Defence Determination, Conditions of service Amendment Determination 2022 (No. 12)

This Determination amends the Defence Determination 2016/19, Conditions of service, in multiple discrete ways. Mechanically it:

• Extends existing salary non-reduction entitlements for specified table items in Annex 3.2.B Part 2 by substituting the earlier expiry date of 30 June 2022 with 31 January 2024 (Schedule 1, items 1-3).
• Changes remote locality allowance schedules and rates, replacing the tables in subsections 4.4.9.1 and 4.4.19.2, increasing certain annual and fortnightly rates, and updating a handful of other numeric rate items at sections 4.4.24, 4.4.31 and 4.4.36.2 (Schedule 2, items 1-5).
• Introduces a formal, statutory definition of an “adult child” for entitlements and adjusts dozens of provisions across Part 7 (housing, service residence eligibility, rent allowance, bedroom prescriptions and entitlements) to treat adult children similarly to dependants in many contexts (Schedule 3, item 1 and numerous follow-ups throughout Part 7).
• Makes miscellaneous amendments including removal or repeal of some paragraphs and sections, substitutes a new cap and decision-making route for payment of compulsory tuition fees for children with special needs (up to $32,432 a year, subject to CDF reasonableness) and specifies the channels for emergency support applications (Schedule 4, items 1-5 and item 2).
• Adds particular approved summer schools in Laos to Annex 15.6.B (Schedule 5).
• Inserts transitional provisions addressing retroactive coverage for salary non-reduction for certain members, loss/damage payments for members on Reserve service during a specific period, and reimbursement eligibility for members posted to Laos whose children attended the newly added summer schools between 22 June 2022 and the commencement of Schedule 5 (Schedule 6, items 2-4).

Commencement is staged. Sections 1-4 and any parts not otherwise specified commence on 1 September 2022. Schedules 1 and 3-6 commence on 1 September 2022; Schedule 2 (remote locality allowance changes) commences on 10 November 2022 (see Commencement table, section 2). The instrument is made under section 58B of the Defence Act 1903 (section 3) and expressly amends the Defence Determination 2016/19 as set out in the Schedules (section 4).

The Determination is an administrative instrument that modifies entitlement rules, numeric rates and eligibility categories. It creates or clarifies discretionary decision-making points (for example the decision maker who must be satisfied on an adult child’s continued cohabitation), adjusts payables (allowances and caps), and adds specific approved educational providers. It also contains transitional clauses that operate retrospectively for defined persons and time periods.

Several core concepts structure the changes. Two are particularly central: the statutory treatment of “adult child” and the re-calibrated remote locality allowances.

1. Adult child. The Determination inserts a new subsection 7.1.14A defining “adult child” as a person aged 21-25 who immediately before turning 21 was a dependant, and who, in the view of a designated decision maker, has continued to live with the member or an adult dependant since turning 21 (Schedule 3, new 7.1.14A). The Decision Maker is defined narrowly: Commanding Officer, Officer Commanding/Unit Executive (Air Force only) not below MAJ(E) in the member’s direct chain of command or supervision (7.1.14A(2)). This single definition is then propagated through numerous provisions that determine housing entitlement, rent allowance, suitability of own home, bedroom count rules and continuation of benefits where a member dies or relationships change (Schedule 3, multiple items).

2. Remote locality allowance. Schedule 2 replaces entire allowance tables. The substituted tables set specific rates by “location grade” A-E and by whether the member lives in, lives out, has dependants and lives at an establishment, or is a reservist required to live out while undertaking Reserve service. For example, the rates for a member who lives in (item 1) range from $1,055 (Grade A) to $6,030 (Grade E). Different columns and items apply where the member lives out and has dependants, where specific dependent circumstances apply, and where a member is posted to an establishment with dependants in residence (subsections 4.4.9.1 and 4.4.19.2 as substituted in Schedule 2). Schedule 2 also revises the annual rates at 4.4.24 (substitute $6,870), 4.4.31 (substitute items $15,075 and $8,305), and adjusts 4.4.36.2 from $8,221 to $8,305.

3. Salary non-reduction extension. The dates in Annex 3.2.B Part 2 table items 11, 18 and 23 are amended so that the salary non-reduction protection that would have expired on 30 June 2022 is continued through 31 January 2024 (Schedule 1, items 1-3). The transitional Schedule 6 clarifies that members who were eligible on 30 June 2022 remain eligible between 1 July 2022 and the commencement of this Determination as though Schedule 1 had applied at the time (Schedule 6, item 2).

4. Tuition fees cap for special-needs child. Subsection 8.4.14.5 is repealed and substituted to provide that a member is eligible for the cost of compulsory tuition fees up to $32,432 a year for a child with special needs to attend a private school with a special programme, where the Chief of the Defence Force (CDF) decides such payment is reasonable (Schedule 4, item 2).

The instrument primarily affects members of the Australian Defence Force, including those on Reserve service, plus their dependants and now a defined class of “adult children”. It also affects administrative actors within Defence with decision-making responsibilities (Commanding Officers and equivalents, the CDF), payroll and housing administrators, and in narrow ways external providers and organisations such as Defence Housing Australia and specified overseas summer schools.

• Members. All members governed by Defence Determination 2016/19 are within the scope, with particular impacts on:

  • Members whose pay or salary non-reduction protections were associated with Annex 3.2.B Part 2 table items 11, 18 and 23 (Schedule 1). The extension of those protections until 31 January 2024 affects who receives non-reduced salary treatment.
  • Members living in or posted to remote localities (Schedule 2). The new tables change rates depending on location grade, living-in or living-out status, and dependent circumstances. Those living out with dependants or who are reservists undertaking Reserve service and required to live out will be affected by the revised columns and rates (Schedule 2, substituted tables).
  • Members with dependants and/or adult children. The insertion of “adult children” across Part 7 explicitly impacts entitlement to Service residences, rent allowance, bedroom prescriptions and continuity of dwelling-related benefits (Schedule 3, numerous amendments). A member “without dependants who has an adult child” becomes a recurring categorical status for entitlement rules.
  • Members with children with special needs who seek tuition-fee assistance. The substituted clause at 8.4.14.5 changes the cap and grants the CDF discretion on reasonableness for payments up to $32,432 (Schedule 4, item 2).
  • Members dealing with loss or damage while on Reserve service during the specified period (Schedule 6, item 3).

• Dependants and adult children. Dependants remain central to many housing and allowance rules. The newly defined “adult child” gains recognition for many of the same entitlements as dependants in housing and rent contexts, subject to eligibility conditions (Schedule 3, new 7.1.14A and subsequent insertions across Part 7). Adult children aged 21-25, previously outside many dependant definitions, are now explicitly accounted for where they meet the living and prior-dependant conditions.

• Decision makers. The instrument allocates fact-finding power to specified commanders for determining whether the adult child has “continued to live with” the member since turning 21 (7.1.14A(2)). The CDF retains final discretion in at least one payment area; the substituted tuition fees clause vests the CDF with authority to decide reasonableness (Schedule 4, item 2).

The Determination modifies entitlements (rights to payment and accommodation) and creates or confirms duties for decision-makers and administration. It does not create criminal offences; rather it prescribes eligibility, discretion, and benefit calculation rules.

Key rights created or clarified

• Right to salary non-reduction where previously applicable. Members eligible under specified Annex 3.2.B Part 2 table items (11, 18, 23) retain salary non-reduction between 1 July 2022 and 31 January 2024 by virtue of the substitution and transitional clause (Schedule 1; Schedule 6, item 2).
• Rights to remote locality allowances at revised rates and under newly substituted tables (Schedule 2). The tables set clear entitlements by location grade and dependent status (for instance, subsection 4.4.9.1 and 4.4.19.2 substituted tables).
• Rights for adult children (21-25) to be treated, in several housing and allowance contexts, like dependants provided they were dependants immediately prior to turning 21 and the decision maker is satisfied they continued to live with the member (new 7.1.14A).
• Right to tuition-fee assistance for children with special needs up to $32,432 per year if the CDF decides payment is reasonable (substituted 8.4.14.5).
• Rights to reimbursement for attendance at newly approved summer schools in Laos for members posted to Laos who had children attend those schools between 22 June 2022 and the commencement of Schedule 5 (Schedule 6, item 4).

Key duties and decision-making obligations

• Decision makers (defined as specified commanders) have a duty to form a satisfaction that an adult child has continued to live with the member since turning 21 before treating that person as an adult child for entitlement purposes (7.1.14A(2)). That is a factual gatekeeping duty to be exercised in individual cases.
• The CDF has the duty to decide whether tuition fees up to the specified cap are reasonable, which is a discretionary determination of policy application (substituted 8.4.14.5).
• Administrative duties across Defence object to implement the substituted allowance tables and rates, update bedroom prescriptions, adjust Service residence allocations and rent ceilings, and process transitional reimbursements and payments where the Determination provides retrospective eligibility (Schedule 2, Schedule 3, Schedule 6).
• Members bear a duty to notify and provide documentary evidence where necessary to support entitlement claims (implied throughout Part 7; e.g. bedroom counts, continued cohabitation, and rent allowance eligibility). The instrument inserts textual tests and categories that will require administrative proof.

The Determination itself contains no penal provisions, criminal sanctions, or civil penalties. It operates by prescribing eligibility criteria, payment rates and administrative decision-making authorities within the Conditions of service regime. Enforcement therefore occurs through administrative systems: payment processes, entitlement reviews, and internal control mechanisms within Defence.

Key enforcement modalities and practical controls

• Administrative compliance and payroll enforcement. Changes to allowance rates and salary protections are enforced when payroll and entitlements are calculated. The substituted rate tables and date changes create numeric inputs for Defence payroll and housing payment systems (Schedule 1 and Schedule 2). Non-payment where an entitlement exists would be an administrative error to be remedied through internal claims processes, not a criminal offence derived from this Determination.
• Managerial decision-making and discretionary review. The Determination assigns subjective satisfaction tests (for adult child cohabitation) to specific commanders (7.1.14A(2)) and reasonableness determinations to the CDF (8.4.14.5). These are enforced by internal Defence procedural review and chain-of-command oversight; the instrument does not set statutory appeal mechanisms within the Determination itself.
• Continuation of benefits and exit dates. The Determination sets dates for continuation of occupancy (for example 7.6.60 for post-death occupancy by dependants or adult children), which function as administrative limits. Compliance is enforced by housing managers and Defence Housing Australia where relevant.
• Transitional claims processing. Schedule 6 sets retrospective eligibility for specific periods. Compliance with these transitional provisions will be enforced by application processing and reimbursement payment mechanisms embedded in administration.

External oversight and remedies

• The Determination does not itself set out appeal routes, judicial review language or external enforcement processes. Standard administrative law routes (judicial review of administrative decisions) and any grievance or internal review mechanisms available under broader Defence or public service frameworks remain the likely external remedies for disputes about the exercise of discretion, eligibility determinations, or erroneous payments. The instrument does not change those external avenues in text.
• Criminal or disciplinary consequences for false claims are not specified here. Any disciplinary or criminal consequences for misrepresentations or fraud would derive from separate Defence regulations, criminal law or the Defence Force Discipline Act, not from this instrument.

This Determination is expressly made under s58B of the Defence Act 1903 and functions as an amendment instrument to Defence Determination 2016/19, Conditions of service (section 3 and section 4). It thus operates within the Defence statutory framework and interacts with other instruments and documents referenced in the text.

Direct instrument interactions

• Defence Act 1903 (s58B). The power to make the Determination is sourced in s58B of the Defence Act 1903 (section 3). The Determination therefore sits as subordinate law under that Act and is subject to the limits and review mechanisms applicable to such instruments under Commonwealth law.
• Defence Determination 2016/19. This instrument amends that Determination in specific places identified in the Schedules. The mechanics are textual substitution, repeal and insertion across multiple chapters and annexes of that Defence Determination (section 4; Schedules 1-5).
• Defence Enterprise Agreement 2017-2020. The remote locality allowances table incorporates reference to district allowance under the Defence Enterprise Agreement 2017-2020 as in force on 16 August 2017 (Schedule 2, subsection 3.a.ii). That linkage means that interpreting some entitlement conditions will require reference to the Agreement as in force on that date.
• Defence Housing Australia. The amendments to Part 7 concerned with Service residences and surplus housing refer to arrangements with Defence Housing Australia and the allocation or application to surplus Service residences (several Schedule 3 items). Practically, Defence Housing Australia remains a partner or administrator for surplus housing offerings, meaning Defence’s internal rules interact with DHA’s operational procedures and agreements.
• Reserve service and Part 10/10.4. The Determination clarifies that Part 10.4.1A applies to any member including a member on Reserve service (Schedule 4, item 5), and provides transitional coverage for members on Reserve service who suffered loss or damage to clothing or personal effects between specific dates (Schedule 6, item 3). This creates cross-linkage between Reserve service rules in the Determination and these newly amended provisions.

Administrative law, contracts and external law

• Administrative decisions under the Determination (for example the satisfaction test for adult children and CDF reasonableness decisions) will be subject to judicial review under general administrative law principles (procedural fairness, reasonableness) but the Determination does not specify particular review procedures. Any exercise of discretion will therefore be reviewable in the ordinary way under Commonwealth administrative law.

This Determination itself is an amending instrument that changes Defence Determination 2016/19 as follows. The organised amendment history below reproduces the Schedules and lists the key textual changes and the commencement dates included in the instrument.

Commencement

• Sections 1 to 4 and any parts not otherwise covered: 1 September 2022.
• Schedules 1 and 3-6: 1 September 2022.
• Schedule 2 (remote locality allowances): 10 November 2022. (See section 2 Commencement table.)

Schedule 1 , Salary non-reduction provision extension amendments

• Amend Annex 3.2.B Part 2, table items 11, 18 and 23 by substituting the expiry date “30 June 2022” with “31 January 2024” (Schedule 1, items 1-3).

Schedule 2 , Remote locality allowances amendments

• Repeal and substitute the table at subsection 4.4.9.1 with new rates and conditions differentiated by location grade A-E and by whether the member lives in, lives out, has dependants, or is a Reservist undertaking Reserve service and required to live out (Schedule 2, item 1).
• Repeal and substitute the table at 4.4.19.2 for establishment-based dependent rates (Schedule 2, item 2).
• Substitute numeric amounts in section 4.4.24 (from $6,045 to $6,870) and 4.4.31 (annual rates substituted with $15,075 and $8,305 for paragraph 4.4.30.a and b respectively). Adjust 4.4.36.2 from $8,221 to $8,305 (Schedule 2, items 3-5).

Schedule 3 , Adult child amendments

• Insert new subsection 7.1.14A defining “Adult child” (age 21-25, was a dependant immediately before turning 21, and continued cohabitation since 21 as satisfied by the decision maker) and specify the identity of the decision maker (Commanding Officer, Officer Commanding/Unit Executive (Air Force only) not below MAJ(E)) (Schedule 3, item 1).
• Make numerous consequential amendments across Part 7, including:
  • Replace table item 2 in 7.1.16 to account for members with adult children.
  • Amend paragraphs and subsections throughout to add “adult children” to lists of persons affecting eligibility for removal, suitability of own home, prescribed bedroom counts, surplus Service residence rules, service residence eligibility at posting locations, rent allowance rules, reduced rent ceiling options and continuations of entitlement on death.
  • Repeal, substitute or remove several notes, examples and tables to align with the inclusion of adult children.

The Determination text itself does not reference any litigation, court decisions, or administrative appeals and contains no cases. It is an administrative amendment instrument and does not include judicial commentary or dispute outcomes. Accordingly:

• The source contains no litigation history, case names, or reported disputes about the provisions amended or inserted.
• Because this is an internal Defence Determination amendment, any disputes arising from its application would be litigated, if at all, under the ordinary course of administrative law and may involve judicial review applications, appeals under internal Defence review mechanisms, or disputes about entitlements processed through Defence channels. Those pathways are not set out in the Determination text.
• The Determination does include decision-making discretions (for example the commander’s satisfaction on cohabitation and the CDF’s assessment of reasonableness) that are typical targets for administrative law review. Any litigation would therefore focus on whether those exercises of discretion complied with legal standards such as rationality and procedural fairness. The Determination itself does not record any past litigation, nor does it create new statutory appeal procedures.

For practical purposes, lawyers and compliance officers should expect that disputes about interpretations, discretionary exercises and retrospective entitlement decisions would be resolved through existing administrative review and judicial review routes rather than by reference to new procedural remedies contained in this instrument.

The Determination contains numerous specific, operationally significant points that create traps for administrators or members if not noticed. Key “gotchas” drawn directly from the text:

1. Adult child is narrowly defined and subject to a factual satisfaction. The adult child definition requires three conditions: age 21-25; prior dependant status immediately before turning 21; and continued cohabitation since turning 21 subject to the decision maker being satisfied (new 7.1.14A(1)-(2)). The gatekeeping power rests with a commander not below MAJ(E). Practically this means adult child status is not automatic upon age; it is contingent on both a historical fact (dependant immediately before 21) and the commander’s satisfaction about ongoing cohabitation. Failure to obtain and document that satisfaction can cause entitlement denial.

2. The new category “member without dependants who has an adult child” recurs across many rules. Many parts of Part 7 now treat that category differently from both members with dependants and members without dependants who have no adult children. Administrators must record and track this category; legacy systems that only used “with dependants” and “without dependants” will need updating (Schedule 3, numerous items inserting this phrase).

3. Bedroom-count and housing suitability rules now count adult children. For every adult child not already covered by ownership or another paragraph, an extra bedroom is required (7.2.5.1A.d). That changes the calculation for minimum prescribed bedrooms and therefore can affect qualification for a Service residence versus rent allowance and make previously suitable own homes unsuitable on later postings (Schedule 3, items 5 and 6).

4. Extensive textual substitution across Part 7. The insertion of “adult children” appears in dozens of places. There is a material risk of inconsistent application if policy staff, housing managers and payroll do not synchronise all changes. The Determination repeals some notes and tables and inserts others; failure to follow the precise revised text can create entitlement errors.

5. Discretion by CDF for tuition fees. The substituted 8.4.14.5 caps the tuition fee assistance for special-needs children at $32,432 per year but only where the CDF “decides it is reasonable.” That is a broad discretion and may require members to make a formal application and present compelling evidence. Because discretion sits at CDF level, practical implementation may be delegated or supported by policy guidance, but none is included in the Determination text itself.

Compliance requires coordination across personnel policy, payroll, housing, and chain-of-command decision-making. Below is a practical, source-grounded checklist mapped to the Determination’s substantive changes.

1. Implement commencement-date workflows.

   • Make separate implementation plans for 1 September 2022 (most amendments, Schedule 1 and Schedules 3-6) and 10 November 2022 (remote locality allowance table substitutions in Schedule 2, section 2).
   • Identify existing payments and housing allocations that straddle these dates and prepare back-pay or reconciliation processes for retroactive transitional entitlements described in Schedule 6.

2. Update payroll and allowance systems for numeric changes.

   • Replace allowance tables in payroll with the substituted tables at 4.4.9.1 and 4.4.19.2, and amend numeric values at 4.4.24 and 4.4.31 and 4.4.36.2 per Schedule 2.
   • Extend salary non-reduction application logic for Annex 3.2.B Part 2 items 11, 18, 23 through 31 January 2024 (Schedule 1) and operate transitional coverage for members eligible on 30 June 2022 (Schedule 6, item 2).

3. Reconfigure housing allocations and bedroom calculations.

   • Apply the adult child definition (new 7.1.14A) in housing entitlement calculations. Ensure bedroom minimums now account for adult children (7.2.5.1A.d).
   • Update criteria for Service residence eligibility, surplus Service residence offers, acceptances of reduced bedrooms, and related forms to incorporate “member without dependants who has an adult child” as a distinct category (Schedule 3, multiple amendments).
   • Adjust documentation for members choosing reduced rent ceilings or acceptance of smaller Service residences (see substituted subsection 7.6.31.1 which requires choices in writing).

4. Set up decision-maker processes and recordkeeping.

   • Define an internal procedure for commanders (Commanding Officer, Officer Commanding/Unit Executive (Air Force only) not below MAJ(E)) to record the factual satisfaction that an adult child has continued to live with the member since turning 21 (7.1.14A(2)). The procedure should set out evidentiary standards and required documents (e.g. shared residency attestations, bills, school records) and retain a dated decision record.
   • Train relevant commanders on the scope of the satisfaction test, the need for consistency, record retention and how to communicate decisions to members and administrators.