Defence Determination 2017/38, Overseas consequential and miscellaneous amendments

I, PHILLIP JOHN HOGLIN, ActingAssistant Secretary People Policy and Employment Conditions, make this Determination under section 58B of the Defence Act 1903.
Dated 24 October 2017
P J HOGLIN
Acting Assistant Secretary
People Policy and Employment Conditions
Defence People Group

PAGE INTENTIONALLY LEFT BLANK

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Name
1. / This Determination is Defence Determination 2017/38, Overseas consequential and miscellaneous amendments.
2. / This Determination may also be cited as Defence Determination 2017/38.
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Commencement
1. / Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 / Column 2 / Column 3
Provisions / Commencement / Date/Details
1.The whole of this instrument / 2 November 2017
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
2. / Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
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Authority
This instrument is made under section 58B of the Defence Act 1903.
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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Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

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Schedule1—Amendments consequential to changes made by Defence Determination 2017/18

Defence Determination 2016/19, Conditions of service

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Subsection 1.6.1.5 (Dual entitlement – member's adult dependant is also a member), table
Omit table item 3, substitute:
3. / Overseas living allowances – member posted before 1July 2017 / Chapter 15 Part 2
3A. / Overseas living allowances – member posted on or after 1July 2017 / Chapter 15 Part 2A
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Subsection 1.6.1.5 (Dual entitlement – member's adult dependant is also a member), table
Omit table item 4, substitute:
4. / Hardship allowance – member posted before 1 July 2017 / Chapter 16 Part 2
4A. / Location allowance – member posted on or after 1July 2017 / Chapter 16 Part 2A
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Subsection 1.6.1.5 (Dual entitlement – member's adult dependant is also a member)
At the end, insert:
See: Chapter 12 Part 3
Section 12.3.9A, Member posted before 1 July 2017
Section 12.3.9B,Member posted on or after 1 July 2017
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Subsection 3.7.2.2 (Benefits continue in some situations)
At the end, insert:
See: Chapter 12 Part 3
Section 12.3.9A, Member posted before 1 July 2017
Section 12.3.9B, Member posted on or after 1 July 2017
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Subsection 3.7.3.2 (Benefits for dependants), table item 9

Omit "Chapter 15 Part 2", substitute "Chapter 15 Part 2 and Part 2A".

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Subsection 5.4.17.1 (Service in a remote location), Notes

Omit note a., substitute:
a. / Additional recreation leave credit for service at overseas hardship posts is authorised by the following.
i. / Chapter 16 Part 3 and Annex 16.A, for members posted before 1 July 2017.
ii. / Chapter 16 Part 3A, for members posted on or after 1 July 2017.

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Subsection 6.2.4.2 (Private vehicles – loss on sale)

At the end ofsubsection 6.2.4.2, insert:
Note: A member who is posted overseas is not eligible for reimbursement under this section.

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Section 12.3.12 (Ordinary period of posting), Exception

Omit "Annex 16.A", substitute "Annex 16.A or column 2 of Annex 16.B".

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Section 12.3.12 (Ordinary period of posting), Cross reference note

Omit the note, substitute:
See: Chapter 16
Annex 16.A, Hardship post conditions of service – member posted before 1 July 2017
Annex 16.B, Hardship post conditions of service – member posted on or after 1 July 2017

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Subsection 14.1.1.2 (About relocations to and from overseas postings), table

Omit table item 5, substitute:
5. / Loss on sale of private vehicle. / Part 3, Removals
5A. / Storage of private vehicle.

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Subsection 14.2.7.4 (Outlay advance — payment), Cross reference note

Omit the note, substitute:
See: Chapter 15
Part 2, Overseas living allowances – member posted before 1 July 2017
Part 2A, Overseas living allowances – member posted on or after 1 July 2017

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Section 14.3.15 (Storage rather than sale of vehicle), Heading

Omit from heading "rather than sale".

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Subsection 14.3.15.1 (Storage of vehicle)

Omit "A member who is eligible for a reimbursement for loss on sale of a vehicle, may choose to store the vehicle instead", substitute "A member posted overseas may choose to store a vehicle".

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Subsection 14.5.3.1 (Settling in at the posting location), Cross reference note

Omitthe note, substitute:
See: Chapter 15
Part 2, Overseas living allowances – members posted before 1 July 2017
Part 2A, Overseas living allowances – members posted on or after 1 July 2017

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Paragraph 14.6.9.a (Overseas living allowances), Cross reference note

Omit the note, substitute:
See: Chapter 15
Part 2, Overseas living allowances – member posted before 1 July 2017
Part 2A, Overseas living allowances – member posted on or after 1 July 2017

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Section 15.0.2 (Contents)

Omit the entry for Part 2, substitute:
Part 2 / Overseas living allowances – member posted before 1 July 2017
Part 2A / Overseas living allowances – member posted on or after 1 July 2017

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Subsection 15.3.40.8 (Additional travel on long-term posting to a second overseas location)

Omit the subsection, substitute:
8. / A member is eligible to receive overseas living allowances for unused leave accrued at the old posting location when they meet both of the following conditions.
a. / The member was posted before 1 July 2017.
b. / The member is on leave in Australia between overseas postings.
See: Part 2 Division 6 section 15.2.34, Payment of overseas living allowances for unused leave

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Subsection 16.4.8.1 (Posting longer than the ordinary posting period), Related information note

Omit "Annex 16.A, Part 1, Hardship post conditions of service for specific posting locations", substitute "Annex 16.A Part 1 or Annex 16.B for specific posting locations".

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Subsection 16.4.9.2 (Posting shorter than the ordinary posting period), table item 3

Omit "Annex 16.A", substitute "Annex 16.A or Annex 16.B".

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Subsection 16.4.9.3 (Posting shorter than the ordinary posting period)

At the end of subsection 16.4.9.3, insert:
See:
Annex 16.A, Hardship post conditions of service – member posted before 1 July 2017
Annex 16.B, Hardship post conditions of service – member posted on or after 1 July 2017

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Schedule2—Amendments

Defence Determination 2016/19, Conditions of service

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Subsection 3.7.3.2 (Benefits for dependants), Cross reference note

Omit the note.

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Section 14.2.1 (Overview), Note

Omit "Integrated Travel Solutions", substitute "Defence Travel".

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Subsection 14.4.5.2 (Travel benefit)

Omit "Integrated Travel Solutions", substitute "Defence Travel".

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Subsection 14.4.8.1 (Alternative travel modes and routes)

Omit "Integrated Travel Solutions", substitute "Defence Travel".

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Section 14.5.4.3 (Settling out of the posting location), Note

Omit "settling-in", substitute "settling-out".

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Section 15.2.2 (Contents)

Omit "and Annex".

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Section 15.2.39 (Air freight of foodstuffs – Vietnam)

Omit the section.

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Section 15.2A.2 (Contents)

Omit "and Annex".

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Subsection 15.3.7.4 (Public transport), Note

Omit "DFAT", substitute "the Department of Foreign Affairs and Trade".

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Section 15.7.1A (Member this Division applies to), heading

Omit "Division", substitute "Part".

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Section 15.7.1A (Member this Division applies to)

Omit "Division", substitute "Part".

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Subsection 16.2.4.5 (Payment of hardship allowance), Note

Omit "Division 1 section 16.1.4", substitute "Part 1 section 16.1.5".

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Subsection 16.4.11.2 (Offsetting assisted leave travel)

Omit the subsection, substitute:
2. / The CDF must consider all the following criteria.
a. / The purpose of the leave fare.
b. / The facilities and environment at the destination.
c. / Any travel restrictions that may apply to the destination.
See: Chapter 1 Part 3 Division 1 section 1.3.68, Restricted destination

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Subsection 16.4.12.3 (Proof of travel)

Omit the subsection, substitute:
3. / Written evidence may include any of the following.
a. / A dated exit or entry stamp in a passport.
b. / An airline boarding pass that states the date and destination of the flight.
c. / Written confirmation from a travel agent.
Note: An airline ticket is not sufficient evidence for proof of travel.

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Section 16.4.14 (Alternative leave centre – leave centre ceases to be suitable)

Omit the section, substitute:

16.4.14Alternative leave centre – leave centre ceases to be suitable

1. / The Director Military Conditions and Housing Policy may decide that a leave centre is temporarily unsuitable for use when the leave centre is affected by any of the following.
a. / War.
b. / Civil disorder.
c. / Natural disaster.
d. / A similar event.
2. / If a leave centre is unsuitable under subsection 1, the Director Military Conditions and Housing Policy will substitute a leave centre that is comparable in cost and facilities for the unsuitable leave centre.
3. / The Director Military Conditions and Housing Policy will review the decision to substitute a leave centre after six months.

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Subsection 16.5.6.2 (Accommodation – conditions for payment of costs)

Omit the subsection, substitute:
2. / When making the decision under subsection 1, the CDF must consider any advice from these sources.
a. / For travel from Australia – Defence Travel.
b. / For travel to Australia – the travel agent contracted by the post, or Defence Travel.

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Subsection 16.8.3.1 (Allowances for selected Defence Attachés – ADF only)

Omit the subsection, substitute:
1. / This section applies to a member on a long-term posting overseas as one of the following.
a. / The Defence Attaché Kabul.
b. / The Defence Attaché Baghdad.

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Section 16.8.5 (Attraction allowance for Papua New Guinea)

Omit the section, substitute:

16.8.5Attraction allowance for Papua New Guinea

1. / A member on long-term posting to Papua New Guinea receives an attraction allowance at the rate of AUD 10,000 a year.
2. / The allowance is payable to the member on a pro rata fortnightly basis.
Note: This amount is subject to income tax.

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EXPLANATORY STATEMENT

Defence Determination 2017/38

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 (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, as modified by section 58B of the Defence Act.

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

  • Chapter1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions.
  • Chapter3 sets out provisions dealing with salaries and bonuses.
  • Chapter5 sets out provisions dealing with leave.
  • Chapter6 sets out provisions dealing with relocations on posting in Australia.
  • Chapter 12 sets out provisions dealing with overseas conditions of service.
  • Chapter14 sets out provisions dealing with relocating to or from long-term posting overseas.
  • Chapter 15 sets out provisions dealing with living and working on long-term posting overseas.
  • Chapter 16 sets out provisions dealing with overseas hardship locations.

This Determination has the following three purposes.

  • It makes amendments to the Principal Determination consequential to changes made by Defence Determination 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances) amendment (Defence Determination 2017/18). Defence Determination 2017/18 gave effect to the measure handed down on 09 May 2017 as part of the 2017-18 Budget as it applies to the ADF. Budget Measure – Budget Paper No.2, 2017-18, Part 2: Expense Measures was a Cross Portfolio item titled ‘Overseas Allowances for Australian Government Employees – efficiencies’(the Review).
  • It removes a redundant provision to freight foodstuffs to Vietnam.
  • It makes a number of technical amendments to the Principal Determination.

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

Section 2 is the commencement provision for the Determination and includes a table setting out the details of the commencement of sections of the Determination. Column 1 of the table sets out the provisions in numbered items, column 2 sets out the commencement and column 3 sets out date/details. Information in column 3 does not form part of the Act, so information can subsequently be inserted in the column (or edited) in a published version of the Determination.Item 1 in the table provides that the whole of this Determination commenceson 2 November 2017.

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 1sets out amendments to the Principal Determination consequential to Defence Determination 2017/18.

Sections 1 to 6, 8to 11, 14to 16 and18 to 20 amend various sections within the Principal Determination to include or amend references to various provisions that have been inserted or amended by Defence Determination 2017/18.

Section 7 inserts an administrative note into section 6.2.4 of the Principal Determination, which provides that members who are on a long-term posting overseas are not eligible for a reimbursement for the financial loss of selling a vehicle under section 6.2.4. The provisions for members posted before 1 July 2017 are set out in section 14.3.14 of the Principal Determination.Members who were posted on or after 1 July 2017 are no longer be eligible for the reimbursement. The change alignswith the outcomes of the Review.

Sections 12 and 13 amend section 14.3.15 of the Principal Determination, which provides for the storage of vehicles at Commonwealth expense when a member is on long-term posting overseas. This section is being amended to remove reference to the sale of a vehicle. The provisions relating to the sale of a vehicle for members posted before 1 July 2017 is provided under section 14.3.14 of the Principal Determination.

Section 17substitutes subsection 15.3.40.8 of the Principal Determination, which provides for the payment of overseas living allowances for unused accrued leave credits when the member is on leave in Australia between overseas postings. This provision is being amended to specify thatthe payment of the allowances for accrued leave only applies to members posted before 1 July 2017. This provision does not apply to members posted on or after 1 July 2017.The change alignswith the outcomes of the Review.

Schedule 2 sets out amendments to the Principal Determination

Schedule 1 amends subsection 3.7.3.2 of the Principal Determination by removing a see note that was inserted into the section by Defence Determination2017/18. The see note was included in the wrong section of the Principal Determination and is being included in the correct section of the Principal Determination by section 4 of Schedule 1.

Sections 2, 3, 4 and 16 amend sections 14.2.1, 14.5.4 and 16.5.6 of the Principal Determination. These sections have been amended to replace the Directorate name of "Integrated Travel Solutions" with "Defence Travel".

Section 5 amends an administrative note in section 14.5.4 of the Principal Determination, which sets out the settling out provisions for members leaving an overseas posting location. This section amends a typographical error by replacing the term "settling-in" with the correct term of "settling-out".

Sections 6 and 8 amend sections 15.2.2 and 15.2A.2 of the Principal Determination, which provide the contents for Chapter 15 Part 2 and Part 2A. These sections are being amended to remove references to Annexes that are no longer provided in the Parts.

Section 7 omits section 15.2.39 from the Principal Determination which provided that a member on long-term posting in Vietnam may be reimbursed airfreight costs to transport essential food to Vietnam. This section is no longer required due to the improved quality of food available in Vietnam.

Section 9 amends an administrative note in subsection 15.3.70.4 of the Principal Determination by replacing the acronym "DFAT" with the full Department name of the Department of Foreign Affairs and Trade.

Sections 10 to 12 amends sections 15.7.1A and 16.5.4 of the Principal Determination to correct typographical errors by replacing the term "Division" with "Part".

Section 13amends subsection 16.4.11.2 of the Principal Determination, which sets out criteria that the decision-maker must consider when approving assisted leave travel to a country that is different to the specified countries. The subsection has been amended to provide that the decision-maker must consider if there are any travel restrictions in place on the country.

Section 14 amends subsection 16.4.12.3 of the Principal Determination, which provides what forms of written evidence may be provided for proof of travel. The subsection is being amended to clarify what written evidence may be considered as evidence.

Section 15substitutes section 16.4.14 of the Principal Determination, which provides that the decision-maker may approve an alternative leave centre when a specified leave centre ceases to be suitable. The section has been revised to clearly set out when the change in leave centre can be made. It has also directly confers thedecision-making power to the Director Military Conditions and Housing Policy.

Section 17 amends subsection 16.8.3.1 of the Principal Determination which sets out which members are eligible for the payment of allowances for selected Defence Attachés. The subsection is being amended to specify that the allowance is payable to members who are appointed to the positions of Defence Attaché Kabul or Defence Attaché Baghdad.

Section 18 amends section 16.8.5 of the Principal Determination which sets out the attraction allowance for members posted to Papua New Guinea. The section is being amended to provide that the annual allowance is payable to the member on a pro rata fortnightly basis.

Consultation

Consultation and agreement with International Policy Division was undertaken in relation to Schedule 2 section 6.

No external consultation was undertaken in relation to this Determination in accordance with section 17 of the Legislation Act 2003 before this Determination was made as it is a minor or machinery nature and does not alter existing arrangements. It makes minor amendments and technical adjustments.

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 Determination 2017/38, Overseas consequential and miscellaneous amendments

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

  • It makes amendments to the Principal Determination consequential to changes made by Defence Determination 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances) amendment (Defence Determination 2017/18). Defence Determination 2017/18 gave effect to the measure handed down on 09 May 2017 as part of the 2017-18 Budget as it applies to the ADF. Budget Measure – Budget Paper No.2, 2017-18, Part 2: Expense Measures was a Cross Portfolio item titled ‘Overseas Allowances for Australian Government Employees – efficiencies’.
  • It removes a redundant provision to freight foodstuffs to Vietnam.
  • It makes a number of minor technical amendments to the Principal Determination.

Human rights implications