Defence Determination, Conditions of service Amendment (COVID-19 response) Determination 2020 (No. 9)

The instrument introduces and relies on several key concepts. “COVID-19 control measure” is defined identically in both domestic and overseas contexts. Domestically (new section 11.4.10A) it means “a measure, however described, taken to limit the spread of COVID-19 issued by the Commonwealth government or a State or Territory government.” For overseas provisions (new section 15.9.1A) the definition is slightly broader: “a measure, however described, taken to limit the spread of COVID-19 issued by a government, or government authority.” The phrasing “however described” captures any formal or informal directive, executive order, public health order, or administrative guidance, provided it is issued by a governmental body. This gives decision‑makers wide latitude to determine which measures qualify, without requiring a specific statutory instrument.

“Beneficiary” is defined in both new sections 11.4.10A and 15.9.1A as, in respect of a deceased member, either a dependant of the member or the member’s legal personal representative. This is the class of persons eligible to claim memorial service assistance and, in overseas cases, funeral assistance.

“Member” in the domestic memorial service context (section 11.4.10A) means “a deceased member or deceased former member.” The overseas provisions similarly use “member” in the context of death.

The concept of a “memorial service” is central. The instrument does not define it, but distinguishes it from a “funeral”. A memorial service occurs after the funeral and can be held after COVID-19 control measures cease. Eligibility depends on the funeral having taken place while such measures were in force.

The “Director General Defence Community Organisation” is the key decision‑maker. For domestic memorial services, the Director General must be satisfied that the memorial service is consistent with the member’s wishes and the requirements of the member’s faith, religion or culture. For overseas funeral assistance, the Director General’s approval is now mandatory. For exceptional circumstances, the Director General can approve amounts exceeding the $14,000 cap.

“Evacuation period” is referenced in section 14A.1.17A but not defined in the amendment; it likely refers to the period during which a member is evacuated from an overseas hardship location due to COVID-19.

The “settling in/settling out allowance” (section 14.5.5.4) ordinarily has conditions requiring the member to be present at the posting. The amendment creates an exception for isolation due to COVID-19 control measures, so the allowance continues to be payable even if the member cannot physically settle in or out.

The “additional recreation leave” provisions (section 14A.1.17A) apply to members eligible under Parts 3 or 3A of the Determination. The amendment stops accrual when the member ceases to receive hardship or location allowance. This effectively means that during an evacuation where the member is no longer in the hardship location, they lose the benefit of accumulating extra leave. The provision ceases to apply at the end of the evacuation period, meaning normal accrual may resume upon return, but leave lost during the gap is not restored.

The concept of “exceptional circumstances” is left undefined, conferring discretion on the Director General. This creates uncertainty about the criteria for exceeding caps.

The primary affected group is Australian Defence Force members, both current and former, and their families, particularly in the context of death or overseas postings. For domestic amendments, the changes affect:

• Members whose food allowance ceases because of a prior time‑based eligibility rule (item 1 and transitional Schedule 3).
• Dependants and legal personal representatives of deceased members (new section 11.4.10A).
• Persons eligible for travel and accommodation to attend funerals or memorial services, including dependants, accompanying persons, and the member’s parents (amended section 11.4.11).

For overseas amendments, the affected groups include:

• Members posted overseas who are required to isolate due to COVID-19 control measures (amended section 14.5.5.4).
• Persons whose evacuation flights require an overnight stop in a third location (new section 14A.1.6A).
• Members who cease to receive hardship or location allowance while evacuated (new section 14A.1.17A).
• Beneficiaries of members who die overseas, including dependants or legal personal representatives (amended sections 15.9.3 and 15.9.3A). This includes both funeral and memorial service assistance.
• Members whose dependants die overseas (amended section 15.9.3A). The member or their legal representative can claim costs for preparing and returning remains, overseas funerals, and memorial services.

The instrument also affects the administrative machinery of Defence. The Director General Defence Community Organisation is the decision‑maker for approvals, and service providers may be paid directly for memorial services. The amendment imposes on the Director General a duty to assess consistency with a member’s wishes, faith or culture for domestic memorial services, and to approve or deny overseas funeral and memorial service claims.

Crucially, the amendments do not affect members who are not posted overseas or who do not have a death in the family during the COVID‑19 period. The benefits are reactive, triggered by specific events: death of a member or dependant, evacuation, or isolation orders.

The instrument creates several new rights to financial assistance, but also imposes conditions and a new gatekeeping duty on the Director General.

Rights to financial assistance for memorial services.
For domestic cases (new section 11.4.10A), a beneficiary has a right to financial assistance if: (a) the member’s funeral occurred while COVID-19 control measures relating to funerals were in place; (b) the memorial service is held in Australia; (c) the Director General is satisfied it is consistent with the member’s wishes and faith/culture; and (d) the service occurs within 12 months after those control measures end. The maximum is the lesser of the actual cost or $14,000 less any funeral amount paid. In exceptional circumstances, the Director General can approve a higher amount. This right is not absolute; it depends on Director General satisfaction.

For overseas deaths (new section 15.9.3(4)‑(5)), the beneficiary has a right to memorial service assistance on similar terms, but approval must be obtained. The cap is the same ($14,000 less any funeral payment) with an exceptional circumstances override.

Rights to travel and accommodation.
Under amended section 11.4.11, dependants, accompanying persons, and the member’s parents have a right to travel and two nights’ accommodation to attend a funeral or memorial service held in Australia, but only if the funeral/memorial is not in their home location. Overseas funerals under sections 11.4.10 or 15.9.3 are excluded from this travel benefit. An additional night is available only for funerals (not memorial services) if the Director General is satisfied travel requirements and timing necessitate it.

Rights to settling in/settling out allowance.
Amended section 14.5.5.4 gives members a right to continue receiving the allowance despite being required to isolate due to COVID-19 control measures at the overseas posting. The isolation exception removes what would otherwise be a condition barring the allowance.

Rights to transit accommodation and meals.
New section 14A.1.6A gives a right to accommodation, meals and incidentals for persons whose evacuation flights require an overnight stop in a third location. The rates are calculated under existing section 13.3.6, with reduced rates for arrival/departure days.

No accrual of additional recreation leave during evacuation.
New section 14A.1.17A does not confer a right; it removes a right. Members who are eligible for additional recreation leave lose accrual from the day they cease to receive hardship or location allowance. This duty to stop accrual lasts for the evacuation period. It is an implicit condition that additional leave only accrues while the allowance is actually paid.

Duty on Director General.
The Director General must make subjective assessments for memorial services: consistency with the member’s wishes, faith, religion or culture (domestic) and approval of overseas funeral and memorial service claims. These duties are discretionary but must be exercised in accordance with administrativelaw principles, including considering relevant matters and avoiding bias.

This instrument does not itself create any new penalties, offences or enforcement mechanisms. It is a determinative instrument made under the Defence Act 1903 that sets conditions of service. Breaches of these conditions do not directly attract criminal liability; rather, they affect entitlement to benefits and allowances. For example, a member who claims the settling in/settling out allowance while not genuinely isolating due to COVID-19 control measures could be subject to misconduct proceedings under the Defence Force Discipline Act 1982 or could be required to repay amounts wrongly received. Similarly, a beneficiary who misrepresents costs to obtain memorial service assistance could commit fraud at common law or under the Criminal Code Act 1995 (Cth), but this instrument does not reference those provisions.

The primary enforcement lever is administrative. The Director General Defence Community Organisation, as the decision‑maker, can refuse to approve financial assistance if conditions are not met. For domestic memorial services, the Director General must be satisfied of consistency with the member’s wishes and faith/culture. If that satisfaction is not reached, the application fails. For overseas funeral and memorial service assistance, approval is required as a condition of eligibility; without it, no payment.

The instrument does not provide for internal merits review or a right of appeal. However, decisions under the Determination are likely subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the commonlaw constitutional writs, as the Director General is an officer of the Commonwealth exercising a statutory power. The discretionary “exceptional circumstances” override is reviewable on grounds of unreasonableness or failure to consider a relevant matter, but the courts give wide latitude to such subjective discretions.

The only specific monetary sum in the instrument is the transitional $14.65 for members whose food allowance ceased before commencement. There is no penalty for failing to pay it; it is a one‑off entitlement.

The instrument is a legislative instrument made under section 58B of the Defence Act 1903. That section empowers the Minister (or a delegate, in this case the Assistant Secretary) to make determinations with respect to the conditions of service of members of the Australian Defence Force. The Determination has legislative force, subject to disallowance, and prevails over inconsistent subordinate legislation unless the Defence Act provides otherwise.

The amendments interact extensively with other parts of Defence Determination 2016/19. For instance:

• Section 11.4.10A expressly references section 11.4.9 (funeral costs) and section 15.9.3 (assistance if member dies overseas) when computing the cap for memorial service assistance. The $14,000 cap is reduced by amounts paid under those sections. This means that if a funeral already exhausted the $14,000 limit, no memorial service assistance is available.
• Section 11.4.11 was amended to exclude overseas funerals under sections 11.4.10 and 15.9.3 from travel and accommodation benefits. This limits the scope of travel support for families who repatriate remains.
• Section 14A.1.6A relies on section 13.3.6 for calculating accommodation and meal benefits, and on sections 13.3.9 and 13.3.10 for reduced rates. So the existing travel allowance framework applies, but now explicitly covers transit during evacuations.
• Section 14A.1.17A references Parts 3 and 3A of the Determination for additional recreation leave eligibility. It overrides the normal accrual rules only for the period when the member ceases to receive hardship or location allowance.

The instrument also interacts with laws external to the Defence Determination. The definition of “COVID-19 control measure” incorporates by reference measures issued by governments or government authorities. The validity of such measures (e.g., whether a public health order is lawfully made) is not determined by this instrument; it merely uses their existence as a factual trigger. This could lead to disputes if a member claims the measure was not properly issued, or if different jurisdictions have conflicting measures.

There is no explicit interaction with the Military Rehabilitation and Compensation Act 2004 or the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988, which provide separate death and funeral benefits. The instrument does not contain a non‑duplication clause beyond the subtraction of amounts paid under other sections of the Determination. A beneficiary may be able to claim both compensation under those Acts and assistance under this Determination, potentially resulting in double coverage unless the compensation scheme has its own offset provisions.

The transitional food allowance payment of $14.65 does not appear to interact with any other benefit; it is a standalone payment.

The source document itself is an amendment instrument. It is the “COVID-19 response Determination 2020 (No. 9)”. This indicates that there were at least eight earlier COVID‑19 response determinations in 2020 amending the same principal Determination. The instrument was made on 29 April 2020 and, at the time of writing, represents the state of the determination as amended by this instrument. No subsequent amendment history is provided within the text. The instrument amends Defence Determination 2016/19, which is itself a consolidated instrument likely subject to further amendments beyond 2020. However, the source does not disclose those later amendments.

The instrument is a legislative instrument registered on the Federal Register of Legislation. Its commencement is “the day after registration”, implying immediate effect at the height of the initial COVID‑19 lockdowns in Australia. The transitional Schedule 3 applies retrospectively to members whose food allowance ceased before commencement, indicating that the amendment intended to address a gap that arose during the early pandemic period.

No explanatory statement or impact analysis is included in the source material. Without that context, it is not possible to identify whether the instrument was subject to disallowance or scrutiny by the Parliamentary Joint Committee on Human Rights.

The source does not cite or refer to any litigation. This is a COVID‑19 pandemic response instrument that has been in force since April 2020. As a matter of public record, it is unlikely to have generated reported litigation, given that the amounts in dispute are relatively small ($14,000 caps, $14.65 transitional payment) and the decision‑maker is an internal Defence officer. However, the instrument does not contain a privative clause, so decisions of the Director General Defence Community Organisation could be challenged. Potential grounds include jurisdictional error, failure to consider the member’s wishes or faith, or unreasonable refusal to exercise the exceptional circumstances discretion.

No decisions of the Federal Court or the Administrative Appeals Tribunal concerning this specific instrument are known from the source. Because the instrument incorporates COVID‑19 control measures defined broadly, any challenge would likely turn on whether a particular measure qualified. For example, if a state government issued a non‑binding recommendation rather than a formal public health order, a beneficiary might argue it is still a “measure, however described, taken to limit the spread of COVID‑19”. Courts might need to interpret that phrase, but no such case has yet reached public judgment as of the source date.

Several provisions contain traps for the unwary. First, the domestic travel and accommodation amendment (Schedule 1 item 4) explicitly excludes memorial services from eligibility for an additional night’s accommodation. Subsection 11.4.11.2 now provides additional accommodation only for funerals under section 11.4.9. A family attending a memorial service cannot claim that extra night, even if travel requirements are identical. The note in the amendment confirms this.

Second, the overseas funeral assistance amendments (items 4 to 6 of Schedule 2) change the eligibility test from an entitlement to requiring Director General approval. The former subsection 15.9.3.2 appears to have been automatic (“eligible for financial assistance”); the substituted version conditions eligibility on approval. This adds a discretionary gate that did not exist before, potentially delaying payments or leading to refusals.

Third, the cap for memorial service assistance is $14,000 less any funeral payment. If the Defence already paid $14,000 for the funeral, the memorial service cap is zero. There is no exception even if funeral costs were lower but the full $14,000 was paid (e.g., because the funeral was overseas and more expensive). The wording is “$14,000 less the amount paid under section 11.4.9 or 15.9.3, if any.” This is an all‑or‑nothing subtraction rather than a proportional offset. A family that spent $12,000 on a funeral and received $12,000 from Defence would have only $2,000 remaining for a memorial service. The $14.65 transitional food allowance is also oddly specific; it is not indexed, and applies only to members whose food allowance ceased before 29 April 2020, not to those whose allowance ceased later.

Fourth, the definition of “COVID-19 control measure” includes measures “however described” and from “a government, or government authority” overseas. This could encompass informal guidance, press releases, or administrative decisions without legal force. The Director General must determine what qualifies, creating inconsistent application. There is no requirement for the measure to be published or accessible.

Fifth, the recreation leave cessation provision (section 14A.1.17A) means that during an evacuation, members stop accruing additional recreation leave if they stop receiving hardship/location allowance. This could disadvantage members who are evacuated for long periods; they lose leave accrual but cannot control when they return.

Sixth, the memorial service timing is tight: it must occur between the day COVID‑19 control measures relating to funerals end and 12 months after that day. If a family cannot organise a service within that window, they lose eligibility. The provision does not account for long‑delayed travel or cultural mourning periods that exceed 12 months.

For members, dependants and legal personal representatives, compliance means understanding the eligibility criteria and collecting the necessary evidence.

For domestic memorial service assistance: The beneficiary must show that the member’s funeral occurred while COVID‑19 control measures relating to funerals were in place. The best evidence is a copy of the relevant public health order or government direction in force on the date of the funeral, together with a funeral director’s invoice confirming the date. The memorial service must be held in Australia within 12 months after those measures end. The beneficiary should apply to the Director General Defence Community Organisation, setting out the member’s wishes and the requirements of the member’s faith, religion or culture. Documentation such as a will, letter of wishes, or religious leader’s statement will be useful. The application should include the cost of the memorial service and proof of any funeral assistance already paid under section 11.4.9 or 15.9.3.

For travel and accommodation to attend a funeral or memorial service: The person must be a dependant, an accompanying person (if the dependant is very young, aged, ill or distressed), or the member’s parents. The service must be in Australia and not in the person’s home location. For an additional night for a funeral only, the person must satisfy the Director General that travel requirements and the timing of the funeral service necessitate it. Documentary evidence of flight schedules and funeral timing should be provided.

For overseas funeral assistance: The beneficiary must obtain approval from the Director General. The application should include the death certificate, overseas funeral costs, and evidence that COVID‑19 control measures were in place if claiming memorial service assistance. The total claim across funeral and memorial service cannot exceed $14,000, but the Director General may approve more in exceptional circumstances. Those circumstances should be specifically detailed.

For members isolating at overseas postings: The member should notify Defence that the isolation is required by a COVID‑19 control measure issued by a government or authority. The settling in/settling out allowance will continue despite the inability to settle in/out.

For transit accommodation during evacuation: The person must be on an evacuation flight that requires an overnight stop. The accommodation, meals and incidentals are calculated under section 13.3.6 with reduced rates for arrival/departure days. Receipts should be retained.

For additional recreation leave: Members evacuated from hardship locations should be aware that additional recreation leave will not accrue from the day they cease to receive hardship/location allowance. They may wish to track the period to ensure correct leave balances.

For the transitional food allowance payment: Affected members need only be identified by Defence; the payment is a fixed $14.65. Members should verify they receive it if eligible.

Administrators within Defence must maintain a consistent approach to assessing “exceptional circumstances” and “consistency with member’s wishes/faith/culture”. A written policy would reduce ad‑hoc decision‑making and exposure to judicial review. Records of all approvals and refusals should be kept, including the basis for each decision.