Defence Determination, Conditions of service Amendment Determination 2021 (No. 17)

This instrument, the Defence Determination, Conditions of service Amendment Determination 2021 (No. 17), makes a series of targeted amendments to the Defence Determination 2016/19, Conditions of service. It was made under section 58B of the Defence Act 1903 by Fiona Louise McSpeerin, Assistant Secretary, People Policy and Employment Conditions, and dated 26 August 2021 (see the cover paragraphs and s 3). Sections 1 to 4 of the instrument commence the day after registration (s 2 table, item 1). The operative amendments in Schedules 1 to 4 are to commence on a day later fixed by the Assistant Secretary by notifiable instrument, and if not commenced within 12 months of registration those provisions are repealed (s 2 table, item 2).

Mechanically, the instrument does the following, by schedule:

• Schedule 1 removes the Division dealing with gratuities on retirement and invalidity, by omitting Chapter 2 Part 3 Division 2 of the 2016 Determination (Schedule 1, item 1). The existing statutory text on gratuities is therefore deleted from the Conditions of service as at the commencement date for the schedule.
• Schedule 2 makes miscellaneous drafting and structural edits in Chapter 4, chiefly deleting overview sections, examples and "see notes", altering a Part title (Divisions 5 to 8 for Antarctic allowances, item 8) and replacing the definitions for Antarctica, day of embarkation and day of disembarkation with new text at subsection 4.4.26 (item 9), and removing specific examples or notes across several provisions (items 2-7, 10-20). It also inserts a cross-reference to parking permits under Part 11 (item 17).
• Schedule 3 inserts and replaces multiple definitions and Part headings in Chapters 8, 10 and 11. It adds general provisions and specific definitions: e.g., compulsory tuition fees and Early Intervention Program (8.1.1); a new statutory definition of "emergency situation" (8.1.2); updated claimant and eligible dependant definitions for the National ADF Family Health Program (8.9.3); a revised bereavement payment provision (11.3.3) that defines gross fortnightly pay and prescribes payment of four times that amount in four equal fortnightly instalments; and a defined legal personal representative (11.4.4A). It also amends cross‑references to the Safety, Rehabilitation and Compensation Act 1988 and Health Insurance Act 1973 where those Acts are used as definitional sources (see Schedule 3, items throughout).
• Schedule 4 implements a large number of operational amendments across Chapters 12 to 17 and 14 to 16 etc. The recurring mechanical pattern is substitution of language that removes the words "at Commonwealth expense" and replaces them with phrases that: require the use of benefits "provided under this Determination", convert direct payment by the Commonwealth into reimbursement or capped reimbursement, or restate eligibility criteria in terms of CDF approval or demonstrable interests of the Commonwealth. Schedule 4 also inserts a rank‑based weekly rent and utilities contribution table for members occupying living‑in accommodation (15.4.20), restricts eligibility for transport of private vehicles (15.3.5.3), revises rules for evacuation storage and approved visitor entitlements, and narrows spouse/partner travel assistance for short‑term duty overseas to representational travel demonstrably in the interests of the Commonwealth with CDF satisfaction (item 4).

The instrument therefore operates primarily as a technical and substantive rephrasing and retargeting of benefits and eligibility rules in the Defence Determination. It converts multiple direct payment obligations into entitlement structures governed by the Determination, updates and centralises several definitions, and removes one benefits Division (gratuities). The amendments increase explicit reliance on internal administrative systems like PMKeyS for eligibility (see Schedule 3, definitions for "eligible dependant" and "claimant" in 8.9.3), and increase the role of CDF discretion in several approvals (for example spouse travel at item 4 in Schedule 4, and approved visitors at Schedule 4, items 52-56). The technical authority for the instrument is s 58B of the Defence Act 1903 (s 3).

The instrument relies on a small set of repeating structural concepts and drafting moves that determine how the Determination will operate post‑amendment. Those concepts, as drawn directly from the instrument, are:

• Removal of entire benefit provisions: Schedule 1 deletes Chapter 2 Part 3 Division 2 (Gratuities on retirement and invalidity). The immediate legal effect is that any entitlement previously contained in that Division is no longer in the Conditions of service text once the schedule commences (Schedule 1, item 1). Any operational fallback depends on other law or policy not included in this instrument.
• Replacing payment modalities with "benefit provided under this Determination" or reimbursements: Across Schedule 4 the instrument repeatedly substitutes phrases such as "at Commonwealth expense" with "under this Determination", "expenses", or specific reimbursement wording (multiple items in Schedule 4, e.g. items 3, 11-16, 21, 22, 25, 29, 33, 34). Mechanically, this changes the contract or administrative relationship between the Commonwealth and the member from an automatic Commonwealth payment to a benefit or reimbursement mechanism that is defined by the Determination.
• Tightening definitional gates: Schedule 3 inserts or replaces definitions in Chapters 8, 10 and 11, including a formal test for "eligible dependant" that requires PMKeyS listing and program registration for the National ADF Family Health Program (8.9.3), a precise definition of "emergency situation" (8.1.2), and definitions that draw explicitly on other Commonwealth statutes (Health Insurance Act 1973, Safety, Rehabilitation and Compensation Act 1988) for terms such as "general practitioner", "specialist", "impairment", "non‑economic loss" and "SRC Compensation" (8.9.3, 11.2.4). Mechanically this channels eligibility and benefit calculations through existing administrative databases and Commonwealth statutory vocabularies.
• Deleting examples, notes and overview material: Schedule 2 systematically removes "see notes", examples, and overview sections in Chapter 4 (Schedule 2, items 2-7, 12-16). The Main conceptual effect is less in‑instrument guidance and more reliance on the operative sections and administrative interpretation, which increases the importance of administrative practice and guidance external to the Determination.
• Delegated discretion linked to CDF satisfaction: Several amended or new provisions require the Chief of the Defence Force to be "satisfied" before a benefit is paid or travel is authorised. Examples include spouse travel for short‑term duty overseas (Schedule 4, item 4) which now requires travel to be for representational purposes and for the CDF to be satisfied it is demonstrably in the interests of the Commonwealth. Approved visitors for hospitalised members must be approved by the CDF (Schedule 4, item 52). The mechanical effect is to concentrate decision‑making on eligibility for certain discretionary benefits in the office of the CDF.

The instrument affects anyone whose entitlements, eligibility or administrative relationships are governed by the Defence Determination 2016/19, Conditions of service. The affected groups are:

• Serving members of the Australian Defence Force, both permanent and Reserves: the amendments explicitly state that references to a member include a member of the Reserves despite section 1.2.2 (see Schedule 3, 11.2.4 definition of "Member"). Many benefit changes such as travel, removals, storage during evacuation, living‑in accommodation contributions, and vehicle transport directly alter member entitlements (Schedule 4 multiple items, e.g. 11, 12, 26, 28, 30, 35-37).
• Dependants and eligible dependants: the amended definitions in Schedule 3 (8.9.3) require dependants to be listed on PMKeyS and registered for the National ADF Family Health Program to be "eligible dependant" for the program. This affects family members claiming family health benefits, travel, removals and approved visitor entitlements. The bereavement payment provision (11.3.3) targets "dependent person" and prescribes payment mechanics; the definition in 11.3.3(1) and the requirement that there be a dependent person (11.3.3(3)) set the scope for who receives bereavement payments.
• Prospective claimants for family health, travel and accommodation benefits: the instrument makes eligibility conditional on administrative enrolment (e.g., PMKeyS and program registration), and on CDF approval for certain discretionary benefits, so dependants and other potential claimants must ensure they are registered and/or obtain approvals to qualify.
• Members seeking spouse or partner travel on short‑term duty overseas: the new test requires representational travel and that the CDF be satisfied it is "demonstrably in the interests of the Commonwealth" (Schedule 4, item 4), narrowing eligibility relative to a simple entitlement. The spouse or partner must therefore be part of a representational function to be eligible.
• Members who previously relied on gratuities on retirement or invalidity: Schedule 1 deletes that entire Division, so those who expect gratuities will be affected when that schedule commences.
• Members seeking insurance reimbursement for personal effects carried on overseas visits: the insurer reimbursement is limited to the lesser of the premium paid and a premium that would insure personal effects for AUD 3,000 (Schedule 4, item 5).
• Members and dependants in evacuation circumstances: the instrument specifies what storage entitlements apply during evacuation and expands the types of items eligible for storage (private vehicles included) (Schedule 4, item 28).

The instrument creates, clarifies and modifies a series of member rights to benefits and corresponding administrative duties. Key operative rights and duties that the Determination will govern after the amendments include:

• Elimination of gratuity right: the deletion of the Divison on gratuities on retirement and invalidity removes any Determination‑based right to a gratuity payment under Chapter 2 Part 3 Division 2 of the 2016 Determination (Schedule 1, item 1). Members and payroll administrators must note the absence of that entitlement once the schedule commences.
• Eligibility gates tied to administrative registration: for the National ADF Family Health Program, an "eligible dependant" must be listed on PMKeyS and registered for the program (Schedule 3, 8.9.3). The right to program benefits therefore depends on the administrative duty of registration and correct PMKeyS listing; members and dependants must ensure those entries are current to assert claims.
• Bereavement payment mechanics and calculation: a dependent person may be eligible for a bereavement payment equal to four times the deceased member's "gross fortnightly pay", paid in four equal fortnightly instalments starting on the first day of the pay period after death (Schedule 3, 11.3.3(4)-(5)). Gross fortnightly pay is defined to include salary and allowances and to include amounts for income tax, superannuation and debt due to the Commonwealth; an alternative calculation based on the average of gross fortnightly pay in the last three months is provided if larger (Schedule 3, 11.3.3(1)(a)-(b)).
• CDF approval duty for specified discretionary benefits: the CDF must be satisfied before certain benefits are awarded. For example, spouse or partner travel for short‑term duty overseas is limited to representational travel demonstrably in the interests of the Commonwealth, and the CDF must be satisfied of that fact before approving travel assistance (Schedule 4, item 4). Approved visitors for hospitalised members must be approved by the CDF (Schedule 4, item 52). These clauses create a procedural duty on decision‑makers to form a satisfaction before authorising expenditure.
• Reimbursement and cap rights: for personal effects insurance while on overseas visits a member has the right to be reimbursed up to the lesser of the amount of the premium they paid or the cost of a premium that would insure AUD 3,000 (Schedule 4, item 5). Several travel and removal entitlements are rephrased to reimburse members or provide a benefit under the Determination rather than direct Commonwealth payment; the right is therefore a reimbursement right subject to the Determination's payment rules.

The Amendment Determination itself contains few provisions that create criminal offences or statutory fines. Its enforcement architecture, as visible in the text, rests primarily on civil and administrative mechanisms rather than penal sanctions. Key enforcement and recovery mechanisms supplied or clarified by the instrument include:

• Repayment and recovery obligations: two substituted sections in Schedule 4 make repayment an explicit administrative requirement. Substituted 15.6.6 provides that if a member is refunded an amount from a provider for a benefit that has been paid to the provider or reimbursed to the member, the member must repay the part of the benefit that is refunded. The substituted 15.5.24.3 requires members who request payment for a health service instead of reimbursement to repay any amount that exceeds eligibility (Schedule 4, items 44-45). These are statutory obligations enforceable by administrative recovery processes; the Determination creates the duty to repay and authorises administrative collection, but it does not itself set out criminal penalties.
• Administrative discretion and decision records: where benefits hinge on CDF satisfaction (for example spouse travel for representational purposes, Schedule 4, item 4; approved visitors, Schedule 4, item 52), the enforcement mechanism will be the CDF's power to refuse or approve the benefit. Administrative decisions may be subject to internal review or merits review mechanisms established by Defence, and ultimately to judicial review in the Federal Court if legal error is alleged, though the instrument does not itself create a court remedy.
• Caps and limitations as ex ante controls: the Determination imposes caps and fixed contributions that function as de facto cost controls. For example, insurance reimbursements for personal effects are capped by reference to a AUD 3,000 insurance level (Schedule 4, item 5), and rent and utilities contributions are fixed weekly amounts by rank (15.4.20). These caps limit entitlement and reduce the need for after‑the‑fact recovery.
• No new criminal sanctions specified: the instrument does not add or amend criminal or disciplinary offence provisions in the Defence Act or other Commonwealth statutes. Any misconduct or criminal enforcement arising from non‑compliance by members would continue to be pursued under the Defence Act, Defence Force Discipline Act or general Commonwealth criminal law where applicable, but the instrument itself does not prescribe such measures.
• Reliance on PMKeyS and related administrative systems: eligibility determinations tied to PMKeyS listing and registration for programs create an enforcement mechanism by making the administrative database the gating mechanism. Failure to be correctly recorded or registered will functionally deny entitlement and provide a clear administrative basis for rejecting claims.

The instrument explicitly references and imports concepts from other Commonwealth legislation and administrative systems, and it operates as a statutory instrument under the Defence Act 1903. The key legal interactions visible in the text are:

• Defence Act 1903, section 58B: the Determination is made under s 58B of the Defence Act 1903 (s 3). That Act provides the statutory authority to make Determinations about conditions of service. The power to amend the Conditions of service by instrument rests with the executive through the power conferred by s 58B; judicial review of exercises of that statutory power remains available under general administrative law principles if a legal question arises, though the instrument contains no express privative clause.
• Safety, Rehabilitation and Compensation Act 1988 (SRC Act): Schedule 3 (11.2.4) imports definitions and amounts from the SRC Act, using terms such as "non‑economic loss", "SRC Compensation" and "impairment" as defined in section 4 of the SRC Act. Bereavement and compensation calculations and interactions would therefore need to be read alongside the SRC Act where the Determination cross‑refers to it.
• Health Insurance Act 1973 and Medicare: Schedule 3 (8.9.3) draws on the Health Insurance Act 1973 for definitions of "general practitioner" and "specialist", and uses the statutory notion of Medicare benefits and Medicare rebates to define "out of pocket expenses" and the boundaries of benefit reimbursements under the National ADF Family Health Program. This links entitlement calculations directly to Medicare law and rebate schedules.
• Antarctic Marine Living Resources Conservation Act 1981: Schedule 2 replaces definitions for "Antarctic Convergence" with the same meaning as clause 4 of the Convention on the Conservation of Antarctic Marine Living Resources, as set out in the Schedule to the Antarctic Marine Living Resources Conservation Act 1981 (Schedule 2, item 9, 4.4.26). This cross‑reference aligns the Determination's geographic definition of Antarctica with an external statutory schedule.
• PMKeyS and Defence administrative systems: the Determination makes PMKeyS the authoritative record for dependants for the National ADF Family Health Program (Schedule 3, 8.9.3). That ties benefits eligibility to internal administrative data and introduces operational dependency on the reliability and integrity of PMKeyS entries.
• Interaction with DVA: the definition of "The Secretary" in 11.2.4 is the Secretary of the Department of Veterans' Affairs (Schedule 3, 11.2.4). This indicates that determinations involving death benefits and certain compensation amounts or interactions will involve the Department of Veterans' Affairs as a relevant external actor.

The instrument itself records the following formal amendment history points and commencement mechanics:

• Date and making authority: made by Fiona Louise McSpeerin, Assistant Secretary, People Policy and Employment Conditions, Defence People Group, dated 26 August 2021 (cover material). The statutory authority for making the Determination is section 58B of the Defence Act 1903 (s 3).
• Commencement structure: Sections 1-4 of the instrument commence the day after the instrument is registered (s 2 table, item 1). Schedules 1-4 are to commence on a day fixed by the Assistant Secretary People Policy and Employment Conditions by notifiable instrument; if they do not commence within 12 months of registration, they are repealed on the day after that 12‑month period ends (s 2 table, item 2).
• Scope of amendments: The instrument amends the Defence Determination 2016/19, Conditions of service by specifically amending or substituting multiple sections across Chapters 2, 4, 8, 10, 11, 12-17 etc. Each schedule sets out items that omit, substitute, insert, or alter text in the 2016 Determination. The instrument’s contents list enumerates four schedules focused on gratuities, miscellaneous amendments to Chapter 4, definitions for Chapters 8/10/11, and other miscellaneous amendments.
• Non‑automatic commencement and repeal clause: s 2 includes an express contingency that Schedules 1-4 must be commenced via a notifiable instrument within 12 months or be repealed. That creates a formal window for administrative commencement and an automatic expiry risk if the Assistant Secretary does not act; the schedule‑level commencement is therefore discretionary rather than immediate.
• Textual replacement patterns: The amendments follow a consistent drafting approach across multiple items,omitting "at Commonwealth expense", substituting "under this Determination", removing examples and see notes, and inserting precise definitions linked to other Acts. The instrument does not record prior versions of the 2016 Determination or earlier amendments; it operates as an amending instrument to the text of 2016/19.

No further amendment history or prior instrument references are included in the text provided. The instrument’s commencement mechanism and the Assistant Secretary’s power to fix commencement dates by notifiable instrument are the most significant procedural amendment history items that practitioners must observe. If the Assistant Secretary chooses not to notify a commencement date within 12 months, the relevant Schedules are repealed by operation of the instrument’s own terms (s 2 table, item 2).

The instrument as supplied contains no references to litigation, cases, judgments or prior judicial consideration. It does not cite any decisions or specify judicial interpretations or disputes over the provisions it amends. The text names no cases and records no litigation history.

That absence of litigation in the instrument’s text does not preclude future challenges. The amendments create discretionary decision points (for example CDF satisfactions) and administrative entitlement gates that could, in principle, be subject to:

• Judicial review challenges: administrative decisions made under the Determination that are alleged to be affected by jurisdictional error, irrationality, denial of procedural fairness, or misinterpretation of the Determination could be brought to the Federal Court or a relevant tribunal under general administrative law principles. The instrument itself does not limit judicial review; practitioners should note that decisions exercising CDF satisfaction or denying reimbursements may attract review.
• Contractual or statutory claims: disputes over whether a member is entitled to a benefit or whether an administrative decision complied with the Determination could give rise to statutory entitlements litigation or claims for recovery of overpayments. The Determination’s repayment provisions create administrative collection rights that could produce disputes over calculation and timeliness.
• Interagency or cross‑statute disputes: because the Determination imports definitions and entitlement calculations that depend on Medicare rebates and SRC Act definitions, disagreements about how those external statutory schemes interact with the Determination might surface in litigation, particularly where compensation or bereavement payments intersect with entitlements under the SRC Act. The instrument does not record any such cases.

At present, because the amending instrument post‑dates the 2016 Determination and simply modifies its text, any litigation history relevant to the amended text will be built after these amendments are implemented and applied by Defence. Practitioners should monitor administrative decision‑making under the amended provisions and consider judicial review and merits review avenues where alleged legal error or unfair process arises, acknowledging that the instrument itself contains neither case law citations nor litigation history.

Several practical traps and interpretive hazards arise directly from the text of the amending instrument. These are concrete points where administrative practice or member expectation may diverge from the Determination's new text, or where an implementation risk exists:

• Commencement window and automatic repeal: Schedules 1-4 do not commence automatically; they require a notifiable instrument by the Assistant Secretary within 12 months, otherwise they are repealed (s 2 table, item 2). If a practitioner or member expects the changes to be effective immediately, they must check whether the Assistant Secretary has notified commencement. Failure to do so may lead to incorrect assumptions about entitlement or removal of gratuities.
• Deletion of gratuities: Schedule 1 omits Chapter 2 Part 3 Division 2 entirely. Members relying on any gratuity on retirement or invalidity that was in the 2016 Determination must check whether alternative entitlements exist elsewhere, because the Determination text no longer contains that Division after commencement (Schedule 1, item 1). The instrument does not explain transitional arrangements or whether entitlements accrued prior to commencement are preserved; absence of such wording is a potential litigation or transitional issue.
• PMKeyS gating for dependants and approved visitors: Multiple provisions tie eligibility to PMKeyS listings and program registration. Schedule 3 requires dependants to be "listed on PMKeyS" and "registered for the program" to be eligible for the National ADF Family Health Program (8.9.3). Schedule 4 also uses PMKeyS for primary emergency contact listings for approved visitors (item 52). Administrative errors or delays in PMKeyS entries will directly deny entitlements; members must be proactive about ensuring records are accurate.
• Reimbursement modality and documentation burden: The replacement of "at Commonwealth expense" with reimbursement or "benefit provided under this Determination" in multiple places shifts up‑front costs and outlays to members in many cases. Members will need receipts and may face cashflow issues for large items such as removals or insurance premiums, because the Determination often requires reimbursement rather than direct payment (Schedule 4 pervasive substitutions).
• Caps and flat contributions: fixed caps and contributions are concrete numbers in the text. For example, the rent and utilities contribution table sets weekly amounts for members in living‑in accommodation (15.4.20). The insurance reimbursement cap for personal effects carried overseas is tied to a notional AUD 3,000 insurance level (Schedule 4, item 5). Members cannot claim above these caps; administrators must implement the exact amounts.

To comply with the amended Determination operationally and to advise clients or members accurately, follow these practical steps grounded in the instrument’s text:

1. Confirm commencement dates: verify whether Schedules 1-4 have been commenced by a notifiable instrument from the Assistant Secretary within the 12‑month window provided by s 2. Until those schedules commence, the underlying 2016 Determination text applies. Maintain a central register of commencement notices from Defence and update policy documents only after official commencement.
2. Update PMKeyS listings and program registration: because the National ADF Family Health Program and approved visitor entitlements depend on PMKeyS entries and program registration (Schedule 3, 8.9.3; Schedule 4, item 52), instruct members and administrative staff to confirm dependants are correctly listed on PMKeyS and to complete any program registration steps required for family health benefits. Treat PMKeyS as the authoritative gate for eligible dependants.
3. Revise payroll and benefits processes: implement the bereavement payment calculation per Schedule 3, 11.3.3, ensuring payroll systems include the Determination’s definition of "gross fortnightly pay" which explicitly incorporates salary, allowances, tax, superannuation and debts due to the Commonwealth. Update payroll to apply the rent and utilities contributions in 15.4.20, with deductions or reconciliations aligned to the specified AUD weekly amounts by rank.
4. Train decision‑makers on CDF satisfaction and documentation: where benefits require the CDF to be "satisfied" (e.g., spouse travel for representational purposes, approved visitors), create a documented decision workflow and template that records the factual basis for the satisfaction. Ensure decisions note the statutory criteria set out in the Determination so that administrative reasons are available for review or audit.
5. Redesign claims and reimbursement workflows: replace any direct payment workflows with reimbursement procedures where the Determination substitutes "at Commonwealth expense" with reimbursements or benefits under the Determination (Schedule 4 pervasive). Require claimants to provide receipts and documentary proof; capture timing rules for reimbursement and create controls to avoid double payments. Implement a process to notify payroll of refunds from providers to trigger repayment obligations under substituted 15.6.6.
6. Review and cap insurer and removal arrangements: for personal effects carried overseas, ensure member claims are capped at the lesser of the premium paid and the cost of a premium for AUD 3,000 coverage (Schedule 4, item 5). For removal and storage entitlements that now require private arrangements with reimbursement limited to the cost of the benefit under the Determination (Schedule 4, items 11, 12, 17), require prior CDF approval where the Determination requires it; otherwise warn members about reimbursement caps.