Defence Determination (Funeral costs – amendment) 2018 (No. 4)I, FIONA LOUISE MCSPEERIN, Assistant Secretary, People Policy and Employment Conditions, make the following Determination under section 58B of the Defence Act 1903.

Dated 30 January 2018

F L MCSPEERINAssistant SecretaryPeople Policy and Employment ConditionsDefence People Group

Ref18-45

Contents1 Name...................................................................................................................22 Commencement....................................................................................................23 Authority.............................................................................................................24 Schedules.............................................................................................................2

Schedule 1—Funeral and transportation costs on death amendment 3Defence Determination 2016/19, Conditions of service 3

Schedule 2—Funeral costs amendments 9Defence Determination 2016/19, Conditions of service 9

1 Name

This instrument is Defence Determination (Funeral costs - amendment) 2018 (No. 4).

2 Commencement

This instrument commences 8 February 2018.

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Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

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Schedule 1—Funeral and transportation costs on death amendmentDefence Determination 2016/19, Conditions of service

1 Chapter 11 Part 4 (Funeral costs, floral and non-floral tributes)Omit the Part, substitute:

Part 4: Funeral and transportation costs on death

11.4.1    Overview1. Financial assistance may be provided to assist members and dependants when a death

occurs.

2. This Part describes assistance that may be available on the death of a member, a former member or a dependant.

11.4.2    ContentsThis Part contains the following Divisions.Division 1 Funeral costs, floral and non-floral tributes for deceased members or former

membersDivision 2 Assistance on death of a dependant in Australia

11.4.3    Dual entitlementIf a deceased member was also a dependant of a member the conditions and benefits that apply are those set out in Division 1.

See: Division 1, Funeral costs, floral and non-floral tributes for deceased members

11.4.4    AdministrationTo be eligible for reimbursement of approved costs under this Part, the claimant must submit all relevant invoices and receipts to the Defence Community Organisation.

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Division 1: Funeral costs, floral and non-floral tributes for deceased members or former members

11.4.5    PurposeThe purpose of this Division is to provide financial assistance for funeral costs, floral and non-floral tributes to a member’s dependants when a member or a former member dies.

11.4.6    Member or former member this Division applies to1. This Division applies in relation to a deceased member or former member who was in any of

the following classes immediately before they died.

a. A member of the Permanent Forces.

b. A member of the Reserves in any of the following circumstances at the time of death.

i. On continuous full-time service.

ii. Undergoing training.

iii. Attending a parade or bivouac.

iv. The death is due to injuries suffered, or illness contracted, while serving in the ADF.

v. The member had been on overseas operational deployment within the previous 12 months.

c. A member of the Reserves or a retired member who met one of the following conditions before death.

i. The member held the rank of two-Star or above.

ii. The relevant Service Chief has requested that a benefit be provided for the member under this Part, having regard to the member's distinguished career.

d. A recipient of the Victoria Cross or the Victoria Cross for Australia.

2. The Director General Defence Community Organisation may approve a funeral at Commonwealth expense for a deceased member or former member not specified under subsection 1 if requested by the relevant Service Chief.

11.4.7    Member this Division does not apply toThis Division does not make any provision in relation to the following deceased members.

a. A member who was absent without leave at the time of death.

b. A member who died while on duty overseas and who has an overseas funeral.

Related information: Provisions for these members are in Chapter 15 Part 9 section 15.9.3, Assistance if member dies.

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11.4.8    DefinitionIn this Division, legal personal representative means either of the following.

a. The executor of the deceased member or former member's will.

b. The administrator of the deceased member or former member's estate.

11.4.9    Funeral costs1. The Director General Defence Community Organisation may approve an application for the

payment for costs related to a deceased member or former member's funeral, up to $14,000.

2. When considering whether to approve costs under subsection 1, the Director General Defence Community Organisation must have regard to the following.

a. Whether the items are culturally appropriate for the deceased member or former member.

b. The person's wishes, as communicated through the deceased member or former member's legal personal representative.

c. Any requirements of the relevant religion, faith or culture of the deceased member or former member.

3. The Director General Defence Community Organisation may approve payment of additional costs related to the funeral amount specified in subsection 1, if satisfied that there are exceptional circumstances.

4. The approved costs under this Division may be paid to any of the following people.

a. The deceased member or former member's dependant.

b. The deceased member or former member's legal personal representative.

c. The service provider.

Examples: Funeral director, minister.

11.4.10   Funeral overseas1. This section applies if both of the following conditions are met.

a. An eligible member or former member dies in Australia.

b. The deceased member or former member's family choose to have a private funeral overseas.

2. The Director General Defence Community Organisation may approve costs up to the amount specified in subsection 11.4.9.1.

3. Overseas funeral arrangements are the responsibility of the deceased member or former member's next of kin or legal personal representative.

4. Mourners' travel and accommodation costs will not be met by the Commonwealth.

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11.4.11   Travel and accommodation1. Subject to subsection 3, the Director General Defence Community Organisation may

approve travel and two night's accommodation within Australia for the following people to attend the funeral of the deceased member or former member.

a. The deceased member or former member's dependants.

b. A person to accompany the dependant if the dependant is very young, aged, has an illness or is severely distressed.

c. A family member who has been nominated by a dependant if the dependant is unable to attend the funeral.

d. The parents of the deceased member or former member.

Exceptions: Travel and accommodation will not be provided in any of the following circumstances.

1. The deceased member’s or former member's funeral will be held overseas under section 11.4.10.

2. The member died while on duty overseas, and is given an overseas funeral under Chapter 15 Part 9 section 15.9.3.

3. The person eligible for a benefit under subsection 1 lives in the location where the funeral is to be held.

2. The Director General Defence Community Organisation may approve additional accommodation if the travel requirements and funeral service times require the people approved under subsection 1 to stay at the location for an additional night.

3. Travel and accommodation must be organised using Defence business travel arrangements up to the maximum amount that would have been paid if they were eligible for travel and accommodation costs under Chapter 9.

Note: The travel and accommodation benefit payable is based on the rank of the deceased member or former member.

See: Chapter 9 Part 1, Basic travel benefits Part 5 Annex 9.5.A, Amounts for accommodation, meals and incidentals

4. The Director General Defence Community Organisation may approve a higher maximum amount payable for accommodation under subsection 3 if either of the following occurs.

a. There is no accommodation under the Defence business travel arrangements at the rate specified under Annex 9.5.A.

b. There is no accommodation under the Defence business travel arrangements at the funeral location.

5. People approved under subsection 1 will be reimbursed the cost of meals, up to the amount they would have been paid if they were eligible for meal costs under Annex 9.5.A.

Note: The cost of incidentals will not be reimbursed.

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11.4.12   Floral and non-floral tributes1. The CDF may approve floral and non-floral tributes at Commonwealth expense for a

member, for any of the following.

a. An act of commemoration at a funeral of a deceased member or former member listed in section 11.4.6.

b. An annual celebration of remembrance of a deceased member or former member listed in section 11.4.6.

c. In relation to a memorial occasion of national importance.

See: Section 11.4.6, Member or former member this Division applies to

2. The maximum amount payable for floral and non-floral tributes is $250.

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Division 2: Assistance on death of a dependant in Australia

11.4.13   PurposeThe purpose of this Division is to provide financial assistance to a member when a dependant dies.

11.4.14   Member this Division applies toThis Division applies to a member if all of the following conditions apply.

a. The member has a dependant who is a recognised dependant for Defence benefit purposes.

See: Chapter 1 Part 3 Division 2Section 1.3.83, DependantsSection 1.3.85, Dependants recognised by CDF

b. The member's dependant dies in Australia.

See also: Chapter 15 Part 9 section 15.9.3A if the member’s dependant dies overseas.

c. The dependant is not in the location where the funeral is to take place.

See also: Chapter 9 Part 3 Division 8, Compassionate travel

11.4.15   Assistance provided when a dependant dies1. The Director General Defence Community Organisation may approve assistance with the

following costs.

a. The reasonable cost of the preparation of the dependant's remains.

b. Reasonable transport costs for the deceased dependant to either of the following locations.

i. To the location in Australia where the funeral will be held.

ii. To the nearest Australian departure point when the funeral will be held outside of Australia.

Note: An Australian departure point is the Australian location with air or sea travel to the overseas location.

Exception: No transport costs are paid if the deceased dependant is at the Australian departure point.

2. The member may elect that the assistance under this section be paid to any of the following people.

a. The deceased dependant's legal personal representative.

b. The service provider.

Examples: Funeral director, minister.

c. The person who paid for the preparation or transportation of the deceased dependant.

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Schedule 2—Funeral costs amendmentDefence Determination 2016/19, Conditions of service

1 Section 11.0.2 (Contents)Omit "Funeral costs, floral and non-floral tributes", substitute "Funeral and transportation costs on death".

2 Section 15.9.3 (Benefit – funeral costs)Omit the section, substitute:

15.9.3    Assistance if member dies1. If a member dies overseas, the member's dependant or their legal personal representative

is eligible for the following.

a. The reasonable cost of preparing the remains.

b. The cost of returning the remains to Australia, if the next of kin request it.

2. The Director General Defence Community Organisation may approve assistance with either of the following costs, payable to the member's dependant or their legal personal representative.

a. If the funeral is in Australia, the cost of the funeral as provided under Chapter 11 Part 4 Division 1 section 11.4.9.

See: Chapter 11 Part 4 Division 1 section 11.4.9, Funeral costs

b. If the funeral is in an overseas location, the cost of the funeral up to AUD 14,000.

15.9.3A   Assistance if dependant diesIf a dependant dies overseas, the Director General Defence Community Organisation may approve assistance with either of the following costs up to AUD 14,000, payable to the member or their legal personal representative.

a. If the dependant is being returned to Australia, both of the following.

i. The reasonable cost of preparing the remains.

ii. The cost of returning the remains to Australia.

b. Assistance with the cost of the funeral in the overseas location.

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EXPLANATORY STATEMENTDefence Determination (Funeral costs – amendment) 2018 (No. 4)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 (AIA 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 AIA Act, as modified by section 58B of the Defence Act.

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

Chapter 11 sets out provisions dealing with compensation and benefits on death.

Chapter 15 sets out provisions dealing with living and working on long-term posting overseas.

This Determination has four purposes.

It revises the funeral benefits for deceased members or former members in Australia.

It gives more flexibility for funerals for members from a variety of religions, faiths and cultural traditions.

It provides for funeral and travel benefits on the death of a member's dependant.

It revises the funeral benefits paid when a member dies when on a long-term overseas posting.

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

Section 2 provides that this instrument commences on 8 February 2018.

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 1 sets out amendments to the Principal Determination.

Section 1 substitutes Chapter 11 Part 4 of the Principal Determination, which provided a deceased member's family financial assistance for funeral costs, floral and non-floral tributes. The new Part has the following features.

The Part overview has the following four sections.

Section 11.4.1 sets out the purpose of the Part.

Section 11.4.2 sets out the contents of the Part.

Section 11.4.3 sets out which benefits apply when a deceased member is both a member and a dependant.

Section 11.4.4 sets out an administrative process for the payment of benefits under the Part.

Division 1 provides the funeral costs, floral and non-floral tributes on the death of a member or former member. The Division is broadly similar to the former Chapter 11 Part 4 of the Principal Determination and has the following sections.

Section 11.4.5 sets out the purpose of the Division.

Section 11.4.6 describes the members and former members the Division applies to. This includes members of the Permanent Forces, members of the Reserves when they meet any of the specified circumstances, specified retired members and members who were awarded the Victoria Cross or the Victoria Cross for Australia.

Section 11.4.7 sets out that this Division does not apply to members who are absent without leave at the time of their death. The Division does not apply to members who die on duty overseas, alternative arrangements are made for them in section 15.9.3 of the Principal Determination, substituted by Schedule 2 section 2 of this Determination.

Section 11.4.8 defines a term used in this Division.

Section 11.4.9 sets out that the Director General Defence Community Organisation (DGDCO) may approve the payment of funeral costs on a member's or former member's death, up to $14,000. DGDCO has been given more flexibility in deciding what costs will be paid by the Commonwealth for the funerals of members or former members from a variety of religions, faiths and cultural traditions. There is also a provision to allow DGDCO to approve additional costs above $14,000 when there are exceptional circumstances.

Section 11.4.10 provides for a funeral benefit when a member or former member dies in Australia but the funeral is to be held overseas. The benefit is capped at the cost of an Australian funeral.

Section 11.4.11 provides travel and accommodation costs for dependants and other approved people to attend a deceased member's or former member's funeral within Australia.

Section 11.4.12 provides for the floral and non-floral tributes for specified memorial and commemoration events.

Division 2 provides arrangements on the death of a dependant in Australia. The Division has the following three sections.

Section 11.4.13 sets out the purpose of the Division.

Section 11.4.14 describes the members the Division applies to.

Section 11.4.15 sets out the benefits that may be paid on the death of a dependant. The benefits are preparation and transportation costs to the location of the funeral. For a funeral to be held overseas, the benefit is preparation and transportation to the Australian departure point.

Schedule 2 sets out amendments to the Principal Determination.

Section 1 amends section 11.0.2 of the Principal Determination, which sets out the contents of Chapter 11. The title of Part 4 is being amended to reflect the change to the title of the Part made by Schedule 1 of this Determination.

Section 2 substitutes section 15.9.3 of the Principal Determination, which provided the funeral costs payable when a member or dependant dies overseas. The section has been split into two new sections to provide clarity on the costs that are payable when the member dies or a dependant dies.

Section 15.9.3 provides the assistance that will be provided if a member dies while on a long-term overseas posting. If the member’s remains are returned to Australia, the benefit provides assistance with the cost of the preparation and returning the member’s remains, also the funeral benefits under Chapter 11 Part 4 Division 1 may also be approved. If the funeral is in the overseas location, the benefit provides assistance with the costs of the funeral up to a $14,000 which is equal to the rate payable for an Australian funeral.

Section 15.9.3A provides the assistance that will be provided if a dependant dies while accompanying a member on a long-term overseas posting. The benefit provides assistance with the cost of returning the dependant to Australia or the cost of a funeral overseas, up to $14,000.

Consultation

The Defence Community Organisation was consulted in the preparation of this Determination. The rule maker was satisfied that external consultation was not required. The instrument increases the level of assistance provided to members of the Australian Defence Force and their dependants.

Authority: Section 58B of the Defence Act 1903

Statement of Compatibility with Human RightsPrepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Determination (Funeral costs – amendment) 2018 (No. 4)

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 amends Defence Determination 2016/19, Conditions of service. It has four purposes.

It revises the funeral benefits for deceased members or former members in Australia.

It gives more flexibility for funerals for members from a variety of religions, faiths and cultural traditions.

It provides for funeral and travel benefits on the death of a member's dependant.

It revises the funeral benefits paid when a member dies when on a long-term overseas posting.

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.

The protection of a person's right to care for dependants

The protection and assistance accorded to the family engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance to families, including their responsibility for the education and care of dependent children.

Funeral benefits are not a routine condition of service in Australian society. Benefits already exist for funeral costs to be paid for an Australian Defence Force (ADF) member or former member. This Determination gives more flexibility for funerals for members or former members from a variety of religions, faiths and cultural traditions by providing the decision maker more flexibility in deciding what funeral costs will be paid by the Commonwealth.

This Determination also extends some benefits to member's dependants. These benefits provide for the payment of the costs of preparation of the dependant's remains and the transportation of those remains to the location of the funeral. Because of the ADF's policy of regularly posting members to locations around Australia and overseas, it is very possible that when a death occurs, the family is living in a location that is not the one where their extended family lives. The family could choose to have the funeral in the location they regard as their "home town". This need for travel imposes additional costs at a very stressful time.

Conclusion

This Determination is compatible with human rights because it advances the protection of human rights.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions