Defence Determination, Conditions of service Amendment Determination 2022 (No. 7)

The instrument operates within the framework of the Defence Determination 2016/19, a legislative instrument that sets out the monetary allowances and conditions of service for members of the Australian Defence Force. The key concept it introduces is a tightened, documentary‑based eligibility test for the Operation COVID-19 ASSIST allowance. Previously, the criteria in the repealed section 4.12.2 are unknown from the source, but the replacement now requires three objective records: the operational staffing document (which is the Defence roster of personnel allocated to the operation), a HQJOC deployment order (the formal directive ordering the member to deploy), and a PMKeyS operations log entry (the personnel database record). This triple requirement is designed to reduce ambiguity about who qualifies, but it also adds an administrative burden on members and units to ensure each record exists and is accurate. The term “member” is extended for this Part to include former members (for retrospective claims) and deceased members (with payments to estates), indicating the allowance may be claimed after separation or death, subject to the criteria being met at the time of service.

Another core concept is the “notifiable instrument” power. Under section 4.12.4, the Director Drafting and Engagement can set the day from which the allowance is payable, and may differentiate by class of member. This is a discretionary power that allows Defence to phase in the allowance or align it with budget cycles, but it also creates uncertainty: members do not know the effective date until the instrument is made. The note explicitly permits different days for different classes, which could lead to inequities if, for example, regular members are paid from an earlier date than reservists.

For Operation LILIA, the instrument adopts the standard deployment allowance framework. The “specified area” is defined as “the land, territorial waters and superjacent airspace of the Solomon Islands”. This is a standard geographical definition used in Defence allowances to cover all physical locations where duty may be performed - land, sea, and air - ensuring that personnel on naval vessels or aircraft operating near the Solomon Islands are included. The rate is AUD 93.69 per day, which appears consistent with other regional operations (the table item immediately before and after in the source are not visible, but the instrument only inserts one row).

The transitional provisions for LILIA create a retrospective entitlement for duty performed between 25 November 2021 and the eventual commencement of the instrument. This is a form of back‑pay, but it is conditional on the instrument actually commencing. The transitional provision does not create a stand‑alone statutory entitlement; it is a mechanism to apply the allowance rate to past service once the Determination is formally amended. Members who served during that window have a right to payment only if and when the Assistant Secretary activates Schedules 2 and 3.

The primary affected group is Australian Defence Force members deployed on Operations COVID-19 ASSIST or LILIA. For Operation COVID-19 ASSIST, the instrument covers all members (including Reservists) who were named on the operational staffing document, received a HQJOC deployment order, and have a PMKeyS log entry. This includes current members, former members who have since separated, and the estates of deceased members. The retrospective commencement of Schedule 1 to 14 April 2022 means that members who served on that operation from that date onward are subject to the amended eligibility test. If the previous criteria were broader, some members who would have qualified under the old rules might now be excluded if they lack one of the three records. The administrative burden falls on units and personnel records staff to ensure staffing documents and PMKeyS entries are accurate and up to date.

For Operation LILIA, the instrument affects all members who performed duty in the Solomon Islands from 25 November 2021. The transitional provisions apply to any such member, regardless of whether they are still serving or have separated, as long as they meet the duty requirement. The allowance is paid per day of duty, so members who served multiple tours or extended periods may be entitled to significant sums. The estate of a deceased member who served in that period could also claim.

Defence administrators are directly affected. The Director Drafting and Engagement must make a notifiable instrument under section 4.12.4 to set the payment date for the COVID-19 ASSIST allowance. The Assistant Secretary People Policy and Employment Conditions must decide whether and when to commence Schedules 2 and 3, and if not commenced within 12 months, those schedules are automatically repealed. This creates a timeline pressure: if the Assistant Secretary does nothing, the LILIA allowance and transitional provisions lapse, leaving members without a formal entitlement under the Determination. Members affected by that would have no recourse under this instrument; they would need to rely on other mechanisms (such as a later amendment or a special determination).

The instrument also affects other stakeholders indirectly. Defence legal and compliance staff must interpret the new criteria and ensure consistent application. The Department of Defence budget is impacted because the allowance payments represent additional expenditure - both ongoing for current deployments and retroactively for past LILIA service. Tax accountants and financial advisors for members may need to advise on the proper declaration of these allowances (though deployment allowances are often tax‑free under the Income Tax Assessment Act, the instrument does not address taxation). Finally, families of deceased members are affected because the instrument explicitly acknowledges that benefits may be paid to estates, which is a clarification that likely existed in the principal Determination but is now confirmed for this Part.

The instrument creates a right to receive the Operation COVID-19 ASSIST allowance for members who satisfy the three cumulative conditions: named on the operational staffing document, issued a HQJOC deployment order, and having a PMKeyS operations log entry. This right is conditional on meeting all three; failure on any one disqualifies the member from the allowance under this Part. The right exists only for the period the member meets those conditions, but the source does not specify a start date for the allowance - that is left to the Director Drafting and Engagement to set by notifiable instrument. Until that notifiable instrument is made, the allowance might not be payable even if eligibility is met, creating a timing risk. The Director has a duty to exercise that power, but no time limit is imposed; a delay could leave members without payment.

For Operation LILIA, a member who performed duty in the specified area between 25 November 2021 and the eventual commencement of the instrument has a right to payment at AUD 93.69 per day for each day of duty. This is a retrospective right, but it is contingent on the instrument being commenced. The transitional provision gives a clear entitlement once the instrument is in effect, but until commencement, it is only a future right. Members have no right to demand payment before commencement.

The instrument also imposes duties on Defence officials. The Director Drafting and Engagement must determine the payment date for the COVID-19 ASSIST allowance and may differentiate by class of member. That discretion must be exercised in accordance with administrative law principles (not stated in the source, but implied by the nature of statutory powers). The Assistant Secretary People Policy and Employment Conditions has a duty to decide on commencement of Schedules 2 and 3, but can also let them lapse after 12 months. Neither official has a duty to consult affected members or to provide reasons for their decisions.

Members have a duty to ensure their records are accurate. The criteria rely on Defence’s own records (staffing documents, deployment orders, PMKeyS entries), so a member cannot directly change those records. However, if a member believes they are eligible but their records are deficient, they may need to request corrections - a process not addressed in this instrument. There is no right to a review of a denial of the allowance if the records do not support it, although general Defence feedback and grievance mechanisms apply.

For deceased members, the estate has the right to receive the allowance, but the instrument does not detail how the estate proves entitlement. The note in section 4.12.2 simply states that a “benefit payable to a deceased member is paid to their estate.” This imposes a duty on Defence to pay the estate, but the estate may need to provide documentation of the member’s eligibility at the time of death.

The instrument does not itself create any penalties for non‑compliance, overpayment, or fraudulent claims. It is an entitlement‑setting instrument rather than a penal one. However, the broader legal framework governing Defence members and public service financial administration would apply. Making a false claim for the allowance could attract disciplinary action under the Defence Force Discipline Act 1982 (if the member is still serving), or criminal prosecution under the Criminal Code Act 1995 for obtaining a financial advantage by deception. The source does not mention these, but they are background laws.

Enforcement of the entitlement rests with the member’s ability to demonstrate meeting the criteria. If Defence refuses to pay, the member can use internal grievance processes (not specified in the instrument) or potentially seek review under the Administrative Decisions (Judicial Review) Act 1977 if the refusal involves a decision under an enactment. The discretion in section 4.12.4 (setting the payment date) could be challenged if exercised unreasonably, but that is a high threshold.

The instrument creates a risk of overpayment if records are inaccurate or if members are incorrectly named on staffing documents. The principal Defence Determination likely contains provisions for recovery of overpayments, but those are not in the source. Administrators have a duty to process payments correctly, but errors may lead to financial loss for the Commonwealth, and potentially for members if they are required to repay.

The transitional provision for LILIA does not specify a time limit for making claims. The instrument is silent on whether members must apply or whether payment is automatic based on Defence records. If automatic, then Defence must have accurate historical records for the period from 25 November 2021 to commencement. If not, members may need to submit claims, and the absence of a claims process could lead to disputes.

The instrument is one of many amendments to the Defence Determination 2016/19, which itself is a legislative instrument made under section 58B of the Defence Act 1903. The Determination sits within a hierarchy: the Defence Act provides the broad power; the Determination sets out specific conditions of service; and this amendment modifies those conditions for two operations. Any inconsistency with a higher‑order law (such as the Defence Act itself, or regulations made under it) would render the amendment invalid to the extent of the inconsistency. There is no suggestion of such inconsistency in the source.

The instrument interacts with the Legislation Act 2003 in several ways. Sections 4.12.4 and the commencement provisions for Schedules 2 and 3 rely on “notifiable instruments” - a category of legislative instrument that is registered but not tabled in Parliament. This means the Director Drafting and Engagement and the Assistant Secretary can vary key dates and payment details without parliamentary oversight, subject only to publication on the Federal Register of Legislation. This gives Defence significant flexibility but reduces transparency for members and the public.

The instrument may interact with the Military Rehabilitation and Compensation Act 2004 (MRCA) if a member is injured during deployment. The allowances paid under the Determination are separate from compensation for service‑related injury or death. However, receipt of deployment allowance should not affect eligibility for MRCA benefits. Similarly, the instrument does not affect superannuation entitlements under the Military Superannuation and Benefits Scheme or other schemes.

Tax law is relevant. Deployment allowances paid under the Defence Determination are generally exempt from income tax under subsection 51‑5 of the Income Tax Assessment Act 1997 (certain allowances for members of the Defence Force while on operational service). The instrument does not confirm this, but lawyers and accountants should be aware that the COVID-19 ASSIST and LILIA allowances are likely tax‑free, which affects net benefit calculations and reporting obligations.

The retrospective commencement of Schedule 1 (14 April 2022) interacts with the principle against retrospective legislation found in common law and the Acts Interpretation Act 1901. The source does not include a statement of compatibility or a human rights assessment. Retrospective changes to eligibility criteria could disadvantage members who relied on the earlier criteria. However, it is permissible under section 58B of the Defence Act if the instrument is expressed to take effect from a date before registration. Practitioners should check the principal Determination’s transitional provisions (if any) that may protect pre‑existing entitlements.

This instrument is a specific amendment: Determination No. 7 of 2022. The source does not provide a full history of amendments to the Defence Determination 2016/19, so it is impossible to place it in the context of all prior changes. However, from the instrument itself we can see that it amends Part 4.12 (Operation COVID-19 ASSIST allowance) and Part 17.7 (overseas operations allowance rates). The fact that there are at least seven amendments in 2022 alone suggests active adjustment of service conditions.

The key changes made by this instrument are: (a) replacing the eligibility test for COVID-19 ASSIST allowance with a record‑based test, and (b) adding Operation LILIA to the list of operations attracting a daily deployment allowance of $93.69, with retrospective transitional coverage back to 25 November 2021. The transitional provision is itself an amendment to the Determination, but it is housed in a separate Schedule rather than integrated into the main text. This may indicate that the transitional provision is temporary and will be repealed once all claims are processed, or it may be intended to remain as a permanent record of the historic eligibility period. The instrument does not say.

The staggered commencement dates are notable: Schedule 1 is already effective from 14 April 2022 (retrospective), while Schedules 2 and 3 may commence at a later date set by the Assistant Secretary, with a sunset of 12 months. This implies that the COVID-19 ASSIST changes were considered urgent or already implemented operationally, whereas the LILIA changes were still being finalised or needed further approval. The sunset clause prevents indefinite delay - if the Assistant Secretary deems the LILIA allowance unnecessary or decides to revisit the rate, the provisions simply lapse.

No other amendments are referenced in the source. The instrument does not mention any related instruments that were repealed or amended at the same time. It is a standalone piece within the broader Determination framework.

The source does not mention any litigation connected to this instrument. As a relatively recent and administrative amendment, it is unlikely to have been the subject of reported court decisions. However, several potential legal issues could arise, though none are documented in the text.

First, the retrospective operation of Schedule 1 could be challenged as an improper exercise of power if it adversely affects members’ accrued rights. The High Court has held that legislation can be retrospective if clearly expressed, but subordinate legislation made under section 58B must be consistent with the Defence Act. If the previous provision gave a broader entitlement, the retrospective narrowing might be void for exceeding the regulation‑making power. No cases are cited in the source.

Second, the discretionary power in section 4.12.4 to set different payment dates for different classes of members could be challenged for irrationality or discrimination if the differentiation has no reasonable basis. A member who is paid from a later date than another member in identical circumstances might argue an unauthorised distinction. This kind of challenge would likely be brought under administrative law rather than constitutional law, as it concerns a non‑statutory instrument.

Third, the transitional provisions for LILIA rely on a definition of “specified area” that includes “superjacent airspace”. This could give rise to disputes over whether a member on a flight over international waters but en route to the Solomon Islands qualifies. Similar definitional issues have been litigated in other contexts (e.g., workers’ compensation for offshore workers), but not under this Determination.

Fourth, the instrument’s validity could be questioned if the notifiable instrument under section 4.12.4 is not registered or if the Assistant Secretary fails to commence Schedules 2 and 3 within the 12‑month window. However, those are operational issues, not litigation‑friendly unless a member suffers demonstrable loss.

Without any recorded litigation, the instrument appears to have been implemented without immediate legal challenge. But the structural elements - retrospectivity, delegated discretion, and conditional commencement - are fertile ground for future disputes if applied unfairly.

There are several traps for members and practitioners. First, the triple eligibility test for COVID-19 ASSIST allowance seems straightforward but relies entirely on Defence administrative records. If a member was deployed but their name was omitted from the operational staffing document, or if the HQJOC deployment order was not issued (e.g., if they were seconded under a different command arrangement), they may be ineligible even though they performed equivalent duties. There is no fallback for “substantially equivalent” service. Members should check their PMKeyS log entries and deployment orders as early as possible.

Second, the payment date for the COVID-19 ASSIST allowance is not fixed by the instrument. The Director Drafting and Engagement may set a day that is after the period of service, meaning members could wait months or longer for payment. If the Director never makes a notifiable instrument, the allowance is effectively suspended. There is no default date. This gives Defence total discretion over when to pay, which is unusual for a service entitlement. Practitioners should monitor the Federal Register of Legislation for the notifiable instrument.

Third, the transitional LILIA provision applies only to duty between 25 November 2021 and the commencement of the Determination. If the Assistant Secretary takes more than 12 months to commence Schedules 2 and 3, the schedules are repealed, and members lose even the transitional entitlement. This creates a hard deadline for Defence to act, but members have no control over it. A member who served on LILIA in December 2021 might assume they have a right to back‑pay, but that right evaporates if the instrument never commences. There are no savings provisions.

Fourth, the instrument does not address compound or multiple operations. A member who served on both COVID-19 ASSIST and LILIA might be entitled to both allowances, but the criteria overlap? Possibly not, but the source does not clarify stacking. Presumably the member can claim whichever applies, but there is no prohibition on claiming both for different days of service.

Fifth, the term “member” is defined for Part 4.12 to include former and deceased members. For former members, they must still meet the three conditions at the time of service. If they have since separated, they may not have access to PMKeyS to verify their logs. They will need to request records through Defence, which could be a cumbersome process. The estate of a deceased member similarly may struggle to obtain documentation.

Sixth, the allowance rate for LILIA is $93.69 per day. This may seem generous, but the source does not state whether this is the same rate as for other operations. If it is lower than the rate for similar operations (e.g., Operation RESOLUTE in Australia’s north), there may be equity concerns, but the instrument does not address comparability.

Finally, the instrument is retrospective for COVID-19 ASSIST but not for LILIA. That means a member on COVID-19 ASSIST whose service was before 14 April 2022 may have their eligibility reassessed under the new criteria. If they were entitled under the old s 4.12.2 but not under the new one, they could lose their allowance. The source does not contain a saving provision for existing entitlements.

Compliance with this instrument is primarily an administrative and record‑keeping exercise. For members, the first step is to verify that you are named on the operational staffing document for Operation COVID-19 ASSIST. This is a document held by the deploying unit or by Joint Operations Command. If you are not listed but believe you should be, you must contact your unit’s posting cell or the operation’s headquarters to correct the record. Second, ensure that a HQJOC deployment order has been issued for you. If you deployed on verbal orders or under a different command arrangement, request a formal order. Third, confirm that your PMKeyS operations log contains an entry for Operation COVID-19 ASSIST. This log is typically updated by your unit’s personnel section; if missing, request an amendment. Keep copies of all these records. If you are a former member or the estate of a deceased member, you will need to obtain these records from Defence through the Defence Service Records team or the Pay and Conditions Branch.

For Operation LILIA, if you performed duty in the Solomon Islands between 25 November 2021 and the eventual commencement of Schedules 2 and 3, keep any evidence of that duty: movement orders, pay records reflecting deployment, travel claims, or diary notes. Even though the instrument does not require a formal application, the transitional provision says you “are eligible for payment”. You should check with your pay office whether the payment is automatic or needs a claim. If the latter, you may need to complete a deployment allowance claim form and attach evidence. Monitor for the notifiable instrument that commences Schedules 2 and 3, as that is the trigger for payment.

For Defence administrators and legal officers, immediate action is to review the current operational staffing documents for Operation COVID-19 ASSIST and reconcile them with PMKeyS logs. Identify members who are on one record but not another, and correct discrepancies. For LILIA, prepare to process claims for the period from 25 November 2021 onwards once the instrument commences. You should develop standard operating procedures for verifying the “specified area” - for example, determining whether a flight over territorial waters qualifies. Also prepare notifiable instruments: the Director Drafting and Engagement must make an instrument under section 4.12.4 setting the payment date for COVID-19 ASSIST allowance; the Assistant Secretary must make an instrument under section 2 commencing Schedules 2 and 3, or they will lapse. Ensure these are registered on the Federal Register of Legislation.

For compliance and audit, maintain a clear audit trail for all allowance payments. The eligibility criteria are objective, so audits can verify records against the three documents. For LILIA, ensure that duty dates fall within the defined period and are in the specified area. Watch for multiple allowances - a member on COVID-19 ASSIST who also served on LILIA should be paid separately. The instrument does not prevent stacking, but Defence policy may limit concurrent allowances. Check the principal Determination for any general rules on concurrent entitlements.

Finally, if you are advising a member whose claim is denied, check whether the denial is based on missing records rather than actual service. The instrument does not provide a statutory right of review, but the member may lodge a grievance under Defence policy or seek internal reconsideration. If all else fails, judicial review may be available if the decision was made under an enactment and was unreasonable or procedurally unfair.