Defence Determination, Conditions of service Amendment Determination 2023 (No. 12)

The instrument introduces or refines several key concepts within the Defence Determination’s conditions of service framework.

Payment instead of long service leave is overhauled. Previously, eligibility was likely more broadly defined. Now it is tied to specific termination events: medical unfitness or redundancy after at least one year of effective service; reaching retirement age (or ceasing continuous full-time service if permitted to serve beyond that age); and receipt of a special benefit under Chapter 2 Part 3 Division 3. Members diagnosed with a terminal illness receive a separate discretionary pathway requiring the CDF’s satisfaction that payment is reasonable. The concept of “effective service” is imported from other sections (such as section 5.5.8) but is not defined in this instrument; it continues to be drawn from the broader Determination.

Dual-member removal eligibility introduces the concept that when two members of a couple are each entitled to a removal to the same location, only one government-funded removal is provided. This changes the previous assumption that each member’s entitlements could be stacked. The removal is defined to cover the member, their resident family, and recognised other persons, so the second member’s removal entitlement does not result in additional taxpayer cost for duplicate relocation.

Location for rent allowance purposes is redefined across sections 7.8.9 and 7.8.10. The new concept splits members into four categories: flexible housing trial members (location where they live); members with unaccompanied resident family (location where that family lives); members with an extended housing benefit location (the location with the lowest rent ceiling between where they live and where they would have lived without the extension); and all other members (the location of their primary service location). This formula is designed to minimise rent ceiling amounts by forcing a choice between two possible locations, likely reducing government subsidy costs.

Rent paid before moving in becomes a cost-saving mechanism. Reimbursement is only available if Defence will save on removal and temporary accommodation costs by the member pre-paying rent. The maximum reimbursement period is six weeks if furniture is in transit (and delay is not the member’s fault) and three weeks otherwise. This shifts the timing and risk of rental deposits onto the member, subject to later reimbursement.

Living-in accommodation is amended to make the CDF’s power to require a member to live in that accommodation conditional on suitable accommodation being available. The removal of the three listed exceptions (subsection 7.4.8.2, section 7.4.33, subsection 7.4.44.4) means that members who previously could avoid compulsory living-in must now accept it if accommodation is available. That gives the Defence organisation more control over where members live, reducing rental subsidies and increasing command flexibility.

Boarding cost reimbursement is restricted by excluding school holidays and situations where the member or an adult family member lives in the child’s location, unless the CDF makes a special circumstances determination. This changes the concept of a need-based entitlement to one that is presumptively excluded outside term time.

Tuition fees replaces “school fees” in section 15.6.26, likely aligning the Determination’s language with broader education policy or to cover non-school educational costs that are still “tuition” in nature.

Annex headings for accommodation charges are redesigned to group by bedroom count (2 bedrooms; 3 or more) and by sharing arrangements (living alone; sharing with 1 other; sharing with 2 or 3 others). These new column headings reflect a more granular approach to calculating charges based on occupancy rather than simply rank.

The amendments directly affect current and former members of the Australian Defence Force, their families, and the administrative machinery within Defence.

Members approaching separation or retirement will face changed eligibility for a payment instead of long service leave. A member who resigns voluntarily before meeting the one-year effective service threshold for medical or redundancy grounds will not qualify for that payment. Those who are medically boarded out or made redundant after at least one year are eligible. Members who are permitted to serve beyond retirement age and then cease full-time service also qualify. Terminal illness cases require the CDF’s discretion. Former members who have already ceased service may still be eligible if they meet the criteria in subsection 5.5.25(1)(a) (existing LSL credits) or (1)(d) (special benefit). The restriction to specific termination categories means that members who are discharged for disciplinary reasons or who voluntarily separate without reaching one year of service will not get the payment.

Dual-member couples are directly affected by the removal of duplicate removal entitlements. Only one removal is provided when both members are posted to the same location. This reduces the couple’s collective entitlement and may cause additional out of pocket costs if they need to move possessions belonging to the second member that are not covered by the single removal. The amendment applies to both current and future postings, though transitional provisions do not address this item.

Members with family in different locations face new restrictions. Families living in a family benefit location while the member is elsewhere affect rent allowance definitions. For boarding cost reimbursement, children cannot be reimbursed during school holidays or when the member or an adult family member lives in the child’s location - a significant change for members whose children board at remote schools. The special circumstances exception provides some relief but adds uncertainty and administrative burden.

Members in housing benefit locations face a complex new “location” definition for rent ceilings. Those whose housing benefit location has been extended will be benchmarked against the lower of two rent ceilings. This may reduce the allowance they receive and increase their housing costs. The transitional provision for the period 1 July 2023 to 12 October 2023 applies retrospectively, so some members may have inadvertently received incorrect amounts and now face reconciliation.

Members required to live in accommodation now have less ability to avoid it. The removal of the three exceptions means that even if a member previously could claim exemption, they must now live in if suitable accommodation is available. This primarily affects members in training establishments, on base, or in barracks who may have preferred to live off base at their own cost. The condition “subject to suitable living-in accommodation being available” gives the CDF discretion to decide what is suitable.

Members paying rent before moving into a home now must satisfy that Defence will save money on removal and temporary accommodation before reimbursement is approved. This places a burden on the member to demonstrate cost savings, likely requiring advance approval from Defence.

The Chief of the Defence Force gains or retains significant discretions: satisfaction for terminal illness payments; special circumstances decisions on boarding costs; suitability assessments for living-in accommodation; and authority to extend housing benefit locations. The amendment adds “Chief of the Defence Force/” before various references in Annex 3.6.A, confirming the CDF’s role in forms and approvals.

Defence administrative staff must update forms, guidance material, and IT systems to reflect the new cross references, the revised annex headings, and the changed eligibility rules. The repeal of the three living-in exceptions removes some bureaucratic exemption processes but also removes flexibility.

Members’ rights to payment instead of long service leave are both expanded and narrowed. Expanded: terminal illness cases now have a clear discretionary pathway. Narrowed: only five categories qualify, and the one-year effective service condition for subparagraphs (b) and (c) is a new threshold. Members who leave before one year for non-medical or non-redundancy reasons lose the payment. The section is now more prescriptive, reducing ambiguity but also reducing the CDF’s discretion to make payments in borderline cases.

Dual-member couples’ rights to removal are limited. Where both members are eligible for a removal to the same location, only one member receives a removal (covering the member, their resident family, and other recognised persons). The second member effectively waives their removal entitlement. Since the note clarifies that the removal is for “the member and their resident family and other recognised persons”, the second member is not separately covered. The couple must coordinate to ensure all household goods are moved under the single removal.

Rent allowance rights are reformulated through the new “location” definitions. Members with extended housing benefit locations have their rent ceiling capped at the lower of two possible locations. This changes their right to the higher ceiling they might have hoped for. The location definition also affects which rent allowance rate applies, which is significant for members living in high-cost areas but whose primary service location is elsewhere.

Rent reimbursement for pre-moving payments becomes a duty to show cost savings to Defence. The member must demonstrate that pre-paying rent will save Defence money on removal and temporary accommodation. This reverses the previous arrangement where the member simply incurred the expense and was reimbursed. Now eligibility depends on Defence’s financial benefit, not the member’s need.

Living-in accommodation becomes more of a duty. Previously, members might have had the right to avoid compulsory living-in under the three repealed exceptions. Now the duty is clear: subject to availability, members may be required by the CDF to live in provided accommodation. The member’s right to choose off-base living is diminished.

Board reimbursement rights for children are curtailed. The default rule now is that boarding costs during school holidays and when the member or adult family member lives in the child’s location are not reimbursable unless the CDF finds special circumstances. This shifts the financial burden to the member for those periods.

Tuition fees replaces the term “school fees” - a subtle change but possibly broadening the scope to include vocational or tertiary tuition costs if permitted by the broader Part.

Transitional rights are created for members affected by the rent ceiling changes between 1 July 2023 and commencement. Those members have a right to the rent ceiling that would have applied under the new rules, which is likely to be lower. The transitional provision ensures that no overpayment is clawed back; rather, it gives the member the benefit of the lower ceiling as if it had always applied. This protects the member from retrospective disadvantage.

Administrative duties arise for Defence: to update the approved form definition, to reflect “Chief of the Defence Force/” in Annex 3.6.A, and to update accommodation charge tables in Annex 7.D. These are housekeeping duties but failure to update forms could cause confusion.

The instrument itself does not create new penalties. It amends an existing determination, which is made under the Defence Act 1903, and contraventions of conditions of service are typically enforced through administrative action rather than criminal penalties. However, several amendments affect eligibility and reimbursement, which in turn affect the financial position of members. There are implications for potential overpayments and recovery actions.

Overpayments on rent allowance could arise from the retroactive application of the transitional provision. Between 1 July 2023 and 12 October 2023, some members may have received rent allowances calculated under the old location definitions. The transitional provision says they are entitled to the rent ceiling that would have applied under the new rules, which is the lower of two ceilings. If a member was overpaid, Defence could theoretically seek recovery. The instrument does not explicitly deal with recovery; it only establishes the entitlement as if the new rules had always applied. This creates a right to a higher allowance if the new rules would have given a higher amount (which is unlikely given the design) but does not address a lower allowance. The practical enforcement will depend on how Defence administers the provision: possibly by recalculating amounts and either issuing a credit or demanding repayment.

Loss of boarding reimbursement is not a penalty but a withdrawal of an entitlement. Members who claim reimbursement for school holidays without special circumstances approval may face rejection of their claim and potential repayment if already paid.

Accommodation charges are set by the amended annex tables. If a member is required to live in accommodation (under the new compulsory regime) and refuses, that refusal could be treated as a breach of lawful orders under the Defence Force Discipline Act 1982, attracting disciplinary penalties. The removal of the three exceptions removes previous lawful excuses, making non-compliance more likely to be a disciplinary infraction.

Payment instead of long service leave is an entitlement, not a penalty. However, making a false claim (e.g., misrepresenting service details) could result in recovery of payments and potential disciplinary action.

Enforcement mechanisms are not specified in this instrument. The Defence Determination is a legislative instrument that establishes conditions of service; enforcement flows from the command structure. The CDF’s discretion is central. Where the CDF is required to be satisfied (e.g., terminal illness payment, special circumstances for boarding), a decision not to be satisfied can be challenged under merits review provisions in the Defence Determination (not part of this instrument) or the Administrative Review Council. The instrument does not create a private right of action.

Compliance burden falls on Defence administrators to correctly apply the new formulas. The retrospective transitional provision is particularly prone to error because it requires reconstructing rent ceilings for a period already passed. Any mistakes could give rise to administrative law challenges or complaints.

Interaction with service tribunals is possible if a member disputes a decision regarding eligibility or reimbursement. The Defence Force Ombudsman or the Commonwealth Ombudsman may investigate complaints about maladministration.

The instrument is made under section 58B of the Defence Act 1903, which grants the power to make determinations about conditions of service for the Defence Force. It operates within a hierarchy of service law. The Defence Determination 2016/19 itself is a legislative instrument that sits below the Defence Act and Defence Regulation 2016. The amendments interact with several other laws.

Defence Regulation 2016: Section 24 of that regulation deals with termination of service. The amendment to section 5.5.25(1)(b) directly incorporates termination under section 24 for medical unfitness or redundancy as a qualifying event for long service leave payment. This means that eligibility is tied to the specific termination provisions in the regulation, not to any other reason.

Defence Force Discipline Act 1982: The changes to compulsory living-in accommodation (item 9 and the repeal of three exceptions) may interact with disciplinary obligations. If a member refuses to comply with a lawful order to live in accommodation, they may face charges under the DFDA. Previously, the exceptions in subsection 7.4.8.2, section 7.4.33, and subsection 7.4.44.4 provided a defence or lawful excuse. With those exceptions removed, the order becomes more clearly lawful.

Fair Work Act 2009: Members of the Defence Force are generally excluded from the Fair Work Act. However, the long service leave payment provisions in the Defence Determination are the only source of such entitlements for defence members. The instrument does not create any interaction with the National Employment Standards.

Military Compensation and Rehabilitation Act 2004: Subsection 5.5.25(1)(d) references receipt of a special benefit under Chapter 2 Part 3 Division 3 of that Act as a qualifying event for long service leave payment. This links the Determination to military compensation law.

Administrative Appeals Tribunal Act 1975: Decisions made under the Defence Determination, including the CDF’s discretions (terminal illness, special circumstances for boarding, suitability of living-in accommodation), may be reviewable by the AAT or the Commonwealth Ombudsman. The instrument does not expand or restrict review rights.

Tax law: Payments instead of long service leave are likely taxable under the Income Tax Assessment Act 1997. The instrument does not address tax treatment, but the changes to eligibility may affect the timing and quantum of taxable payments.

State and territory tenancy laws: The provision on rent paid before moving in (section 7.8.47) involves a member entering a residential tenancy agreement. The reimbursement is a benefit under the Determination, but the underlying lease is governed by state tenancy law. The instrument does not alter those laws.

Child care and education laws: The boarding cost reimbursement changes interact with the broader duty of Defence to support members’ children’s education, but do not impose obligations on schools or state education departments.

This is the Defence Determination, Conditions of service Amendment Determination 2023 (No. 12). It is part of a series of amendment determinations made throughout 2023. The instrument itself does not list the history of previous amendments to the Defence Determination 2016/19, but the numbering indicates that at least eleven other amendment determinations preceded it in 2023. This suggests that the conditions of service are subject to frequent, incremental change, possibly due to evolving policy or budget adjustments.

The instrument makes 24 miscellaneous amendments and one transitional provision. The amendments are not a single thematic package; they touch on long service leave, removals, rent allowance, accommodation charges, living-in accommodation, boarding costs, travel provisions, and tuition fees. This indicates that the determination is being updated in response to multiple administrative and policy needs.

The amendments to Annex 3.6.A (items 1-3) are purely cross-referential and reflect internal reorganisation of the Determination’s structure (moving from Chapter 1 Part 2 to Chapter 1 Part 3, and from Chapter 3 Part 5 Division 2 to Chapter 3 Part 3). This suggests that earlier amendment determinations may have restructured the Determination, and this instrument catches up the out-of-date references.

The amendment to the heading of subsection 7.4.8.1 (item 9) changed from “The CDF may require a member” to “Subject to suitable living-in accommodation being available, a member may be required by the CDF”. This appears to be a change from empowering the CDF to imposing a condition on that power. The repeal of the three exceptions (item 24) then removes the exceptions to that power, making it more absolute once suitability is satisfied.

The transitional provision (Schedule 2) retroactively adjusts rent ceilings from 1 July 2023, which is before the instrument’s commencement. This suggests that the policy intent to apply the new location definitions was formulated earlier but the legal instrument was not made until October. The transitional provision effectively backdates the benefit to avoid disadvantaging members who acted in reliance on earlier rules.

No amendment history beyond this instrument is provided in the source, so it is impossible to detail the full genealogy of changes to the Defence Determination. The source does not reference any previous amendment determinations or explain why these specific changes were made at this time.

The source instrument does not reference any litigation. There are no cases cited, no court decisions mentioned, and no indication that any of these amendments respond to judicial rulings. This is typical for a ministerial or administrative determination; litigation rarely drives such granular changes to service conditions unless there is a specific ruling on an interpretation.

However, the retrospective transitional provision (Schedule 2) creates a potential area of dispute. If Defence administratively applies the transitional provision and a member’s rent ceiling is reduced, but the member had already spent money in reliance on the old ceiling, the member might challenge the action. The provision states the member “is entitled to the rent ceiling that would have applied had the changes … applied at the time.” This is a pro-member provision (it gives the lower ceiling if that is beneficial, but does not explicitly say it is beneficial - it could also be detrimental if the new rules produce a higher ceiling, but given the design of using the lowest rent ceiling, it is likely to be lower). If it is lower, no one will complain. If it is higher, the provision would entitle the member to a top-up, which Defence would need to pay. The provision appears designed to avoid litigation by making the change retrospectively benign.

The amendments to long service leave are clear and prescriptive, reducing the scope for interpretative disputes. However, the term “effective service” used in subsection 5.5.25(1)(b) is not defined in the instrument; it is drawn from section 5.5.8 of the Defence Determination. Any dispute about what constitutes effective service could become litigated.

The removal of the three exceptions for compulsory living-in accommodation may provoke legal challenges if a member argues that the exceptions were substantive rights that were removed without adequate process. The rule-making power under section 58B of the Defence Act likely allows the determination to be amended without consultation, but a member could seek review on the basis that the amendment is ultra vires or procedurally unfair if it impacts accrued rights. However, the exceptions were themselves created by the Determination, not by primary legislation, so the power to amend them is likely valid.

The “location” definitions in the new subsections 7.8.9.6 and 7.8.10.3 are complex and may give rise to disputes over which category a member falls into, especially for flexible housing trial members or those with unaccompanied resident family.

Overall, the instrument is not likely to generate major litigation. It is an administrative routine tightening of entitlements and updating references. The risk of litigation is low but not zero, particularly around the retroactive rent ceiling provision and the removal of living-in exceptions.

Retrospectivity without notice: The transitional provision applies from 1 July 2023, but the instrument was not made until 6 October and commenced on 12 October. Members who rented accommodation between July and October based on the old rent ceiling rules may find their actual entitlement was different. The provision protects them by deeming the new rules to have always applied. But if the new rules give a lower rent ceiling, the member loses the difference. If the new rules give a higher ceiling, they gain. The lack of notice means members could not have known to adjust their rental choices. Defence should issue a communiqué clarifying that no overpayments will be recovered, but the instrument does not explicitly say that.

Living-in accommodation trap: The removal of the three exceptions (subsection 7.4.8.2, section 7.4.33, subsection 7.4.44.4) means members who previously had a lawful excuse to avoid compulsory living-in now have no such excuse. Members in training establishments or on base may be directed to live in accommodation even if they have family elsewhere or have been paying for off-base housing. The condition “subject to suitable living-in accommodation being available” leaves it to the CDF to decide suitability. A member who refuses could face discipline for failing to obey a lawful order.

Dual-member removal duplication no more: Members who are both in a couple and posted together lose one removal entitlement. If both receive a removal separately, the old rule may have allowed two removals. Now only one removal is provided. Couples who have already arranged separate moves may face uncovered costs. There is no transitional provision for existing posting cycles; the amendment applies on and from commencement.

Boarding cost exclusions: The default rule that boarding costs are not reimbursed during school holidays and when the member or adult family member lives in the child’s location is a significant change. Many Defence families rely on boarding schools to give children stability during postings. The new rule presumes these periods are not eligible, shifting the cost to the member. The special circumstances exception requires the CDF to be satisfied, adding uncertainty.

Rent reimbursement now requires cost saving: To be reimbursed for rent paid before moving in, the member must show that Defence will save money on removal and temporary accommodation. This creates a chicken-and-egg problem: the member might not know Defence’s internal costings and cannot easily prove a saving. The approval likely must be obtained before the rent is paid, adding a pre-approval step that slows things down.

Accommodation charge tables reorganised: The new annex headings break charges down by bedroom count (2 bedrooms; 3 or more) for accompanied living, and by number of sharers for single living. Members assigned to accommodation with different bedroom counts may see their charge change without warning. The exact dollar amounts are not in this instrument but are set by reference to the annex tables in the Defence Determination, which are not provided. Members should check the current annex to see the actual rates.

Cross-reference errors possible: Items 1-3 update Annex 3.6.A to point to new references for “approved form” and “Bonuses”. If other parts of the Determination still use the old references, there could be confusion until a further amendment cleans them up. The instrument only amends those specific references.

Tuition fees vs school fees: The change from “school fees” to “tuition fees” in section 15.6.26 could broaden the scope to include higher education or vocational tuition, but it could also narrow it if “tuition fees” is interpreted more restrictively. Members claiming education allowances should check how Defence defines “tuition fees” in its guidance.

No transitional for LSL: The new section 5.5.25 applies to members who cease continuous full-time service on or after commencement. But the one-year effective service condition for medical/unfitness and redundancy is new. Members who have already accrued significant service but leave soon after commencement may be caught by the new section, not the old one. There is no transitional provision preserving the old eligibility for existing members.

Members: Review your personal circumstances against each changed provision. If you are planning to separate from full-time service, confirm which long service leave payment pathway you meet. If you have less than one year of effective service and are not being discharged for medical unfitness or redundancy, you will not receive a payment. If you are diagnosed with a terminal illness, seek the CDF’s satisfaction early and document your request.

If you are in a dual-member couple and both are likely to be posted together, plan for only one government-funded removal. Coordinate with your partner so that the single removal covers all household goods. Engage with Defence’s relocation office to understand the application of the new rule.

For housing allowance, ensure you know your location classification under the new definitions in sections 7.8.9 and 7.8.10. If your housing benefit location has been extended, check what the rent ceiling would be for both possible locations; seek a determination from Defence if ambiguous. Use the transitional provision to verify your entitlement between 1 July and 12 October 2023; if you believe you were underpaid, apply for a correction.

If you are required to live in accommodation, check whether suitable accommodation is available. If you believe the accommodation is not suitable, raise the matter formally with the chain of command before refusing. Losing the three exceptions means you cannot rely on previously valid grounds.

Before paying rent to secure a home before moving in, obtain advance approval from Defence that pre-paying will result in cost savings on removal and temporary accommodation. Do not rely on reimbursement without that approval.

If you have a child boarding at school, budget for costs during school holidays and for periods when you or an adult family member live in the child’s location. Only claim reimbursement for those periods if you can demonstrate special circumstances to the CDF.

Update any standing requests for education allowance to use the term “tuition fees” rather than “school fees” to align with the new language.

Defence administrators: Update the approved form register to reflect the new reference in Chapter 1 Part 3 section 1.3.1. Ensure all forms reference “Chief of the Defence Force” where required. Recalculate rent ceilings for affected members in the transitional period and issue corrected entitlement letters. Update accommodation charge tables in Annex 7.D Parts 1 and 2, and ensure the amounts are published accurately.

Train housing staff on the new location definitions for rent allowance. Ensure they apply the formula for members with extended housing benefit locations: compare the rent ceiling for where the member lives and where they would have lived without the extension, and apply the lower one.

Update the living-in accommodation policy to reflect the removal of the three exceptions. Issue clear direction to commanders that they may require members to live in only when suitable accommodation is available. Define “suitable” in local instructions to reduce ambiguity.

Update the long service leave payment guidance to reflect the new five pathways. Ensure separation counselling includes the new eligibility rules.

Monitor claims for rent paid before moving in to ensure the cost-savings test is applied. Develop a pro forma for members to use to demonstrate savings.

For boarding costs, create a clear process for members to apply for special circumstances. Ensure the CDF or delegate makes decisions consistently.

Legal advisors: Review these amendments for any unintended consequences, particularly the retrospective effect of the transitional provision. Consider whether any accrued rights are affected. Draft clear internal guidance notes to defend any potential challenges.