 5.10.7.2 of the Principal Determination. The provisions relating to gratuities on retirement or invalidity under the Defence Force Retirement and Death Benefits Act 1973 were omitted by section 1 of Schedule 1 of Defence Determination, Conditions of service Amendment Determination 2021 (No. 17), and as a consequence the paragraph is no longer current and is omitted.

Schedule 2Chapter 8 to 11 miscellaneous amendments

The changes under this Schedule are technical amendments and do not alter the underlying policies, or the benefits which are currently provided.

Sections 1, 2, 4 to 6, 8 to 11, 14, 15, 17 to 24, 27 to 35, 37 to 40, 44 to 46, 48 to 51, 54, 55, 56, 58 to 63, 66 to 68, 70 to 77, 80 and 82 make amendments to the Principal Determination to remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision.

Section 3 omits and substitutes paragraph 8.6.12.3.b of the Principal Determination which provides that the CDF may approve the installation or removal of portable window mounted air conditioners and heaters the member has purchased not including split-system air conditioners. The paragraph is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 7 omits and substitutes subsection 8.7.8.1 of the Principal Determination which provides that a member is eligible to receive accommodation assistance for certain payments for breakfast, lunch and dinner. The subsection is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to reflect contemporary drafting styles, and also adds subsection 8.7.8.1A, which inserts text previously provided by subsection 8.7.8.1.

Section 12 omits and substitutes subsection 9.1.10.3 of the Principal Determination which sets out the methods a member is eligible to transport baggage above the free charge limit set by the carrier. The subsection is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 13 omits and substitutes subsection 9.1.10.5 of the Principal Determination which provides that a member is eligible for the cost of insuring baggage. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision. The note is non-legislative and administrative in nature and is removed.

Section 16 omits and substitutes section 9.2.9 of the Principal Determination which provides that a member is eligible for travel on their first removal after they enter the Service. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 25 omits and substitutes section 9.2.37 of the Principal Determination which provides that a recruit who takes up their option to a free discharge is eligible for travel for certain periods. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 35 omits and substitutes subsection 9.3.18.4 of the Principal Determination which provides that a member is eligible for travel costs if they travel by air for reasons other than those provided in section 9.1.4. The subsection is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 36 omits and substitutes subsection 9.3.22.1 of the Principal Determination which provides that a non-Service spouse or partner is eligible for the cost of carrying up to 156 kilograms of baggage that cannot be removed with furniture and effects. The subsection is redrafted to remove a reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles, and also adds subsection 9.3.22.1A, which inserts text previously provided by subsection 9.3.22.1.

Section 41 omits subsection 9.3.55.3 of the Principal Determination which provides that a member or their spouse or partner is not eligible for compassionate travel assistance for the overseas portion of the journey under section 9.3.55. The subsection is redrafted as a note to remove a reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 42 omits and substitutes section 9.3.60 of the Principal Determination which provides that a member is eligible for compassionate travel for their children if the CDF approves under certain conditions. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 43 omits and substitutes section 9.3.66 of the Principal Determination which provides that Chapter 9 Part 3 Division 9 does not apply if the member’s visitor normally lives in the location where the member is in hospital. The section is redrafted to remove the reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 47 omits and substitutes paragraph 9.3.72.2.b of the Principal Determination which provides that vehicle allowance payable under section 9.6.25 for distance travelled is one of the costs that may be approved by the CDF when an approved visitor travels by private vehicle. The paragraph is redrafted to remove a reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles, and also adds a note, which inserts text previously provided by the exception.

Section 52 omits and substitutes subsection 9.3.85.1 of the Principal Determination which provides that a member is not eligible to have their partner accompany them on Defence business travel within Australia unless the CDF is satisfied the purpose of the travel is in the interests of the Commonwealth. The subsection is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 53 omits subsection 9.4.3.1 of the Principal Determination which provides that the location where a member’s nominated family normally lives is important for deciding where the member can use recreation leave to travel. The subsection is non-legislative and administrative in nature and is removed.

Section 57 omits and substitutes paragraph 9.5.18.1.a of the Principal Determination which provides one of the circumstances where a member is not to use their travel card for a meal or night of accommodation. The paragraph is redrafted to remove a reference to the Commonwealth which is not required to aid the readers understanding of the provision and to reflect contemporary drafting styles

Sections 64 and 65 amend subsection 9.6.22.3 of the Principal Determination which sets out the conditions for a member’s eligibility for vehicle allowance for their spouse or partner’s travel. The amendments omit paragraph 9.6.22.3.c which is non-legislative and administrative in nature and is removed, and also add 2 notes which insert text previously provided by paragraph 9.6.22.3.c that is redrafted to reflect contemporary drafting styles and provide clarity to the reader.

Section 69 amends subsection 9.7.6.1 of the Principal Determination which provides that section 9.7.6 applies to a member authorised to travel by flying a private vehicle. The subsection is amended to remove a reference to the Commonwealth which is not required to aid the readers understanding of the provision. The amendment also changes the reference to ‘by normal means of travel’ to ‘by the most economical means of travel’, to promote the correct use of terminology.

Section 78 omits and substitutes section 11.2.19 of the Principal Determination which provides that under Chapter 11 Part 2 Division 4 a person is not required to repay an amount of compensation of the same kind as severe injury adjustment or additional death benefit. The section is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 79 omits and substitutes section 11.2.20 of the Principal Determination which provides that an amount of severe injury adjustment or additional death benefit repayable under sections 11.2.15 to 11.2.17 is recoverable in a court of competent jurisdiction as a debt to the Commonwealth. The section is redrafted to remove 2 references to the Commonwealth which are not required to aid the readers understanding of the provision and to reflect contemporary drafting styles.

Section 81 omits subsection 11.4.10.4 of the Principal Determination which provides that mourners travel and accommodation costs to travel overseas will not be paid for by the Commonwealth. The amendment omits subsection 11.4.10.4 which is non-legislative and administrative in nature, and also adds a note which inserts text previously provided by subsection 11.4.10.4.

Schedule 3Chapter 15 miscellaneous amendments

Section 1 omits and substitutes the table in subsection 15.1.11.3 of the Principal Determination which sets out the Christmas stand-down dates for a member on a long-term posting overseas. The table is redrafted to include days that fall on a weekend, so that members on a posting overseas in a location that does not have a standard working week are not disadvantaged in the amount of public holidays they receive.

Section 2 amends section 15.3.39 of the Principal Determination which provides additional travel benefits for members on a long-term posting overseas and their families if the member’s next posting is also a long-term posting overseas. The amendment omits the term “CDF” and substituting it with “decision maker” to provide consistency in the rule.

Schedule 4—Remote location allowances – amendments

Section 1 amends section 4.4.9.1 of the Principal Determination which sets out the rate of district allowance payable to members posted to remote locations. The amendment omits and substitutes the table in subsection 1 which has been amended to provide the updated rates of allowance for a member. The allowance rates are increased in line with the All Groups component of the Consumer Price Index for the 12 month period ending March 2021. The underlying figures are then rounded to the nearest five dollars.

Section 2 amends section 4.4.19.2 of the Principal Determination which sets out the rate of Port Wakefield allowance payable to members posted to Proof and Experimental Establishment at Port Wakefield. The amendment omits and substitutes the table in subsection 2 which has been amended to provide the updated rates of allowance for a member. The allowance rates are increased in line with the All Groups component of the Consumer Price Index for the 12 month period ending March 2021. The underlying figures are then rounded to the nearest five dollars

Section 3 amends section 4.4.24 of the Principal Determination which sets out the rate of Scherger allowance payable to members posted to RAAF Base Scherger. The amendment provides the updated rate of allowance for a member. The allowance rates are increased in line with the Transportation component of the Consumer Price Index for the 12 month period ending March 2021. The underlying figures are then rounded to the nearest five dollars

Section 4 amends section 4.4.31 of the Principal Determination which sets out the rates for Antarctic allowance payable to members posted to, or serving in, Antarctica. The amendment omits and substitutes the table which has been amended to provide the updated annual rate of allowance for a member. The allowance rates are increased based on advice from a contracted service provider.

Schedule 5Deployment allowance and additional risk life insurance amendments

Section 1 amends subsection 4.10.4.1 of the Principal Determination which provides the amount of additional risk premium that a member may be reimbursed for a life insurance policy premium they pay because of the additional risk involved in doing their duties. The subsection is amended to change the reference to ‘$2,584’ to ‘$2,636’ to increase the amount by 2% in line with the increases to ADF salary and salary related allowances.

Section 2 omits and substitutes the table in subsection 17.7.6.1 of the Principal Determination. The table sets out the daily rate deployment allowance members are eligible to receive for different operations. The amounts in the table are increased by 2% in line with the increases to ADF salary and salary related allowances.

 


Annex B

 

Defence Determination, Conditions of service Amendment Determination 2021 (No. 20)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the Determination

The purpose of this Determination is to:

·         Provide a formula to calculate the fortnightly rate of an annual rate of allowance under the Principal Determination.

·         Make technical amendments that promote the use of the correct terminology, and remove information which is no longer required as a consequence of historical amendments made to the Principal Determination. Technical amendments are routine in nature, and do not alter the underlying policy. These amendments will not change the benefits which are currently provided.

·         Make technical amendments that remove references to the Commonwealth in instances where they are not required to aid the readers understanding of the provision. A number of sections have also been redrafted to bring them into line with contemporary drafting standards, to improve readability and to remove information that is non-legislative in nature and does not need to be determined.

·         Amend the allowances for a member who is posted to a remote location. The rates are set following advice received from a contracted service provider and the consumer price index.

·         Increase the base rates of Deployment Allowance by 2%, in line with the increase to ADF salary and salary related allowances. Consistent with this, the maximum amount of reimbursement for an additional risk premium on life insurance is also increased by 2%.

Human rights implications

Assessment of compatibility

Schedules 1 to 3 of this Determination makes technical amendments to the Principal Determination and does not engage any human rights issues.

Schedule 4 of this Determination is compatible with human rights by providing an adjustment to remote location allowances for members who are serving in remote locations. Periodic updates of the rates ensure that they remain contemporary and reflect the changes in the cost of living.

Schedule 5 of this Determination is compatible with human rights by providing an increase to deployment allowance for members who are serving in warlike operations overseas and the maximum amount of reimbursement for an additional risk premium on life insurance.

Conclusion

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.