Defence Determination, Conditions of service Amendment Determination 2022 (No. 13)

The determination relies on several concepts defined or implicitly used in the Defence Determination 2016/19. A “travel period” for domestic purposes is defined under Chapter 9 Part 5; for overseas travel it means a period during which a member is eligible for a benefit under Chapter 13. The “travel card” refers to the Defence travel card, a payment instrument previously used to pay for meals, incidentals and accommodation directly. The amendment severs the link between the card and many entitlements, so that members instead become “eligible for” specified rates or allowances, which are likely paid as reimbursement or advance, not through card use. “Incidentals” are small daily expenses (laundry, tips, etc.) for which a daily rate is provided; before amendment the rate was a maximum spendable amount via the card; after amendment it becomes a fixed allowance. “Living‑in accommodation” covers barracks or mess‑style housing where compulsory mess charges and meal provisions apply; the incidental rate after 21 days drops sharply to $10.30 per day. “Short‑term duty overseas” is a discrete category covering approved travel outside Australia for a limited period, with separate accommodation, meal and incidental rates per rank (Brigadier or higher vs Colonel or lower). “Equipment benefit” covers items such as travel adaptors or luggage, now limited to $115 or $225 per three years, with a repayment condition if travel does not occur. “Reserve service” is included under the new subsection 9.5.26.1 for members who stay overnight after a period of duty if they live more than 30 km from their place of duty and the CDF decides it is necessary for occupational health and safety reasons. The “savings provision” maintains existing rights for members whose travel period started before 10 October 2022, preventing retroactive application. The concept of “reasonable standard” appears in the overseas accommodation rate, linking eligibility to rank and duty nature, vesting discretion in the CDF. The determination also introduces a pro‑rata calculation for weekly incidental amounts (parts of a week are worked out pro rata), and a two‑thirds reduction for overseas meal amounts when a member is in long‑stay accommodation with cooking facilities. These machinery changes underscore a shift from a “pay by card with ceiling” model to a “eligible for fixed sum” model, altering the timing and certainty of member reimbursement.

The primary group affected is all members of the Australian Defence Force (ADF), including those on Reserve service, who undertake Defence‑approved travel within Australia or overseas for short‑term duty. Members posted to living‑in accommodation during training courses are specifically captured by the new section 9.5.20, which differentiates their entitlements after the 21‑day mark. Members on Reserve service who stay overnight due to occupational health and safety considerations (more than 30 km from their place of duty) are expressly included in section 9.5.26.1, which now refers to sections 9.5.16, 9.5.17 or 9.5.20, rather than just the travel card provisions. The amendment also affects members on posting travel, leave travel, or travel on ceasing continuous full‑time service, as these categories are now covered under the new section 9.5.33 for the domestic allowance Division. For overseas travel, members are separated by rank: Brigadier or higher have different meal and incidental rates (Part 1 of Annex 13.3.A) compared to Colonel or lower (Part 2). Members who purchase equipment under section 13.3.18 but then do not go overseas are directly hit by the repayment obligation; only those who can satisfy the CDF that they cannot recover the cost are exempt. Administrators in Defence People Group and finance officers responsible for processing travel claims are affected, as the payment method changes from travel card spending to allowance payment, which may require adjustments to payroll systems and expense processing workflows. The CDF (or delegates) gains additional discretion under several provisions: to decide whether meal and incidental costs are reasonable (section 9.5.29), to waive equipment repayment if recovery is impossible (section 13.3.18(5)), and to approve additional equipment if the standard limit is insufficient (section 13.3.19). The Australian Taxation Office and salary administration are indirectly affected because allowances are typically taxable differently than direct card payments. Finally, any member whose travel period straddled the commencement date (10 October 2022) is affected by the savings provision, which preserves old rules for periods starting before that date but imposes new rules for any period starting on or after it. The effect is to create a bifurcated regime for overlapping travel arrangements.

The determination imposes duties on both members and the CDF and confers new or altered rights. Members have the right to receive an allowance for accommodation, meals and incidentals at the specified rates, rather than having those costs paid directly via travel card. For domestic travel, the right to use the travel card for meals and incidentals under sections 9.5.16 and 9.5.17 expires at midnight on the 21st day of the travel period. After that point, the right is to the rates under section 9.5.22: accommodation per night at Annex 9.5.B Part 1, meals per meal period at Part 2, and incidentals at $72.10 per week pro rata. For living‑in accommodation, the right is limited to compulsory mess charges, accommodation charges, meals, and incidentals at $10.30 per day after 21 days (section 9.5.20.2). Members on Reserve service have the right to overnight accommodation and incidentals only if the CDF determines it necessary for occupational health and safety reasons (section 9.5.26.1). Members have a duty to repay the full equipment benefit if they purchase equipment but then do not go overseas, unless the CDF is satisfied they cannot recover the cost (section 13.3.18(4) and (5)). A member’s right to additional equipment under section 13.3.19 is conditional on the CDF’s satisfaction that the standard limits are insufficient. The CDF has a duty to consider relevant factors when deciding reasonableness of meal and incidental costs under section 9.5.29.2: the places the journey goes through and the availability of suitable meals. For overseas short‑term duty, the CDF must determine the reasonable accommodation standard based on rank and duty nature (new section 13.3.6). Members have the right to be free from meal cost deductions if a meal is provided at no cost or included in a fare (section 13.3.8(1)). Members staying overseas for five days or longer in accommodation with cooking facilities have only a right to two‑thirds of the meal rate (section 13.3.8(4)). Members in hospital overseas retain the right to incidentals at the Colonel‑or‑lower rate plus unavoidable accommodation charges (section 13.3.13). A member’s eligibility for any unused meal or incidental amounts ceases at the end of the travel period (new section 9.5.30). This final provision effectively cancels any carry‑over of entitlements, preventing members from stockpiling unspent allowances across trips.

The amendment determination itself does not set out specific penalties; rather, it operates within the broader framework of the Defence Act 1903 and the Defence Determination 2016/19. The most direct enforcement mechanism is the repayment obligation under section 13.3.18(4): if a member buys equipment (e.g., travel adaptors, luggage) using the equipment benefit and then fails to travel overseas, they must repay the full amount. The only escape is if the CDF is satisfied that the member cannot recover the cost from the seller or otherwise. This creates a financial penalty for cancelled travel, which may be harsh if the member had no control over the cancellation. There is no explicit criminal penalty in this instrument, but misuse of the travel card or claiming allowances to which one is not entitled could constitute fraud under the Public Governance, Performance and Accountability Act 2013 or the Criminal Code. The removal of travel card references reduces the scope for card misuse for personal expenses, but introduces a new risk: members may claim the new allowances for periods they did not actually travel, as there is no direct card transaction to audit. The pro‑rata incidental calculation for parts of a week imposes a duty on members to accurately report the exact duration of travel after 21 days. Over‑claiming could trigger administrative recovery action or disciplinary proceedings under the Defence Force Discipline Act 1982. The CDF’s discretion to waive equipment repayment under section 13.3.18(5) creates an avenue for leniency, but the criteria are vague (“unable to recover the cost of any items they bought”), leaving members uncertain about whether they will be held liable. For savings provision members whose pre‑10 October 2022 travel period continues, the old enforcement rules remain, which may include different audit trails and recovery methods. The amendment also omits any sunset or review clause, so the new rules will continue indefinitely unless further amended. For administrative staff, incorrectly applying the 21‑day cut‑off or misapplying the pro‑rata calculation could lead to underpayment claims from members or overpayment recovery actions. The absence of explicit penalties for failure to repay equipment benefits means enforcement likely relies on standard debt recovery processes within Defence, which may include salary deductions or civil proceedings. Overall, the enforcement burden shifts from policing card usage to verifying eligibility periods and actual travel, which may require new compliance processes.

This instrument is made under section 58B of the Defence Act 1903, which confers power to make determinations about conditions of service for members of the ADF. The Defence Determination 2016/19 is a legislative instrument that sits under that Act, and this amendment alters specific provisions within it. The determination interacts with the Defence Force Discipline Act 1982, which may penalise false claims for allowances or misuse of entitlements. The Public Governance, Performance and Accountability Act 2013 (PGPA Act) governs the proper use of Commonwealth resources; any allowance or benefit paid under this determination must be accounted for under the PGPA Framework. The removal of travel card usage means that members will likely receive allowances as cash payments (or direct deposit), which have different tax treatment under the Income Tax Assessment Act 1936 and 1997 - travel allowances may be subject to Fringe Benefits Tax rules or be assessable income depending on whether they exceed reasonable amounts. The determination also interacts with the Fair Work Act 2009 only indirectly, as ADF members are not employees under that Act, but the allowances could affect any application of the National Employment Standards through analogy. The savings provision ensures consistency with the Acts Interpretation Act 1901, preserving rights accrued before the amendment. For Reserve members, the interaction with the Defence (Reserves) Act 2001 is relevant, particularly the conditions under which Reserve service is deemed continuous. The determination’s use of “CDF” as the decision‑maker may be further delegated under section 58B itself or other Defence instruments, interacting with the Defence Regulation 2016. The amendment also touches on occupational health and safety obligations, referencing the CDF’s consideration of “occupational health and safety reasons” in section 9.5.26.1, which links to the Work Health and Safety Act 2011 (Cth) as applied to Defence. For overseas travel, the determination may interact with the Overseas Travel (Defence) Determination and any bilateral agreements about host nation support, but the text does not reference them. The limits on accommodation and meals for overseas short‑term duty are linked to Annex 13.3.A, which is amendable separately, creating a dynamic interaction with future cost of living updates. The removal of references to “using the travel card” may necessitate changes to separate Defence travel policies and cardholder agreements, though those are not legislative instruments. Overall, the determination is a small piece in a larger mosaic of service conditions, and practitioners must read it alongside the principal Determination and its Annexes.

This instrument is the Defence Determination, Conditions of service Amendment Determination 2022 (No. 13). It was made on 5 October 2022 by Fiona Louise McSpeerin, Assistant Secretary, People Policy and Employment Conditions, Defence People Group, under the authority of section 58B of the Defence Act 1903. It commenced on 10 October 2022. The instrument amends the principal Determination - Defence Determination 2016/19, Conditions of service - which itself has been amended many times since 2016. This is the 13th amendment determination of 2022, indicating a steady stream of changes to service conditions throughout that year. The instrument itself does not disclose any earlier amendments relevant to the provisions it changes, so one cannot determine whether sections 9.5.6, 9.5.7, 9.5.31, 9.5.32, 13.3.14, or 13.3.20 (all repealed) were previously amended. The repeals and substitutions are extensive, affecting 34 schedule items across two schedules. The savings provision in Schedule 2 is a common technique to avoid retrospective application. There is no mention of a sunset clause, review date, or transitional period beyond the savings provision. Since this is a determination under delegated legislation, it is not subject to parliamentary debate, but it is disallowable by either House of the Commonwealth Parliament under the Legislation Act 2003. Any person interested could have petitioned for disallowance within 15 sitting days of tabling. The instrument does not cite any prior amendment determinations that influenced these changes, nor does it refer to any external reviews or reports. Given the numbering (No. 13) in 2022, one can infer that the Defence Determination is amended frequently, sometimes several times a year. This pattern imposes a compliance burden on ADF members and administrators who must keep track of the current version of provisions. The precise date of effect (10 October 2022) is the start of a new travel week, which may have been chosen for administrative convenience. The instrument’s structure is mechanical: it lists each section to be repealed, substituted, or omitted, with no explanatory note or policy rationale. The authority section (clause 3) confirms the lawful basis under section 58B, which is a broad power to “make determinations, not inconsistent with this Act, prescribing conditions of service”. The amendment history for the principal Determination is not reproduced here, but this instrument is the most recent layer.

There is no litigation history cited in the instrument itself, and given that it is a legislative instrument less than two years old (as of mid‑2024), there are likely no reported cases interpreting its provisions. The source text provides no reference to any judicial decisions, Administrative Appeals Tribunal (AAT) rulings, or Defence Force Remuneration Tribunal determinations. However, the underlying provisions of the Defence Determination 2016/19 have been subject to litigation in the past, particularly regarding the interpretation of “reasonable” expenses and the application of the travel card rules. The Federal Court of Australia and the AAT have occasionally dealt with Defence entitlements under the Defence Act and related determinations, but specific cases are not mentioned. The amendment’s removal of travel card references may reduce the scope for disputes over whether a particular meal or incidental expense was authorised under the card limit, but it may increase disputes over the calculation of pro‑rata weekly amounts and the CDF’s discretion to waive equipment repayment. The two‑thirds reduction for overseas meals in accommodation with cooking facilities is a bright‑line rule that could be challenged if a member argues that the facilities are not suitable. The CDF’s discretion in sections 9.5.29 and 13.3.19 is at risk of review under administrative law principles - members could seek merits review in the AAT or judicial review in the Federal Court on grounds of unreasonableness or failure to consider relevant matters. The savings provision itself could be litigated if a member whose travel period started before 10 October 2022 claims a right under the new rules, or vice versa. Because the determination is a legislative instrument, it may be challenged for exceeding the power in section 58B of the Defence Act, though the power is broad. The instrument does not contain any privative clause or limitation on review. Any litigation would likely be fact‑specific and not generate broad‑ranging precedents. For now, practitioners should assume the provisions are enforceable as written, with the usual avenues for review available. The absence of litigation history means there is no judicial gloss on ambiguous terms like “reasonable standard” or “unable to recover the cost”. Members and administrators should err on the side of caution and document all decisions with reasons.

Several features of this amendment may catch out members or administrators. First, the 21‑day cut‑off for domestic travel card use is absolute: sections 9.5.16 and 9.5.17 cease to apply “from midnight on the 21st day”. A travel period that lasts 22 days means that from day 22 onwards, the member cannot rely on the travel card for meals or incidentals, and instead must use the section 9.5.22 rates: accommodation at Annex 9.5.B rates, meals per meal period, and incidentals at $72.10 per week, pro rated for parts of a week. This creates a cliff effect - a member whose travel extends to 22 days due to mission requirements loses the ability to use the card, which may cause cash‑flow issues if the allowance is not paid promptly. Second, for members in living‑in accommodation, the incidental rate after 21 days drops to just $10.30 per day (section 9.5.20.2), even if actual incidental costs are higher. Third, the new section 9.5.30 states that a member ceases to be eligible for “any unused amount” of meal and incidental benefits at the end of the travel period. This means if a member did not spend the full daily rate on some days, the unspent portion is forfeited - it cannot be carried forward or claimed later. Fourth, the equipment benefit under section 13.3.18 comes with a mandatory repayment trap: if a member buys equipment with the benefit and then does not go overseas, they must repay the full amount. The only escape is if the CDF is satisfied that the member “is unable to recover the cost” from the seller. This is a high bar - a member who cancels travel voluntarily will likely have to repay, and even if travel is cancelled by Defence, the member may still be liable unless they can prove they cannot return the items or get a refund. Fifth, the overseas meal reduction at section 13.3.8(4) applies whenever a member lives out at a location for five days or longer and the accommodation has cooking facilities “of a standard that would allow them to prepare their own meals”. The test is objective, not whether the member actually cooks. A member in a hotel with a kitchenette will lose one‑third of the meal allowance, even if they eat out every meal. Sixth, the new section 9.5.33 for domestic allowances applies to a wide range of travellers beyond short‑term duty: posting travel, leave travel, and travel on ceasing continuous full‑time service. This expands the pool of members eligible for a cash allowance instead of travel card, but they may not realise they are no longer supposed to use the card for meals during these travels. Seventh, the savings provision applies only to travel periods that commenced before 10 October 2022. A member whose travel period starts on or after that date is fully subject to the new rules, even if the travel is part of a longer engagement that started earlier. For example, a member on a six‑week course that started 1 October 2022 will have the old rules for days 1‑9 (to 10 October) but the new rules from day 10 onwards? No - the savings provision says the old rules continue “until the end of the member’s travel period”. So the entire period is under old rules if it started before 10 October. But a new travel period (e.g., a separate posting) starting 12 October is governed by new rules. This creates two parallel regimes simultaneously in force for different members. Eighth, the pro‑rata incidental calculation for parts of a week under section 9.5.22 (note) means that a member whose travel ends on a Wednesday will receive only 3/7 of $72.10 for that final week, possibly less than the actual incidental costs incurred. Ninth, the repeal of section 9.5.31 (headed “Travel card use to pay for costs of a member on long‑term duty”) is not replaced - members on long‑term duty may now have no explicit travel card provision, potentially complicating payment for long‑term domestic deployments. Tenth, the definition of “travel period” for overseas is circular: “a period of overseas travel during which the member is eligible for a benefit under Chapter 13”. This means if the member becomes ineligible mid‑period, the definition may reset or end, causing confusion.

To comply with this amendment, ADF members and administrative staff must update their understanding of how travel costs are to be paid. The key compliance steps are as follows.

First, members undertaking domestic travel must note the 21‑day rule. For the first 21 days of a travel period, the travel card may still be used for meals and incidentals subject to the maximum amounts under the old provisions (unless further amended). However, the instrument repealed sections 9.5.6 and 9.5.7 (which previously authorised travel card use for reasonable costs and incidentals) - these were replaced or removed, so the actual authority to use the card for meals and incidentals now derives from sections 9.5.16 and 9.5.17, which are limited to “up to the maximum of their meal benefit” and “incidentals up to the maximum amount” respectively. Those sections are still in force for the first 21 days. After midnight on the 21st day, members must stop using the travel card for these daily costs and instead rely on the allowance scheme in section 9.5.22. Finance staff must ensure that members are informed of this cut‑off and that alternative payment methods (such as reimbursement claims or advance payments) are set up.

Second, members must secure approval for any additional meal and incidental costs under section 9.5.29, which requires the CDF to consider the reasonableness of costs based on travel locations and meal availability. Members should document why their actual costs exceed the standard rates and provide evidence (e.g., receipts, local price references). Compliance with this discretion requires timely submission of requests, not after the fact.

Third, for overseas short‑term duty, members must not use the travel card for meals, accommodation or incidentals unless specifically authorised. The new sections 13.3.6 and 13.3.7 provide allowances at rates by rank and location. Members should claim these allowances through the usual Defence travel claim system, submitting itineraries and proof of travel. The two‑thirds meal reduction rule under section 13.3.8(4) must be applied automatically by the system when a member is on a location for five days or longer with cooking facilities. Members should report whether their accommodation has such facilities - failure to do so could result in overpayment and potential recovery action.

Fourth, the equipment benefit under section 13.3.18 must be claimed as an allowance, not incurred via travel card. Members should purchase the equipment themselves and submit a claim up to $115 (New Zealand) or $225 (other). Crucially, if the overseas travel is cancelled for any reason, the member must repay the full amount unless they can prove they cannot recover the cost from the vendor. Members should retain receipts and cancellation documents, and seek a refund from the seller as a first step. If the seller refuses, the member should apply to the CDF for a waiver under subsection (5), providing evidence of refusal.

Fifth, administrative staff must update travel systems to calculate the new pro‑rata incidental amounts for parts of a week. Systems should flag any domestic travel beyond 21 days and switch the payment method from travel card to allowance. For living‑in accommodation, the $10.30 per day rate after 21 days must be applied automatically.

Sixth, the savings provision requires that records be kept of travel period start dates for any travel that straddled 10 October 2022. Members whose travel period started before that date should continue to receive entitlements under the pre‑amendment rules until the period ends. Departments must avoid mixing old and new rules within the same travel period.

Seventh, all relevant staff should review the repealed and substituted sections to ensure they no longer reference the travel card for now‑allowance payments. Any internal policies, online forms or guides that mention “use the travel card for meals” should be updated to reflect the new “eligible for an allowance” language.

Finally, because the CDF has discretion in multiple places (sections 9.5.29, 9.5.26.1, 13.3.19, 13.3.18(5)), decision‑makers must keep a written record of their considerations, particularly in relation to occupational health and safety, reasonableness of costs, and inability to recover equipment costs. This will support compliance with administrative law standards and reduce the risk of adverse review.