Defence Determination, Conditions of service Amendment (COVID-19 response) Determination 2020 (No. 7)

Several concepts are central to understanding the instrument. “Pattern of Reserve service” is defined in the new section 4.9.18 as the times a Reserve member has agreed with their supervisor they would attend for duty. This concept is used to calculate the Reserve service payment when a member cannot work that pattern due to COVID-19. “Required to isolate” is given an expansive definition that includes a requirement under a law or direction of a State or Territory, not just a Commonwealth direction. The note references the general definition in section 1.3.66A of the Determination. “Reserve allowance” is defined by reference to DFRT Determination 2013 No. 11, ADF Allowances, meaning the payment rate is not self-contained in this instrument but depends on another statutory instrument. For overseas amendments, “evacuation” is used but not redefined; the instrument instead expands eligibility for evacuation-related benefits. The test for eligibility is now based on being “unable to return to their posting location as a consequence of COVID-19 control measures” rather than having received an evacuation flight. That is a significant shift: it covers those who left the posting location before an official evacuation, or who never left but are now in Australia and cannot go back. “Reasonable temporary accommodation” is bounded by a 30 km radius from the expected work location in Australia. “Own home” is used as an exclusion: if the person already has a home available in that location, they get no accommodation benefit. The “larder establishment payment” is a one-off payment (not per day) for someone required to evacuate, but not for someone who “permitted to evacuate” or voluntarily left. “Cessation of overseas living allowances” and “cessation of hardship and location allowance” provisions remove the previous trigger of having received an evacuation flight; instead, they apply when the member left the posting location. These concepts together create a system of entitlement that is conditional on a reasonable belief by a commanding officer (for Reserve payments) or on objective criteria (for overseas benefits), and that interacts with other parts of the broader Determination.

The domestic amendments affect members of the Reserve Forces who are not on continuous full-time service. That includes Army Reserve, Navy Reserve, and Air Force Reservists who have agreed to a pattern of service. Their employers (if any) may be indirectly affected because the Reserve service payment is intended to replace income lost from Reserve service, not from civilian employment. Commanding officers are directly affected: they must form a “reasonable belief” that a member was exposed to an infectious disease in the course of service, or that a member is unable to work their pattern of Reserve service for a reason relating to COVID-19 control. This imposes an administrative burden on commanders and creates risk of inconsistent application. The overseas amendments affect a wider group: members on long-term overseas postings, their dependants (including those who are not members themselves), and personnel who were evacuated. The amendments also cover members who were not evacuated but are in Australia and cannot return to their posting location due to COVID-19 control measures. This expansion means that personnel who sought their own way back to Australia before an official evacuation order may now qualify for accommodation and meal supplement allowances. Dependants are especially affected: they can claim accommodation in a location within 30 km of where the member would work, but only if they do not have an own home available in that location. If two or more dependants from the same family group are being accommodated, they must live in the same location, which may limit individual choice. The amendments also affect members who were evacuated from China between 29 January 2020 and 10 February 2020, giving them a later end date for meal supplement allowance (2 May 2020). Administrators within Defence, particularly the Director of Attaché and Overseas Management, gain discretion to approve accommodation locations for dependants without an available own home. State and territory governments are indirectly affected because the definition of “required to isolate” incorporates their laws and directions, meaning their public health orders determine eligibility for some Reserve payments.

The instrument creates new rights to payments and accommodation but also imposes duties and limitations. For Reservists, the key right is to a Reserve service payment under four conditions: (1) exposure to an infectious disease during service (commanding officer must reasonably believe) and required to isolate; (2) after a Defence activity when required to isolate; (3) inability to work pattern of Reserve service due to COVID-19 control; or (4) diagnosed with COVID-19. The payment is calculated as the salary and Reserve allowance the member would have received for the service. However, the payment is capped: no more than the equivalent of 10 days salary and Reserve allowance per pay period. A member cannot receive the payment for the same period that they are receiving salary or wages or are on medical absence. Only one payment under the Division can be received at a time. Commanding officers have a duty to first consider work-from-home arrangements as an alternative to payment. For overseas personnel, the rights include: eligibility for an economy class evacuation flight from their location to the nearest capital city (not the posting location), and for a return flight after the emergency ends. They are also eligible for reasonable commercial accommodation with cooking facilities during the isolation period, plus an additional 14 days of accommodation after isolation ends (but no meal supplement allowance during those additional 14 days unless expressly provided). Ongoing accommodation for those unable to return to posting is provided under section 14A.1.10, with limits: if Defence books the accommodation, the member must pay a contribution calculated as the weekly cost less a capped amount ($995, $1,250, or $1,920 depending on family size). If the member books, they are reimbursed the lesser of the actual cost or that cap. The larder establishment payment of $297 (adult) or $149 (child) is a one-off payment for those required to evacuate. There is also a right to storage of motor vehicles (now plural) in the overseas location, and education assistance continues even without an evacuation flight. Duties include: the member must not receive a double benefit; dependants from the same family must live in the same location; and the member must not have an own home available in the location to get accommodation. The instrument also removes the previous duty to have received an evacuation flight to qualify for cessation of allowances; now merely leaving the posting location is sufficient.

The instrument does not itself create any penalty provisions. There are no fines, demerits, or criminal offences stated in the text. However, the Reserve service payment and overseas benefits are public money entitlements administered under the Defence Act and subordinate instruments. Overpayments or fraudulent claims would likely be recoverable under the broader legal framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act) or general administrative law principles. For example, a member who claims a Reserve service payment while also receiving civilian salary for the same period would breach section 4.9.24(1)(a) and would not be eligible; if they had already been paid, recovery action could be taken. The commanding officer’s “reasonable belief” is a key gatekeeper; if that belief is found to be unreasonable, the payment could be set aside on review. There are no internal review mechanisms mentioned in this instrument, but the Determination as a whole likely has review pathways (e.g., under the Defence (Inquiry) Regulations). The overseas benefits are also subject to administrative oversight: if a member books accommodation they are not entitled to because they own a home in the location, the reimbursement could be refused or clawed back. The removal of the incidentals payment (section 14A.1.13) means that benefit no longer exists, reducing both rights and potential disputes. While there are no direct penalties, the risk of overpayment recovery creates a compliance burden on members to accurately report their circumstances, and on administrators to verify eligibility. The instrument also increases the discretion of the Director of Attaché and Overseas Management to approve alternative accommodation locations for dependants, which could lead to unequal treatment across cases but also reduces the risk of rigid penalties.

The instrument operates within a hierarchy of Defence legislation. Its authority is section 58B of the Defence Act 1903, which empowers the Minister or delegate to make determinations about conditions of service. The amendments modify the Defence Determination 2016/16, which itself is a consolidated instrument that incorporates many other references. The domestic amendments explicitly reference DFRT Determination 2013 No. 11 (ADF Allowances) for the definition of “Reserve allowance” and DFRT Determination 2017 No. 2 (Salaries) for the definition of “salary”. This means that changes to those DFRT determinations would automatically affect the payment rates under this instrument, without requiring an amendment to this instrument. The overseas amendments reference the broader Determination’s provisions on evacuation flights and dependant travel, and rely on the same DFRT references. The instrument also interacts with state and territory public health laws and directions: the definition of “required to isolate” explicitly includes a requirement under a law or direction of a State or Territory. This means that a Reserve member who is required to isolate under a NSW public health order, for example, would be eligible for a Reserve service payment even if no Commonwealth direction exists. However, this also creates inconsistency across jurisdictions: a member in Tasmania during a border closure may qualify, while a member in a state without such a direction may not. The instrument also interacts with the broader Determination’s sick leave provisions: section 3.2.13 provides Reserve salary for illness acquired during service, and the new Division excludes payment if the member is receiving that salary. The overseas amendments interact with the general travel and accommodation provisions in Chapter 14A, and with the concept of “posting location” which is defined elsewhere in the Determination. The instrument does not interact with civilian employment law, but it does affect the income of Reservists who may also have civilian employers; the payment is intended to replace lost Reserve pay, not civilian pay. No interaction with the Fair Work Act or superannuation law is mentioned.

This instrument is itself an amendment to the Defence Determination 2016/16, Conditions of service. It was made on 27 March 2020 by Fiona Louise McSpeerin, Assistant Secretary, People Policy and Employment Conditions, under delegation from the Minister. The instrument is titled “Defence Determination, Conditions of service Amendment (COVID-19 response) Determination 2020 (No. 7)”, indicating it is the seventh in a series of COVID-19 response amendments. The source text does not provide the full amendment history of the parent Determination or of other COVID-19 response determinations. However, we can infer that the parent Determination has been amended many times since 2016, and that this particular instrument is a temporary measure in response to the pandemic. The domestic amendments alter existing sections 1.3.29B (isolation period) and 4.9.17 (health support allowance), and insert a new Division 4.9.18-4.9.24. The overseas amendments replace or substitute numerous sections in Chapter 14A, including sections 14A.1.4, 14A.1.5, 14A.1.7, 14A.1.8, 14A.1.9, 14A.1.10, 14A.1.11, 14A.1.12, and 14A.1.13, as well as headings and cross-references. The instrument removes the “incidentals payment” entirely (section 14A.1.13). The larder establishment payment is expanded from previous versions: the new section 14A.1.12 specifically limits it to those required to evacuate, not permitted evacuees. The instrument also changes the heading of Division 3 in Chapter 14A from “Required to evacuation - additional benefits” to “Additional ongoing benefits”, reflecting that eligibility no longer depends on having received an evacuation flight. The instrument commences on the day after registration (presumably 28 March 2020), and there is no sunset clause in the text, so it remains in force until further amended or repealed. Given the temporary nature of COVID-19 measures, many such provisions have since been revoked or replaced, but that history is not in the source.

The source text contains no reference to any litigation. The instrument is a delegated legislative instrument, not a court decision. As of the date of writing, there have been few reported cases challenging the conditions of service determinations under the Defence Act. However, the instrument could be the subject of judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the common law. Potential grounds for challenge might include: whether the commanding officer’s “reasonable belief” was unreasonable in a particular case; whether the definition of “required to isolate” is inconsistently applied across states; or whether the cap on Reserve service payment (10 days per pay period) is arbitrary. No such case is identified in the instrument. The instrument’s reliance on state and territory health directions could also lead to constitutional questions about inconsistency under section 109 of the Constitution, but that has not been tested. The instrument does not create a cause of action for members; it merely provides entitlements. A member aggrieved by a denial of a Reserve service payment could seek merits review under internal Defence mechanisms, or potentially appeal to the Administrative Appeals Tribunal (now the AAT). The absence of litigation in the instrument does not mean none exists externally, but the analyst cannot invent it. Given the instrument’s narrow scope and the small number of affected personnel (Reservists and overseas-posted members), large-scale litigation is unlikely. The instrument was made early in the pandemic, and many such provisions were applied administratively without challenge. The analyst notes that the instrument’s precise language aims to reduce ambiguity and thus reduce litigation risk.

Several provisions create traps for unwary members and administrators. First, the Reserve service payment is capped at “the equivalent of 10 days salary and Reserve allowance for a pay period.” This means that if a member is required to isolate for 14 days, they will only receive 10 days pay for that pay period. The cap applies per pay period, so a member could potentially receive 10 days in one period and then more in the next if the isolation continues, but the note says “must not receive more than the equivalent of 10 days salary and Reserve allowance for a pay period”, so the cap is per period. Second, the member cannot receive the payment if they are receiving “salary or wages” from any source, not just Defence; this catches those who have civilian employment covering the same period. Third, the member is only eligible for one payment under the Division at a time, which means if they qualify under multiple triggers (e.g., exposure and diagnosis), they still get only one payment. Fourth, the commanding officer must “reasonably believe” the member was exposed to an infectious disease in the course of service; this is a subjective test that could be difficult to meet if the member was exposed off-duty. Fifth, the overseas amendments require evacuation flights to go to the “nearest capital city to the location they will live in Australia”, not to their hometown. This could strand a member in a city far from their intended residence. Dependants from the same family must travel to the same capital city, reducing flexibility. Sixth, the additional 14 days accommodation after isolation does not include meal supplement allowance unless expressly provided, which could lead to unexpected costs for members. Seventh, the larder establishment payment is only for those “required to evacuate”. A member who “permitted to evacuate” (i.e., who left before an order) gets no such payment. Eighth, for ongoing accommodation under section 14A.1.10, a person is not eligible if they have an own home available in the location; owning a home elsewhere is fine, but if it is in the same city, they must use it. Ninth, the contribution formula for Defence-booked accommodation in new section 14A.1.11 is complex and could result in unexpected out-of-pocket costs if the weekly cost exceeds the cap. Tenth, the removal of the incidentals payment (section 14A.1.13) means that a benefit that existed before COVID-19 is now gone, and members should not expect it.

Compliance for Reservists starts with understanding the eligibility gates. A member should promptly notify their commanding officer when they are required to isolate for a reason connected to service, or when they are unable to work their pattern of Reserve service due to COVID-19 control measures. The commanding officer must form a reasonable belief; the member should provide all relevant evidence, such as a letter from Defence health or a state health order. The member should also confirm that they are not receiving any other salary or wages for the same period. If the member has a civilian job, they should not claim the Reserve service payment for days they are also paid by their civilian employer, as that would breach section 4.9.24(1)(a). The member must keep records of their pattern of Reserve service and any days of isolation. For COVID-19 infection, a medical diagnosis is required; the member should provide a positive test result or medical certificate. The cap of 10 days per pay period means the member should not expect full pay for a long isolation. If the member is able to work from home, they must do so first; the commanding officer has a duty to explore that option. For overseas personnel, compliance involves contacting the Director of Attaché and Overseas Management to apply for evacuation or ongoing accommodation. The member should not book accommodation without checking eligibility; if they own a home in the location where they would stay, they must declare that and cannot claim accommodation. If Defence books the accommodation, the member must pay the contribution as calculated; if the member books, they must keep receipts and claim reimbursement up to the caps. The member must also ensure that dependants from the same family group travel to the same capital city and live together. For storage and education assistance, the member should follow existing processes under Chapter 14A. Defence administrators must issue clear guidelines to commanding officers about what constitutes a “reasonable belief” to ensure consistency. They should also maintain a register of state and territory directions to validate isolation requirements. Administrators must ensure that the 30 km radius rule for accommodation is applied correctly, and that the “own home” exclusion is checked before approving benefits. The instrument does not prescribe forms, so standard Defence forms should be adapted. Regular audits of payments should be conducted to prevent double-dipping with DFRT salary payments. The instrument’s temporary nature means that administrators should periodically review whether the provisions are still needed and whether they have been superseded by later amendments. Overall, compliance is heavily dependent on administrative discretion and member honesty, making documentation essential.