Defence Determination, Conditions of service Amendment Determination 2021 (No. 15)

The instrument revolves around several interconnected concepts defined within the amended Defence Determination. A “long-term posting overseas” is the baseline condition for nearly all benefits , only members posted overseas for an extended period, along with their dependants who accompany them, are eligible. The instrument creates the term “quarantine accommodation assistance” under section 14A.2.7, which is a fixed weekly sum paid to cover hotel or other accommodation costs during a mandatory quarantine period on arrival in Australia. Critically, it applies only when the travel is “privately funded” and the member has no eligibility for specified travel benefits (such as assisted leave under Chapter 16 Part 4 or reunion travel under Chapter 14 or 15) at the time of booking. This prevents double-dipping and confines the payment to situations where the government does not already provide travel support.

The “travel restriction payment” under section 14A.3.2 is a separate, one-off lump sum compensation for the inability to use assisted leave travel during the posting. Eligibility requires that the member’s posting ends before 30 June 2022 and was not ended early at the member’s request. The “decision maker” (either the senior ADF member at post or, for senior members, the Director of Attaché and Overseas Management) must be satisfied the person had “no reasonable option” to use assisted leave travel. The payment is regionally graded, reflecting differences in typical travel costs: Pacific/South East Asia AUD 750, North Asia/South Asia/Central Asia AUD 1,000, Middle East/North America/Europe AUD 1,500, Central America/South America AUD 2,000, Africa AUD 2,500. The payment is not made until the posting ends, creating a deferral of compensation.

“Additional travel” under section 15.3.39 allows business class travel between the first and second overseas posting locations (including a leg through Australia) for members on back-to-back postings of at least 12 months. The decision maker can extend the travel period if satisfied it is reasonable, considering reasons for delay, welfare, work commitments, and financial implications. Dependants may also travel in a window three months before departure and three months after arrival. The additional benefits under section 15.3.39A include excess baggage under section 14.4.11 and rest periods under Chapter 14 Part 4 Division 3, but expressly exclude accommodation, meals and incidentals , a notable limitation.

“Education support” under section 15.6.17B is a reimbursement for tutoring or summer schooling for a child who is already receiving some other education assistance under the same Part. The cap is AUD 135 per day for up to 10 days, making it a modest supplement for pandemic-related school disruptions. The “in-country offset accommodation” under section 16.4.11A applies when a member offsets their assisted leave travel to travel to a location within the same country, rather than using the travel benefit directly. The accommodation assistance is capped at AUD 1,200 per week plus AUD 200 per extra day, and can only be used once. All benefits carry explicit sunset dates, limiting the Commonwealth’s ongoing liability: 31 December 2021 for the in-country offset, and 30 June 2022 for quarantine costs and education support. The travel restriction payment and additional travel provisions have no sunset but are implicitly tied to the pandemic context through eligibility conditions (posting ends before 30 June 2022, COVID-19 pandemic as a reason for extension).

The primary class of affected persons is Australian Defence Force members who are on a “long-term posting overseas” and their dependants who have accompanied them to the posting location. The instrument distinguishes between ordinary members and the “senior ADF member at post” (who must apply to a higher decision maker), creating a two-tier decision-making structure. Dependants are specifically defined in the instrument as the member’s dependants who live at the posting location, and the benefits attach to each dependant individually. Family groups are treated as a unit for quarantine accommodation (AUD 1,500 per week) but individually for the travel restriction payment (each person receives the regional rate). The instrument also affects children who are dependants and already in receipt of other education assistance under Part 15.6, granting them up to ten days of extra tutoring or summer schooling reimbursement.

Beyond the recipients, the instrument designates decision makers: the “senior ADF member at post” for most members, and the “Director of Attaché and Overseas Management” when the applicant is the senior ADF member or their dependants. These decision makers must exercise discretion, particularly under section 15.3.39(3) and (5) regarding extending travel periods, and under section 14A.3.2(2)(b) regarding whether the person had “no reasonable option” to use assisted leave travel. This imposes a non-trivial administrative burden on those officers, especially in interpreting the vague phrase “no reasonable option”. The transitional provisions extend retroactive eligibility to any member who would have qualified between 1 July 2021 and 5 August 2021, effectively compensating for the gap between the policy intention and the instrument’s commencement. The instrument also affects taxpayers, because each benefit is a direct payment from consolidated revenue or from the Defence budget. The fixed per diem rates and caps limit per-person costs but the total fiscal exposure depends on the number of affected members , a figure the instrument does not supply. Private travel providers (hotels, airlines) may also be indirectly affected, as members use the payments to purchase commercial services, but the instrument does not mandate government-contracted providers.

The instrument primarily creates rights to receive financial benefits, but those rights are conditional and come with few corresponding duties on the member beyond meeting the eligibility criteria. The central duty imposed on members is to not have ended their posting early at their own request if they seek the travel restriction payment (section 14A.3.2(2)(a)). This is a mild constraint: a member who chose to cut short a posting forfeits the payment, presumably because they had some alternative means of travel. Members also have a duty to not have previously received the same benefit for the same person under the quarantine assistance provision (section 14A.2.7(1)(e)) , a straightforward anti-double-dipping rule. For the in-country offset accommodation, the right can be exercised only once (section 16.4.11A(3)). For education support, the child must already be receiving some other education assistance under Part 15.6 (section 15.6.17B(1)), which ensures the benefit is a top-up, not a standalone entitlement.

The decision makers have discretionary duties: they must be “satisfied” of certain facts and must consider specific factors when extending travel periods under section 15.3.39. Those factors are listed: the reason travel could not occur, the member’s and dependant’s welfare, work commitments over the next six months, and financial implications. This imposes a duty to give proper, genuine and realistic consideration to each factor , a standard that may be reviewable under administrative law if the decision maker fails to do so. The decision maker under section 14A.3.2 must decide whether the person “had no reasonable option to be able to use an assisted leave travel benefit”. This is a relatively high threshold; if the member had any option, however inconvenient, the decision maker might find eligibility lacking. The notes clarify that a requirement to quarantine does not prevent the person from being able to use a benefit, narrowing the scope of the payment.

The instrument does not create any explicit duty to report changes in circumstances, but overpayments would likely be recoverable under general Commonwealth debt recovery powers. The transitional provisions give members a right to retroactive payments but also contain a duty: if a member receives a transitional benefit for a person, they cease to be eligible for the ongoing section for that same person (Schedule 2, sections 2(3), 5(3)). This prevents stacking of transitional and ongoing entitlements.

The instrument itself contains no penalty provisions. It is a benefits determination, not a regulatory instrument. Enforcement therefore relies on the background legal framework: the Defence Act 1903, the Criminal Code 1995 (Cth) for fraud offences, and the Public Governance, Performance and Accountability Act 2013 (PGPA Act) for financial management. If a member knowingly submits false information to obtain a benefit, they could be charged with obtaining a financial advantage by deception under section 134.2 of the Criminal Code or with giving false or misleading information under section 137.1, which carries penalties of up to 12 months imprisonment. Overpayments may be recovered as debts due to the Commonwealth under section 77 of the PGPA Act, or under the Defence Determination’s own provisions for recovery of overpayments (not shown in this instrument but likely present in the parent Determination).

The decision maker’s discretion is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) if the decision is made under an enactment and is of an administrative character. A member who believes a decision maker improperly denied eligibility could seek judicial review on grounds such as failing to take into account a relevant consideration or acting unreasonably. However, the instrument does not provide an internal merits review mechanism, so any challenge would have to go to the Federal Court or the Administrative Appeals Tribunal if the decision is reviewable under the AAT Act (though AAT review may not be available for decisions under the Defence Determination unless specifically conferred). The absence of explicit enforcement or review provisions creates uncertainty and may deter members from challenging adverse decisions.

The regional gradation of travel restriction payments may create perverse incentives: a member posted to Africa receives AUD 2,500 while a member in the Pacific receives only AUD 750, even if the actual loss of leave travel benefit is similar. This is not a penalty but an administrative design choice that may be seen as unfair. If members attempt to manipulate postings or timing to obtain higher payments, there is no specific anti-avoidance rule, but the requirement that the posting not be ended early at the member’s request provides some gatekeeping.

This instrument amends the Defence Determination 2016/19, Conditions of service, which is itself a legislative instrument made under section 58B of the Defence Act 1903. It sits within a hierarchy: the Defence Act provides the rule-making power; the Determination sets out conditions of service; this amendment adds and modifies those conditions. The instrument does not purport to override other Commonwealth legislation, but it may interact with several Acts. First, quarantine accommodation assistance under section 14A.2.7 is tied to “mandatory quarantine period on arrival in Australia”, which is imposed under state and territory public health orders made under state public health Acts, and at the Commonwealth level under the Biosecurity Act 2015 for international arrivals. The benefit does not displace those quarantine requirements; it merely compensates for the cost. Second, the travel restriction payment and other allowances are likely assessable for income tax purposes under the Income Tax Assessment Act 1997 (ITAA 1997). Section 15-2 of the ITAA 1997 generally includes allowances in assessable income unless a specific exemption applies. The Military, Peacekeeping and Foreign Service (Allowances) Act 1962 or regulations thereunder may provide exemptions for certain defence allowances, but this instrument does not reference tax treatment. Recipients should therefore treat these payments as potentially taxable unless advised otherwise.

The instrument interacts with other parts of the parent Determination. For example, eligibility for quarantine assistance requires that the member does not have eligibility for assisted leave travel benefit under Chapter 16 Part 4, reunion travel under Chapter 14 Part 6 Division 1 or Chapter 14A Part 1 Division 5, or reverse reunion travel under Chapter 15 Part 3 Division 3 (section 14A.2.7(1)(c)). This creates a cascading interaction: the member must first exhaust other travel entitlements before accessing the private travel quarantine payment. Similarly, the travel restriction payment under section 14A.3.2 applies only if the member could not use an assisted leave travel benefit under Chapter 16 Part 4. The additional travel benefit under section 15.3.39A specifically excludes accommodation, meals and incidentals, requiring the member to look elsewhere in the Determination (or use personal funds) for those items. The education support under section 15.6.17B requires the child to be “eligible for any other type of education assistance under this Part”, tying it to existing education provisions.

The instrument does not interact with the Fair Work Act 2009 because ADF members are excluded from that Act’s coverage (section 6AA). It does not interact with the Veterans’ Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004 because it deals with service conditions, not compensation for injury or death. The transitional provisions in Schedule 2 create a retrospective interaction with the period from 1 July 2021, making the new sections effectively “deemed in force” for that period. This raises mild retrospectivity issues under section 12(2) of the Legislation Act 2003, which permits retrospective commencement as long as the instrument says so, but does not affect rights or liabilities existing before the commencement date , here it creates new rights, not liabilities.

This instrument, the Defence Determination, Conditions of service Amendment Determination 2021 (No. 15), is itself an amending instrument. It amends the Defence Determination 2016/19, Conditions of service, which is the principal instrument governing conditions of service for ADF members. The amendment was made on 5 August 2021 by Fiona Louise McSpeerin, Assistant Secretary of People Policy and Employment Conditions in the Defence People Group, under delegation from the Minister. It commenced on the same day, 5 August 2021. The instrument does not disclose its own amendment history because it is a one-off amendment; it is item No. 15 of the amendment determinations made in 2021, indicating there were at least 14 prior amendments in that year alone (not listed in this instrument). The principal Determination has likely been amended many times since its making in 2016. This particular amendment addresses COVID-19 conditions for overseas postings, suggesting an evolving policy response to the pandemic. The sunset clauses indicate that the provisions are temporary, with some differences: quarantine assistance and education support cease on 30 June 2022; in-country offset accommodation ceases on 31 December 2021; the travel restriction payment and additional travel benefits have no express sunset but are implicitly confined by the pandemic-related eligibility conditions. The instrument does not amend any other legislation. A reader seeking the current consolidated text of the Defence Determination would need to trace all amendments, including this one, along with any later amending instruments.

The instrument text contains no references to any litigation, and a search of publicly available Australian court databases (as of the knowledge cutoff) does not reveal any reported cases concerning this specific amendment determination. This is unsurprising given its nature: it is a routine subordinate instrument conferring financial benefits with limited scope, duration, and discretionary elements. Challenges are more likely to arise in the context of individual decisions made under the instrument rather than the instrument itself. A member denied a travel restriction payment or an extension of travel period could potentially seek judicial review on administrative law grounds , failure to consider relevant factors (the four listed in section 15.3.39(3)), taking into account an irrelevant consideration, or irrationality in the ‘no reasonable option’ assessment. However, no such challenges have been publicly reported. The lack of litigation may also reflect the fact that the instrument is generous in granting benefits, reducing incentives to contest, and that the amounts involved are modest enough to make litigation cost-ineffective for most members. The instrument does not create any new criminal offences or civil penalties, which are typical triggers for litigation. If litigation does arise, it would likely be in the Federal Court under the ADJR Act or possibly in the AAT if the decision is reviewable there (though the instrument does not expressly confer AAT review). The transitional provisions may also raise questions about whether members who had already incurred costs between 1 July and 5 August 2021 can recover without formal application, but no case law has yet tested this.

The instrument contains several traps that could cause members or decision makers to misapply the benefits. First, the quarantine accommodation assistance under section 14A.2.7 only applies if the travel is “privately funded” and the member does not have eligibility for specified travel benefits “at the time of booking the travel”. A member who books a flight while still holding an unused assisted leave travel benefit, even if they later decide not to use it, will not qualify. This is a timing trap , the eligibility window closes at booking, not at departure. Second, the quarantine benefit excludes mandatory quarantine on return to the posting location: the note to section 14A.3.2 says “a requirement to quarantine in a destination or on return to the posting location does not prevent a person from being able to use a benefit.” This means a member who could travel but faces quarantine at the destination is still considered able to use the benefit, potentially disqualifying them from the travel restriction payment. Third, the travel restriction payment is not payable until the long-term posting overseas has ended (section 14A.3.2(4)). A member who needs cash to cover immediate expenses before the posting ends will not receive it; the delay could create cash flow problems.

Fourth, the education support under section 15.6.17B is limited to “10 days of education support” at AUD 135 per day, and only if the child is already eligible for “any other type of education assistance under this Part”. This is a narrow top-up; a member whose child is not receiving any other Part 15.6 assistance gets nothing. The definition of “education support” includes “tutoring assistance” and “summer schooling”, but not online learning materials or devices. Fifth, the in-country offset accommodation under section 16.4.11A applies only to a member who “offsets their assisted leave travel to travel to a location in-country”. The accommodation assistance is capped at AUD 1,200 per week; if actual accommodation costs exceed that, the member must cover the difference. The benefit is available only once (section 16.4.11A(3)), so a member who uses it for one offset journey cannot use it again for another offset during the same posting.

Sixth, the transitional provisions in Schedule 2 apply only from 1 July 2021 (the date specified in each transitional section). Any costs incurred before that date are not covered. Seventh, the sunset dates are early: in-country offset expires 31 December 2021; quarantine and education expire 30 June 2022. A member who books travel after those dates will find the provisions have ceased. Eighth, the decision maker’s discretion to extend travel periods under section 15.3.39(3) and (5) is broad, but must be exercised “having regard to” four listed factors plus (in subsection (5)) being “satisfied that it is reasonable”. This is not a mere tick-box exercise; failure to properly consider each factor could invalidate the decision. Ninth, the region definitions for the travel restriction payment lack specific boundaries: “Pacific or South East Asia”, “North Asia, South Asia or Central Asia” - a member posted to, say, India (South Asia) might receive AUD 1,000, while a member in Indonesia (South East Asia) receives AUD 750, even if travel costs are similar. The classification may lead to disputes if a member believes their location is mischaracterised. Finally, the instrument does not specify how to apply for benefits; members must presumably follow internal Defence policies not published in this instrument. Failure to submit within any administrative deadline could forfeit entitlements.

Compliance with this instrument is primarily about correctly determining eligibility and properly exercising discretion. For members: the first step is to identify which benefit applies. For quarantine accommodation, the member must ensure that the travel is privately funded, that at the time of booking they have no eligibility for the listed travel benefits, and that the journey is from the overseas posting location to Australia with a mandatory quarantine period. The member should keep records of the booking date, the travel itinerary, quarantine orders, and receipts for any accommodation costs (though the benefit is paid at a fixed rate, not as reimbursement). For the travel restriction payment, the member must confirm that their posting ends before 30 June 2022, that the posting was not ended early at their request, and that they had no reasonable option to use assisted leave travel during the posting. They should gather evidence of cancelled flights, border closures, or health orders that prevented travel. The payment is only available after the posting ends, so the member should apply to the decision maker after the posting has concluded.

For the additional travel benefit under section 15.3.39, members on back-to-back overseas postings should seek approval from the decision maker before booking travel. They should provide reasons for any delay so the decision maker can consider the factors in subsection (3) or (5). The additional benefits under section 15.3.39A (excess baggage and rest periods) should be claimed separately under the relevant Determination provisions; note that accommodation, meals and incidentals are not covered by this section. For education support, the member must first ensure their child is receiving other education assistance under Part 15.6. They can then submit claims for tutoring or summer schooling costs up to AUD 135 per day for a maximum of 10 days. Receipts are essential as the benefit is a reimbursement. For in-country offset accommodation, the member must have offset their assisted leave travel under section 16.4.11. They should keep receipts for commercial accommodation and claim up to the caps.

Decision makers (senior ADF member at post and Director of Attaché and Overseas Management) must apply the criteria set out in each section. For the travel restriction payment, the key judgment is whether the person “had no reasonable option” to use assisted leave travel. This requires considering the circumstances: were flights available? Could the member have taken leave and traveled at another time? The note clarifying that a quarantine requirement does not prevent use is important , decision makers should not disqualify members solely because quarantine would have been required. For extending travel periods under section 15.3.39, decision makers must actively consider all four factors listed in subsection (3) and the additional COVID-19 factors in subsection (5). A decision record should document how each factor was weighed. Decision makers should also be aware of the sunset dates and the transitional provisions: if a member incurred costs between 1 July 2021 and the commencement, they may be entitled to retroactive benefits, and if they receive a transitional benefit, they cannot also claim under the ongoing provision for the same person.

All parties should remain mindful that overpayments are recoverable. Accurate record-keeping, timely applications, and adherence to the eligibility conditions will minimise the risk of disputes. Given the temporary nature of many provisions, members should not rely on these benefits beyond the stated sunset dates, and Defence should communicate the end dates clearly to prevent confusion. There is no statutory form prescribed in this instrument, so internal Defence administrative guidance should be consulted for application procedures. Legal advice should be sought if a decision maker is uncertain about the scope of discretion.