Defence Determination 2013/56, Interdependent partner, recreation leave and travel costs – amendment

I, CHRISTON SCOTT CHAMLEY, Acting Director General People Policy and Employment Conditions, make this Determination under section 58B of the Defence Act 1903.
Dated 25 November2013
C S CHAMLEY
Acting Director General
People Policy and Employment Conditions
Defence People Group

PAGE INTENTIONALLY LEFT BLANK

1
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Citation
1. / This Determination is Defence Determination 2013/56, Interdependent partner, recreation leave and travel costs – amendment.
2. / This Determination may also be cited as Defence Determination 2013/56.
2
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Commencement
This Determination commences on2 December 2013.
3
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Amendment
Defence Determination 2005/15, Conditions of Service, as amended,1 is amended as set out in this Determination.
4
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Subclause 1.3.77A.2 (Interdependent partner), paragraphs a to e
substitute
a. / Director General Navy People.
b. / Director Navy Personnel Policy.
c. / Director Navy Employment Conditions.
d. / Director General Personnel – Army.
e. / Director Personnel Policy – Air Force.
f. / Deputy Director Personnel Policy – Air Force.
g. / Deputy Director Service Conditions – Air Force.
h. / Deputy Director Personnel Concepts and Policy – Air Force.
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Subclause 5.2.19B.1 (Application to purchase recreation leave)
after subclause 5.2.19B.1, insert
Exception: A member cannot apply to purchase leave in a period when they are on any of the following kinds of service.
a. / Warlike service.
b. / Non-warlike service.
c. / Any foreign service which could reasonably be expected to be eligible for an income tax exemption under section 23AG of the Income Tax Assessment Act 1936 if it extended beyond 90 days.
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Paragraph 5.2.32.2.b (Payment instead of recreation leave), See
substitute
See: Subclause 4 for the meaning of salary under this clause.
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Annex 13.3.A Part 1 (Travel costs), table item 65
after table item 65, insert
65A. / Rwanda / RWF / 98,419 / 26,052
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Annex 13.3.A Part 2 (Travel costs), table item 65
after table item 65, insert
65A. / Rwanda / RWF / 78,156 / 23,157
NOTE
1. / Defence Determination 2005/15, as amended to date. For previous amendments see Note
to Defence Determination 2013/1 and amendments made by Defence Determinations
2013/1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50,
51, 52, 53, 54 and 55.

1

EXPLANATORY STATEMENT

Defence Determination 2013/56

This Determination amends Defence Determination 2005/15, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Defence Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AIA Act). Determinations made under section 58B of the Defence Act are disallowable non-legislative instruments and are subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.

Chapter 1 of the Principal Determination sets out provisions dealing with definitions for members of the Australian Defence Force (ADF), and Chapter 3 sets out arrangements for allowances.

This Determination has four purposes.

  • It amends the list of decision makers to the power to approveinterdependent partnerships.
  • It introduces Rwanda as a location attracting short-term travel costs.
  • It prevents members who are exempt from income tax from having access to purchased recreation leave.
  • It corrects a minor error in a cross reference.

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

Clause 2 of this Determination provides that the Determination commences on 2 December 2013.

Clause 3 specifies that the amendment is made to the Principal Determination, as amended.

Clause 4 amendssubclause 1.3.77A.2 of the Principal Determination to amendthe list of decision makers to approve interdependent partnerships in exceptional circumstances.The amendmentincludes two new positions as decision makers for Navy, changes position titles within Air Force and adds an additional position as a decision maker for Air Force. The additional decision makers will give greater administrative flexibility.

Clause 5inserts anexception from the class of members who are able to purchase recreation leave into subclause 5.2.19B.1 of the Principal Determination. Purchased recreation leave allows members to increase the amount of recreation leave available to them, by making repayments, and spreading the cost of the leave over a period. The new exception prevents members who are on operational deployment or other situations overseas which are normally exempt from the requirement to pay income tax from purchasing recreation leave. Members in this situation are not in a position to take leave that they purchase, and they will be eligible to apply for purchased recreation leave on their return.

It is not considered to be value for money to permit the purchase of leave at a time when that leave will attract a 'windfall' tax exemption. The purpose of the tax exemption is to benefit those serving Australia's interests in an overseas location. It is not intended to reward members on ordinary service back in Australia when they take leave.

Clause 6 substitutes the cross reference in paragraph 5.2.32.2.b of the Principal Determination. The cross reference refers the reader to a related definition. The location of the definition has been corrected.

Clauses 7 and 8 amend Annex 13.3.A of the Principal Determination, which sets out maximum rates of meal and incidental costs for members who travel overseas on short-term duty.

Clause 7 inserts a new item 65A in the table in Part 1 of Annex 13.3.A of the Principal Determination. It provides new travel rates for members with the rank of Brigadier or higher who travel to Rwanda.

Clause 8 inserts a new item 65A in the table in Part 2 of Annex 13.3.A of the Principal Determination. It sets out new Rwanda travel rates for members ranked Colonel or below.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions are subject to merits review under the ADF redress of grievance system, including an appeal to the Defence Force Ombudsman.

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 2013/56, Interdependent partner, recreation leave and travel costs – amendment

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

This Determination makes amendmentsto Defence Determination 2005/15, Conditions of Service.

This Determination has four purposes.

  • It amends the list of decision makers to the power to approve interdependent partnerships.
  • It introduces Rwanda as a location attracting short-term travel costs.
  • It prevents members who are exempt from income tax from having access to purchased recreation leave.
  • It corrects a minor error in a cross reference.

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.

Travel benefits

This Determination provides travel benefits, to ensure that Australian Defence Force (ADF) members receive just and favourable remuneration in accordance with Article 7.

The ADF operates internationally, and at times sends members to carry out tasks across the world. It is important that a short-term visitor is supported so that they can feed and accommodate themselves in the temporary location. The amount that is reasonably required to do this varies depending on the location. This Determination ensures short-term visitors to Rwanda have an appropriate amount to spend on meals and incidentals.

Purchased recreation leave

This Determination also limits access to purchased recreation leave for members serving overseas.

Legitimate objective: ADF members have the same needs as any other members of the community to care for their children in school holidays, and to follow their own recreational interests. ADF conditions of service include quite generous leave arrangements. Nevertheless members may want more leave to be available. Purchased recreation leave is a way of achieving this.

Reasonable, necessary and proportionate: Members who are overseas on a deployment do not have the same general access to recreation leave as members in Australia. On the member's return to Australia they are in a better position to assess whether they have enough recreation leave credit for their personal needs, what additional amount they need, and agree when that leave will be taken. Leave purchased within Australia is taxed at the usual rates, avoiding the windfall gain that would be obtained by a member who accrued the leave while special taxation exemptions applied.

Interdependent partner

The amendments to the list of decision makers for interdependent partnershipsdoes not affect who may fall under that definition. It merely includes additional decision makers who may approve an interdependent partnership and it also reflects changes in the title and responsibilities of those Air Force officers who may decide exceptional cases.

Conclusion

This Determination is compatible with human rights. The changes to travel benefits advance the protection of human rights. To the extent that the changes to purchased recreation leave may limit human rights, those limitations are reasonable, necessary and proportionate.

Christon Scott Chamley, Acting Director General People Policy and Employment Conditions