Defence Determination, Conditions of service Amendment (COVID-19 response) Determination 2020 (No. 8)

The instrument introduces and refines several key concepts central to ADF members’ entitlements during the COVID-19 pandemic.

COVID-19 control measure (Schedule 1, new section 5.11.16A) is defined as a measure taken to limit the spread of COVID-19 issued by the Commonwealth government or a State or Territory government however described. Importantly, the note adds that a measure may be issued in the form of guidance, a public health order or directive. This is a deliberately broad definition: it captures not only enforceable orders but also non-binding guidance from health authorities. The breadth shifts the entitlement trigger from objective facts (school closure) to a much more subjective assessment of what constitutes a “measure”. It does not require the measure to be legally binding or to prohibit attendance; mere “guidance” that schools should close would qualify. This creates scope for generous interpretation but also for inconsistent application across commands and states.

Required to isolate (Schedule 2, amending section 14A.1.2) is redefined to mean isolation required under a law of a State or Territory. This is narrower than the previous entry, which was omitted. It requires a legal requirement, not merely public health advice. This distinction matters for accommodation eligibility: the member is only excluded from commercial accommodation if they are required to isolate under law and the accommodation in which they are required to isolate is provided by the State or Territory. If a member chooses to isolate voluntarily (or under non-binding advice), the exception does not apply and they remain eligible for commercial accommodation with cooking facilities.

Short absence for supervision of children (Division 4 of Part 11, Chapter 5) expands from school/childcare closure to any inability to attend due to a COVID-19 control measure. The removal of the cumulative cap on days (item 8 omitting “cumulative” in paragraph 5.11.18.2.a) means there is no fixed limit on paid absence for this reason, subject to the member providing a reasonable explanation. This creates an open-ended entitlement that could be substantial for members with multiple dependants or prolonged school disruptions. It transfers the cost of child supervision from households to the Defence budget, with no apparent cap.

Evacuation flights (section 14A.1.4) now explicitly include domestic flights that may not be connected with an international flight. The destination is tied to the member’s work location or capital city nearest their living location. This gives the administration flexibility but may impose extra costs if members are directed to fly to non-optimal airports.

Director’s discretion to vary allowances (sections 14A.1.16 and 14A.1.17) is a significant delegation of financial power. The Director of Attaché and Overseas Management may, having regard to advice from DFAT, reduce an accompanied rate to unaccompanied, or cease a specified allowance entirely. The criteria are not defined beyond “having regard to advice from DFAT”. This gives the executive broad latitude to cut benefits based on changing diplomatic advice, without formal review or transparent criteria. It creates uncertainty for members posted overseas about their ongoing entitlements.

State-provided isolation accommodation (new subsection 14A.1.7.2A) excludes a member from commercial accommodation if the state provides isolation accommodation. This shifts the cost of accommodation from Defence to the state. However, state-provided quarantine accommodation has at times been criticised for quality, lack of cooking facilities, and restrictions. The member cannot claim meal supplement while in such accommodation (note after subsection 14A.1.8.1). So the member may be worse off in terms of comfort and out-of-pocket food costs, even though the nominal benefit is removed.

Temporary duty in Australia (new section 14A.1.19A) allows travel under Chapter 9 if the member is required to undertake temporary duty in another location and it is not reasonable to commute by car or metropolitan public transport. This recognises COVID-19 border closures and reduced public transport. It does not define what “reasonable” means, leaving it to administrative judgment.

The instrument primarily affects Australian Defence Force members (both permanent and reserve) and their dependants, as well as Defence administrators and the Director of Attaché and Overseas Management.

Members posted domestically are affected by the expanded short absence provisions. Any member whose dependant cannot attend school, kindergarten or child care provider because of a COVID-19 control measure is eligible for paid short absence. This applies regardless of whether the member is full-time or reserve (Reserve allowance is now included in isolation payments - item 1). The removal of the cumulative cap means a member could use this entitlement repeatedly for the same dependant, for example if schools close intermittently due to outbreaks. There is no explicit requirement to exhaust other forms of leave first. This will increase administrative work for unit-level personnel managers who must track and approve such absences. The change also affects members who return to their family’s location: the new food allowance exclusion (paragraph 7.9.11.1.e) means they lose eligibility for food allowance after 14 days back with family, unless they return to their posting location. This could create a financial disincentive for members to remain with family during extended lockdowns or border closures.

Members posted overseas or evacuated are heavily affected by Schedule 2. Evacuated members now have clear eligibility for economy flights (retrospectively from 27 March 2020) but the destination is tied to work location or capital city, not necessarily their home town. Members who were evacuated early (e.g. from China) get extended accommodation eligibility (until 2 May 2020). Those who returned after 8 April 2020 are limited to 28 days of commercial accommodation from arrival, and lose that eligibility if the state provides isolation accommodation. This creates a cliff edge: once the 28 days expire, members on return must fund their own accommodation or rely on state quarantine, even if they cannot return to their posting location due to border restrictions. Members are also affected by the Director’s discretion to cut living allowances and hardship/location allowances based on DFAT advice. This could mean a member on accompanied rate is suddenly reduced to unaccompanied rate, or loses the allowance entirely, while stuck in Australia. There is no appeal mechanism specified, only the Director’s decision “having regard to” DFAT advice.

Dependants are indirectly affected: their inability to attend school/care triggers the member’s short absence entitlement. Dependants evacuated with the member are eligible for the same flight but must go to the same location as the member (note to subsection 14A.1.4.1). Their presence may affect the member’s allowance rates (accompanied vs unaccompanied).

The Director of Attaché and Overseas Management gains significant discretionary powers. They must now decide allowance rates based on DFAT advice, without any published guidelines or appeal rights. This delegation centralises decision-making and increases the risk of inconsistent treatment across members if the Director changes their approach.

Defence administrators (e.g. unit pay clerks, manpower control) must update their systems to reflect the new absence codes, the new cap-free short absence, the new food allowance exclusion period, and the overseas accommodation and allowance rules. The transitional food allowance provisions (Schedule 3) require manual tracking of which members ceased eligibility on commencement and then allow 14 more days.

State and Territory governments are indirectly affected: their health orders and isolation requirements now directly determine ADF members’ entitlements. When a state provides quarantine accommodation, Defence saves the cost of commercial accommodation but the member may be worse off. The instrument effectively transfers some costs and decisions to states without any agreement mentioned.

The instrument creates or modifies rights and duties for ADF members and Defence administration.

Rights to paid short absence: Members have the right to take a short absence from duty with pay when their dependant is unable to attend school, kindergarten or child care provider due to a COVID-19 control measure (section 5.11.18 as amended). This right is not capped by cumulative days (the old cumulative limit is removed). The member does not need to provide evidence beyond the fact that a COVID-19 control measure is in effect, though presumably they must show that the dependant would otherwise have attended and that the measure is the cause. The note explicitly excludes school holidays. This right is generous and may be exercised repeatedly for different dependants or successive closures.

Right to isolation payments: Members (including reserves) are entitled to payments for periods of isolation associated with military service, now including Reserve allowance (item 1). This reduces the financial penalty for reserve members who are isolated and cannot work their civilian jobs, but only to the extent of their reserve pay.

Right to evacuation flights: Members evacuated overseas are entitled to an economy class flight to the airport nearest their work location or, if not working, the capital city nearest where they will live (section 14A.1.4.1). This right applies retrospectively from 27 March 2020. It is a right but subject to the Director’s logistical arrangements; the member cannot necessarily choose the destination.

Right to accommodation on return: Members who received an evacuation flight are eligible for reasonable commercial accommodation with cooking facilities for 28 days from return to Australia (section 14A.1.7). This right is subject to the exception that if the member is required to isolate under law and the state provides accommodation, the member is not eligible for commercial accommodation on that day. The member’s right to choose their accommodation is therefore limited: they cannot claim commercial accommodation if state quarantine is mandated. Also, the right expires after 28 days, with no extension even if border restrictions prevent onward travel.

Right to meal supplement allowance: The note after subsection 14A.1.8.1 clarifies that meal supplement allowance is not payable while the member is in state-provided isolation accommodation. This is a removal of a potential right; the member must fund their own food during state quarantine.

Right to travel for temporary duty: Members required to undertake temporary duty in another location in Australia are eligible for travel under Chapter 9 if it is not reasonable to commute by car or public transport (new section 14A.1.19A). This right depends on an administrative determination of reasonableness.

Duties of members: The instrument does not impose new duties explicitly, but by conditioning entitlements on certain facts members must ensure they comply. To claim short absence, the member must have a dependant whose inability to attend is due to a COVID-19 control measure; member must not use the provision during school holidays. To claim accommodation, the member must have been evacuated; if they are required to isolate and state accommodation is provided, they must use that accommodation and cannot claim commercial accommodation. To retain full overseas allowances while in Australia, the member must not have had their allowance reduced by the Director. There is no duty to inform Defence of changes in circumstances, but practically failure to do so could lead to overpayment and subsequent recovery.

Duties of the Director: The Director must have regard to advice from DFAT when deciding to reduce or cease allowances (sections 14A.1.16.3 and .5). This is a duty, but the weight given to that advice is discretionary. The Director must also ensure that transitional accommodation entitlements are honoured for those who qualified before the commencement date.

Duties of Defence administration: They must implement the new short absence rules without a cumulative cap, update payroll systems for Reserve allowance in isolation payments, and manage the transitional food allowance provisions.

The instrument itself does not create offences or penalties. It amends the Defence Determination, which is a legislative instrument setting out conditions of service. Breaches of the determination by members would typically be dealt with under the Defence Force Discipline Act 1982 (DFDA) if they involve false statements to obtain a benefit, or under administrative action for overpayments. For example, a member who falsely claims that a dependant cannot attend school due to a COVID-19 control measure could be charged with making a false statement under section 124 of the DFDA, which carries a maximum penalty of 6 months’ imprisonment or a fine. Overpayments of allowance would be recoverable as debts due to the Commonwealth under the Defence Act 1903 or general law.

The removal of the cumulative cap on short absence (item 8) reduces an automatic enforcement mechanism. Previously, a member could only take a limited number of cumulative days; exceeding that was a breach. Now there is no such hard limit, so enforcement relies on verifying each absence is genuinely for the reason claimed. This increases the need for monitoring and could lead to more disputes about whether a COVID-19 control measure actually prevented attendance.

For overseas allowances, the Director’s discretionary power to reduce or cease allowances (sections 14A.1.16 and 14A.1.17) contains no penalty for non-compliance by the member; rather it is an administrative decision. If the member disagrees, the remedy would be through Defence’s internal review mechanisms or ultimately the Administrative Appeals Tribunal (AAT) review under the Administrative Appeals Tribunal Act 1975, since the determination is a legislative instrument and decisions made under it are likely reviewable. However, the instrument does not provide for a merits review process explicitly. The only safeguard is that the Director must “have regard to advice from DFAT” - a procedural requirement, not a substantive standard.

The state isolation accommodation provisions create a binary outcome: if the member is in state-provided quarantine, they lose commercial accommodation and meal supplement. There is no penalty for the member; they simply lose the entitlement. The state is not a party to the determination, so no enforcement against the state.

Overpayments could arise if a member receives accommodation or an allowance to which they are not entitled because of a change in circumstances (e.g., the member stops being required to isolate but does not notify Defence). The determination does not specify a duty to notify, but Defence’s general conditions likely require members to report changes. Overpayments can be recovered under the Financial Management and Accountability Act 1997 (now Public Governance, Performance and Accountability Act 2013). The instrument does not address interest or recovery periods.

In summary, the enforcement regime is indirect and relies on existing disciplinary and administrative processes. The removal of the cumulative cap reduces automatic oversight, and the Director’s discretionary powers are poorly constrained, creating potential for inconsistent enforcement or unreviewable decisions.

The instrument is made under section 58B of the Defence Act 1903, which gives the Minister (or delegate) power to make determinations with respect to the conditions of service of members of the Defence Force. It is subordinate legislation and must not be inconsistent with the Act itself. The Defence Act 1903 provides the overarching framework for service conditions; this determination sits within it.

The instrument explicitly defers to State and Territory public health laws. The definition of “required to isolate” in Schedule 2 requires isolation under a law of a State or Territory. This means that the obligation to isolate must be legally enforceable, not merely advice. It incorporates State and Territory legislation by reference, but only for the purpose of triggering the accommodation exception. The definition of “COVID-19 control measure” in domestic provisions is broader, covering measures “issued” by governments “however described”, including guidance. This may include instruments that are not legislative instruments under state law, such as health alerts or non-binding directives. This creates potential inconsistency: the same directive might be a “control measure” for domestic short absence purposes but not qualify as “required to isolate” for overseas accommodation purposes. Members could be entitled to short absence based on non-binding guidance, yet be refused commercial accommodation because they are not “required to isolate” under law. This asymmetry may lead to confusion.

The instrument interacts with the Fair Work Act 2009 only indirectly. ADF members are not employees under that Act, but reserve members may have civilian employment. The determination’s inclusion of Reserve allowance in isolation payments (item 1) affects the reserve member’s Defence income during isolation, which may interact with any civilian sick leave or income protection.

The instrument interacts with the Migration Act 1958 for overseas members returning to Australia. Evacuation flights and quarantine accommodation are subject to border controls and quarantine requirements under Commonwealth and state law. The determination provides Defence-funded accommodation when the state does not provide it; if state quarantine is mandatory under a public health order, the member must use it, and Defence funding ceases.

The instrument interacts with the Public Governance, Performance and Accountability Act 2013 (PGPA Act) regarding the proper use of Commonwealth resources. The determination authorises expenditure on allowances, flights, and accommodation. However, decisions by the Director to reduce allowances must be made “having regard to advice from DFAT” - a factor that is not a PGPA requirement but may be considered as part of value for money.

The instrument retroactively applies evacuation flight eligibility from 27 March 2020 (subs. 14A.1.4.1A). Retrospective application may raise issues under the Legislative Instruments Act 2003 (now Legislation Act 2003), which requires that retrospective application be clearly intended. The instrument states it commences the day after registration, but the substantive entitlement is deemed to have applied from an earlier date. This is permissible under s58B of the Defence Act, which does not prohibit retrospective determinations.

The instrument does not amend the Defence Force Discipline Act 1982, but the short absence provisions might interact with discipline for absence without leave. A member who takes short absence without genuine entitlement could face disciplinary charges. The removal of the cumulative cap does not affect this.

No interaction with privacy laws (Privacy Act 1988) is mentioned, but members may need to disclose information about dependants’ school attendance and health orders, raising privacy considerations that are not addressed.

This instrument is itself an amendment to the Defence Determination 2016/19, Conditions of service. It is the eighth COVID-19 response determination made in 2020 (numbered (No. 8)). The source text does not list previous amendments or subsequent ones. Its commencement date is the day after registration (8 April 2020). The instrument does not repeal or amend any earlier COVID-19 determinations; it only amends the principal determination.

The amendment is retrospective in part: Schedule 2 item 2 (subsection 14A.1.4.1A) applies the new evacuation flight eligibility to persons evacuated on or after 27 March 2020, which is before the instrument was made. This is a one-way retrospective: it grants rights, not removes them. The transitional accommodation provisions (item 6) also extend rights for those evacuated before specific dates. No other retrospective effect.

The instrument does not amend its own enabling statute or any other Act. It is a standalone determination under s58B. Future amendments could be made by further determinations, and indeed this is part of a series. Without access to the full history, we cannot know if later determinations modified these provisions. The determination does not include a sunset clause; it will remain in force until amended or repealed.

The source text contains no references to litigation, and this instrument is a narrow administrative determination unlikely to have generated reported case law. Given it was made in April 2020, early in the pandemic, it is possible that some decisions under it (e.g., the Director’s discretion to reduce allowances) have been challenged in the Administrative Appeals Tribunal or Federal Court, but no such cases are mentioned in the source. The instrument’s provisions are relatively clear and may not have produced disputes. However, the broad discretion granted to the Director and the lack of published criteria could lead to future challenges. The Higgins and Re Sharpe line of cases on conditions of service determinations might be relevant, but not cited.

Several provisions in this determination create traps for the unwary.

Definitional asymmetry: The domestic provisions define “COVID-19 control measure” to include guidance, while the overseas provisions define “required to isolate” as isolation required under a law. This means a member evacuated from overseas who is staying in Australia and whose child cannot attend school due to non-binding health advice is entitled to domestic short absence, but cannot claim commercial accommodation if they are in state-provided quarantine that is not legally required. The member could be in a confusing situation where one part of the determination grants paid leave and another part denies housing support based on the same factual scenario.

Removal of cumulative cap on short absence: While this appears generous, it also removes the only automatic limit on the entitlement. Without a cap, a member could theoretically take short absence for the entire period of school closures, which could stretch for months. This places the onus on commanders to determine if the absence is reasonable. There is no guidance on what constitutes a “short” absence; the division title still says “short absence” but the cap is gone. This could lead to inconsistency and disputes. It also means the cost to Defence is open-ended.

Food allowance exclusion trap (paragraph 7.9.11.1.e): A member who returns to their family’s location due to COVID-19 loses food allowance after 14 days from the later of return or commencement. But the member may be unable to return to their posting location due to border restrictions or orders. They continue to be ineligible for food allowance even though they are not at their home posting. The transitional Schedule 3 only adds 14 days grace for those who had already returned before commencement. This creates a perverse incentive: a member might be better off not returning to family if they can maintain food allowance at their posting location, even if isolation is less comfortable.

Director’s discretion without criteria: The power to switch from accompanied to unaccompanied rate, or to cease allowances entirely, is based solely on “advice from the Department of Foreign Affairs and Trade”. There is no requirement for the Director to consider the member’s personal circumstances, hardship, or ability to maintain housing. The decision is effective until the member returns to their posting location or stops being eligible under the chapter. A member stuck in Australia for months could lose their overseas housing allowance, yet still have to maintain accommodation overseas (if dependants remain). The determination does not address this gap.

28-day accommodation cliff edge: Accommodation eligibility for returned members is exactly 28 days from arrival. If border restrictions or quarantine requirements prevent the member from departing after 28 days, they must find and fund their own accommodation. Meal supplement is also not payable during state quarantine, and ends with accommodation. A member who tests positive to COVID-19 and must extend quarantine would not get additional Defence-funded accommodation. The instrument does not provide for extensions.

State-provided accommodation exception: The exclusion of commercial accommodation when the state provides isolation accommodation is not subject to any quality standard. The member cannot demand commercial accommodation even if the state facility is unsuitable (e.g., no cooking facilities, shared bathrooms). The meal supplement note confirms no extra food allowance. So the member may be forced into unsatisfactory state quarantine with no additional Defence support.

Retrospective application with no warning: The flight eligibility is retrospective to 27 March 2020, but members who arranged their own travel before the determination could not have known they would be entitled to reimbursement. The instrument does not mandate reimbursement, only eligibility - the member must have received the flight under the determination. It may be that Defence will reimburse flights taken before the determination, but this is not explicit.

Note on school holidays: The note to paragraph 5.11.18.1.a says the absence does not include a period the child would not have otherwise attended school, such as school holidays. This seems straightforward but creates a record-keeping burden: the member must show the child would have attended but for the control measure. If a school closure overlaps with holidays, disputes may arise over whether the child would have been on holidays anyway.

No appeal mechanism: The determination does not provide for internal review of the Director’s decisions on allowances, or of denials of short absence. Members would have to rely on general Defence complaint procedures or the Ombudsman. The lack of a specific review mechanism may deter challenges.

Compliance with this determination requires careful record-keeping and proactive engagement with Defence administrative processes.

For domestic short absence (Schedule 1): Members should document each period their dependant is unable to attend school, kindergarten or child care due to a COVID-19 control measure. Keep any official notice, public health order, or government guidance that caused the closure or restriction. Note that the measure must be issued by a Commonwealth, State or Territory government; informal advice from a school principal is not sufficient unless backed by government directive. Do not claim absence for school holidays. There is no cumulative limit, but repeated absences may be scrutinised, so record the reason each time. Submit the absence request through normal Defence leave systems, referencing the reason as “COVID-19 control measure”.

For isolation payments: If a member is required to isolate as part of military service (e.g., after deployment or exposure), they should ensure their pay submissions include Reserve allowance if applicable. The determination now explicitly includes Reserve allowance in such payments.

For food allowance: Members who return to their family’s location should be aware they lose food allowance after 14 days from the later of their return date or the commencement of this determination (8 April 2020). The transitional Schedule 3 gives an extra 14 days for those already back before commencement. Keep track of the date of return to family location. If the member stays with family beyond 14 days, they must not claim food allowance for any period after the cut-off. If they need to extend their stay due to COVID-19 restrictions, they may lose the allowance - plan ahead.

For overseas members evacuated or returning: Upon evacuation, ensure the flight is booked in accordance with section 14A.1.4.1 - economy class to the airport nearest the location where you will work or the capital city near where you will live. If you were evacuated between 27 March and 8 April 2020, you may be entitled to a flight retrospectively; contact Defence administration to arrange reimbursement or credit. Keep proof of your own travel costs paid during that period.

Upon return to Australia, members are eligible for commercial accommodation with cooking facilities for 28 days from arrival. However, if you are required to isolate under a law and the State or Territory provides accommodation, you must use that accommodation on those days and cannot claim commercial accommodation or meal supplement. To ensure you receive proper support, check the legal basis of your quarantine: if you are in mandatory state quarantine under a public health order, you lose the right to Defence-funded accommodation and meal supplement. If you are in voluntary self-isolation based on health advice, you retain entitlement. This distinction is critical. Keep records of any quarantine orders or directives.

If the Director of Attaché and Overseas Management makes a decision to reduce your allowance (from accompanied to unaccompanied, or to cease it), you should request written reasons. The decision is made having regard to DFAT advice; you may wish to seek a review through Defence’s internal complaints mechanism or the Ombudsman, as the determination does not specify an avenue. Keep any communications about your posting status.

For temporary duty: If you are required to undertake temporary duty in another location and commuting is not reasonable, you may be eligible for travel under Chapter 9. This provision recognises that COVID-19 public transport restrictions may make commuting impractical. Get written confirmation from your chain of command that commuting is unreasonable.

General compliance tips: Maintain a diary of dates and reasons for absences, isolation periods, accommodation used, and any state orders. Update Defence payroll promptly on any change in circumstances that could affect entitlements (e.g., moving from state quarantine to commercial accommodation, or leaving family location). Overpayments will be recovered, so if in doubt, do not claim. Seek advice from your unit administrative officer or Defence People Group if a situation is not covered by these provisions.

Given the broad discretion on overseas allowances and the absence of a cumulative cap on short absence, the best compliance strategy is documentation and early engagement with the chain of command. The determination favours flexible administration over bright-line rules, which means consistency will depend on local interpretation.