Defence Determination, Conditions of service Amendment Determination 2023 (No. 13)

This instrument, titled Defence Determination, Conditions of service Amendment Determination 2023 (No. 13), amends the Defence Determination 2016/19, Conditions of service. It is made by an authorised officer under section 58B of the Defence Act 1903 (see "3 Authority") and commenced on 9 November 2023 (see "2 Commencement"). The instrument is organised into five Schedules that change definitional material, operational categories, allowances and rates, and a variety of miscellaneous entitlement rules; it also contains transitional provisions for specified past claims (Schedule 5).

Mechanically, the instrument does the following (source paragraphs cited below):

• Schedule 1 modifies executive vehicle and related allowance provisions. It removes section 4.6.6, edits cross‑references in subsection 4.6.2.2, narrows the definition of what annual allowances are payable during long service leave (section 5.4.42 and paragraph 5.5.26.4.b), and substitutes a revised exclusion rule in section 9.6.6 that exempts members of this Part where they are eligible for travel when ceasing continuous full‑time service or where they hold rank Brigadier or higher unless CDF approves private vehicle as most economical (Schedule 1 items 1-5, particularly replacement 9.6.6).

• Schedule 2 introduces and operationalises "peacetime deployment" in the primary definitions and restructures the treatment of deployments across many chapters and divisions. It replaces the definition of "Deployment" in section 1.3.1 to expressly include three sub‑types: warlike, non‑warlike and peacetime deployment (Schedule 2 item 1), creates a new definition of peacetime deployment that requires CDF approval (item 4), and adjusts how "operational area" is defined when the service is on peacetime deployment (item 3). The Schedule then amends multiple chapters (notably Chapters 13 and 17) and many clauses to exclude peacetime deployment from entitlements and chapters that will continue to apply only to warlike or non‑warlike deployments (see items 12-24 and numerous insertions stating "This Division/Chapter does not apply to a member on peacetime deployment").

• Schedule 3 adjusts routine daily allowance rates and other figures. It raises one threshold in subsection 4.10.4.1A from $2,758 to $2,868, changes a figure in subsection 16.8.3.2 from AUD 238.49 to AUD 282.73, and replaces the table in subsection 17.7.6.1 with updated operation names, specified areas and daily rate figures (Schedule 3 items 1-3).

• Schedule 4 is extensive and miscellaneous. It changes the treatment of posted positions for reserve members (paragraph 1.3.9.c), replaces the definition of "Meaningful Engagement" (section 2.2.2), introduces the concept of "recognised other persons" into family/benefit rules across many provisions, replaces or inserts multiple procedural and eligibility rules (for example Division 3: Removal to or from a family benefit location, and a new recreation leave travel benefit at section 9.4.7), updates lists of approved summer schools and locations in Annex 15.6.B, and makes specific changes to allowances for the Defence Attaché Baghdad (Schedule 4 items 1-47). Several clauses replace textual references to "resident family" with broader or alternative phrasing such as "recognised other persons" or "person" (many items).

• Schedule 5 contains transitional provisions that permit some members posted to Canada, Madrid (Spain) or Japan in specified past dates to be reimbursed for particular approved summer school costs as though the updated Annex lists had been in effect at the time (Schedule 5 clauses 2 and 3).

Across the instrument the CDF (Chief of the Defence Force) is given or noted as the approving authority in multiple places (for example peacetime deployment approval and some private vehicle approvals, see Schedule 2 item 4 and Schedule 1 item 5). The instrument does not create new criminal penalties; it amends an administrative Determination under Defence Act 1903 s58B (see "3 Authority").

Several definitional and structural concepts are central to the changes made by this Determination. The text itself places emphasis on classification of deployments, the scope of various chapters and divisions of the Conditions of service Determination, the allocation of allowances and daily rates, and the identity of persons who may qualify as family or other eligible persons.

Key definitional changes

• Deployment. The instrument replaces the existing definition in section 1.3.1 so "Deployment" explicitly means overseas service by a member who is force assigned with an ADF deployment, a United Nations mission or a similar force on any of the following sub‑types: warlike deployment, non‑warlike deployment or peacetime deployment (Schedule 2 item 1). This brings peacetime deployment into the umbrella concept of deployment.

• Peacetime deployment. A new definition is inserted: "Peacetime deployment means a deployment overseas that meets all of the following. a. It is not a warlike or non‑warlike deployment. b. It has been approved by the CDF as a peacetime deployment" (Schedule 2 item 4). Two features are important: exclusion by category (it must not be warlike or non‑warlike) and the positive approval gate operated by the CDF.

• Operational area. For peacetime deployments the "operational area" becomes a "specified area that has been approved by the CDF" (Schedule 2 item 3). For overseas service other than a deployment, the Determination points to the Veterans’ Entitlements Act 1986, section 6 (Schedule 2 item 3c), making the Determination deliberately interlinked with statutory definitions elsewhere.

Scope and exclusions

• Many Chapters and Divisions that previously used "deployment" or "duty" have been rewritten to exclude peacetime deployments expressly. For example, Chapter 17 (now retitled to "Warlike and non‑warlike deployments") and section 17.1.1 are recast to apply only to warlike or non‑warlike deployments and Chapter 17.1.4 expressly lists members on peacetime deployment among those to whom the Chapter does not apply (Schedule 2 items 22-24). Multiple inserted clauses repeat the formula "This Division/Chapter does not apply to a member on peacetime deployment" (items 16-21).

Allowance architecture

• Schedule 3 updates several routine rate amounts and entirely replaces the daily rate table in subsection 17.7.6.1 (Schedule 3 item 3). The table lists operation names (for example ACCORDION, ASLAN, AUGURY) with specified areas and a daily allowance rate in AUD. The amended numerical figures should be used by payroll and entitlement calculators from the commencement date.

The instrument affects an overlapping set of stakeholders within the Australian Defence Force and adjacent groups. The primary persons affected are ADF members, with secondary effects on resident family members, "recognised other persons", Defence payroll and human resources administrators, and ministerial/CDF decision‑makers.

Directly affected individuals

• ADF members on overseas service. By changing the definition of "Deployment" to include "peacetime deployment" (Schedule 2 item 1) but then frequently excluding peacetime deployment from Chapters and Divisions written for warlike/non‑warlike deployments, the Determination alters which members receive particular deployment‑related entitlements. Members who are force assigned to a deployment that the CDF has approved as a peacetime deployment will be classed as deployed under the new definition, but many of the entitlements specifically designed for warlike or non‑warlike deployments will not apply to them (see Schedule 2 items 12-24).

• Members on long‑term posting, short‑term duty, and reserve service. Schedule 2 amends Chapter 13 and associated parts to explain which members the Chapter applies to; it explicitly adds peacetime deployment to the list of circumstances in which Chapter 13 applies (Schedule 2 item 13). Reserve members are affected by the posting location rule change in Schedule 4 item 1 (paragraph 1.3.9.c), which sets the posted location for certain reserve members as either where they provide the majority of capability or the position location.

• Senior officers. Schedule 1 (item 5) substitutes a new section 9.6.6 which excludes members holding the rank of Brigadier or higher from the Part, unless the CDF approves private vehicle travel as the most economical means under section 9.1.3. This change specifically alters the executive vehicle allowance/entitlement coverage for senior ranks.

Secondary individuals and groups

• Resident family and "recognised other persons". Schedule 4 injects "recognised other persons" into numerous family benefit rules (for example Division 3 removal benefits, items 5-11). The text also clarifies the category of recognised other persons in places, listing adult child and a person recognised under paragraph 1.3.37.d as examples (Schedule 4 item 7). Those persons may gain rights to relocation and travel benefits previously limited to resident family.

• Partners who are also members. Schedule 4 adds a limiting rule: if a member’s partner is also a member, only one member is eligible for reunion travel credits with respect to a non‑resident family person (Schedule 4 item 38 at end of section 9.3.33J). That adjustment allocates the entitlement across two‑member households.

The instrument amends a range of entitlement provisions and decision points that create rights for members (and some others) and obligations for Defence to assess, approve and pay benefits. The Determination does not create criminal liabilities; it prescribes conditions of service, allowances, and administrative processes. Below are the principal duties and rights that emerge from the amended text.

Rights created or clarified

• Right to be treated as on "deployment". The replacement definition of "Deployment" in section 1.3.1 includes peacetime deployment as a form of deployment (Schedule 2 item 1). Members force assigned to an ADF deployment, United Nations mission or similar who meet the peacetime deployment definition thus have the right to be classified as deployed, subject to the CDF’s approval of peacetime deployment status (item 4).

• Right to travel within Australia after return from deployment. Section 9.4.20 is repealed and substituted to provide travel within Australia when leave has been granted on return from a deployment (Schedule 2 item 10). The amendments elsewhere (e.g., revised table entries in 7.4.33, 7.6.42 and 7.8.18) make explicit when contributions recommence in relation to warlike and non‑warlike deployments (Schedule 2 items 6-9).

• Right to recreation leave travel under specified limits. The new section 9.4.7 establishes a recreation leave travel benefit (Schedule 4 item 39). Subsection 1 defines the return travel entitlement and subsections 2 and 3 limit recreations leave travel to the most economical means and to door‑to‑door travel costs. Subsection 2 also permits members to use leave travel when linked to an approved removal under Division 4 of Part 5 to Chapter 6.

• Right to certain relocation and special needs travel benefits for "recognised other persons". Schedule 4 amends the family benefit location and special needs rules so that, in many places, "recognised other persons" qualify for benefits previously reserved for resident family (see items 5-11; item 22 and beyond make parallel changes in the special needs travel rules).

• Right to updated daily rates for specified operations. Schedule 3 updates daily allowance figures and thresholds (items 1-3). Members serving in listed operations will receive the revised daily rates from commencement.

Duties imposed on Defence and decision makers

• Duty to classify and approve peacetime deployments and specified areas. The new peacetime deployment regime (Schedule 2 items 1-4) places a factual and administrative duty on the CDF to approve deployments and specified areas. Where an entitlement or exclusion hinges on whether the deployment is peacetime, a formal CDF decision is required.

The Determination is an administrative instrument amending the Conditions of service under the Defence Act 1903 and does not itself create new criminal offences or specify monetary penalties for non‑compliance in the way a statute or penal code might. The regime operates through entitlement rules, administrative approvals and payroll processes. Below are the enforcement and accountability mechanisms that can be inferred from the instrument itself, grounded in the text.

Administrative enforcement and compliance

• Internal Defence administration. The primary mechanism to give effect to the Determination is internal Defence administration. Sections and replacements across the Schedules impose eligibility rules and ceilings (for example the recreation leave travel limits at new section 9.4.7(3)), and Defence payroll and HR must apply those rules. Non‑compliance in practical terms would lead to correction through payroll adjustments, recovery actions (where the internal rules permit), or denial of benefits. The instrument places duties on decision makers (CDF and delegated officers) to approve or refuse classifications (e.g., peacetime deployment approval), and decisions will be implemented administratively.

• Decision makers with delegated power. The Determination identifies the CDF as the approving authority for key classifications (Schedule 2 items 3-4) and the Minister for Defence retains a role for approving exceptional rates (Schedule 3 last row). Enforcement therefore includes an administrative check where approvals (or refusals) trigger or deny entitlement payments. The Determination does not set out an appeal mechanism within its text; appeals or challenges would typically be routed through Defence grievance procedures, administrative law remedies or statutory review mechanisms available generally to public servants and Defence members (though those remedies are external to the text provided).

Recovery and correction

• No explicit recovery provisions are inserted by this instrument. The Determination as amended may contain elsewhere (in the parent instrument as in force) provisions regarding recovery of overpayments or erroneous payments. The current text of this instrument does not repeat or alter specific recovery processes. Where payments are made incorrectly, administrative recovery actions would be the likely enforcement step, exercised under pre‑existing Defence Determination powers or financial management rules.

Discretion and potential for inconsistent application

The instrument situates itself within a network that includes the Defence Act 1903 (the head power for making the Determination), other Defence determinations and specified statutes. The text contains explicit cross‑references and implied interactions that matter for legal interpretation and operational implementation.

Primary statutory authority

• Defence Act 1903. The instrument is made under section 58B of the Defence Act 1903 (see "3 Authority"). Section 58B authorises determinations of conditions of service; the instrument does not purport to amend the Defence Act itself but exercises subordinate legislative power under the Act.

Explicit external statutory reference

• Veterans’ Entitlements Act 1986. Schedule 2 item 3c notes that for "overseas service other than a deployment" the operational area has the meaning given in section 6 of the Veterans’ Entitlements Act 1986. That ties the Determination’s operational experience conceptually and practically into the statutory compensation and entitlements regime in the Veterans’ Entitlements Act.

Interaction with other executive instruments

• Defence Determination 2016/19. This instrument amends Defence Determination 2016/19, Conditions of service, in many places. The effect is to modify the existing Determination rather than create a standalone new set of conditions.

• Military Rehabilitation and Compensation (Pay‑related Allowances) Determination 2017. Schedule 4 item 47 directly references that Determination, specifying that "for the purpose of the Military Rehabilitation and Compensation (Pay‑related Allowances) Determination 2017, special location allowance means Defence attaché Baghdad allowance." This is an explicit cross‑instrument definition, and it aligns the allowance naming across instruments.

Ministerial powers and administrative law

• Minister for Defence. In Schedule 3 the table includes a catch‑all row allowing a Minister for Defence approved rate for "Any other operation", between AUD 59.35 and AUD 282.72. That preserves Ministerial discretion over exceptional rates and therefore interacts with broader executive functions.

• Administrative law principles. Although not expressly stated in the instrument, the exercise of the CDF’s and Minister’s discretion will be subject to administrative law constraints (reasonableness, procedural fairness, and legality) as those doctrines apply to executive action. The instrument’s references to CDF approvals and recognition of persons necessarily operate within that broader legal context. The instrument itself does not specify procedural protections or review mechanisms; those will be supplied by general administrative law or Defence internal review policies.

This Determination is itself an amending instrument to Defence Determination 2016/19, Conditions of service. Its amendment history within the document is conveyed by the Schedules and the commencement provision. The instrument's own metadata states its name and makes clear it amends the specified earlier Determination. Below is a structured account of the changes effected in this instrument (all items are from the instrument text).

Commencement and authority

• The instrument is named Defence Determination, Conditions of service Amendment Determination 2023 (No. 13) (see "1 Name").

• It commenced on 9 November 2023, with the table in section 2 stating "The whole of this Instrument" commences on that date. The instrument was made under section 58B of the Defence Act 1903 (see "3 Authority"). It is dated 31 October 2023 and signed by COL Kirk Lloyd, Acting Assistant Secretary, People Policy and Employment Conditions, Defence People Group.

Schedule‑by‑Schedule summary of amendments

• Schedule 1: Executive vehicle allowance amendments. Makes targeted textual changes to the parent Determination: omits a cross‑reference, repeals s4.6.6, repeals a paragraph in the annual allowance definition, replaces paragraph 5.5.26.4.b with a list of allowances that may be paid during long service leave (itemising exceptions such as Antarctic allowance, Port Wakefield allowance, ADF district allowance, Hardship allowance, Rent allowance), and substitutes section 9.6.6 to exclude from the Part a member who meets certain conditions, including rank Brigadier or higher unless CDF approval is given for private vehicle (Schedule 1 items 1-5).

• Schedule 2: Peacetime deployments amendments. Extensive redefinition of Deployment and Operational area in section 1.3.1 (items 1-4). Broad amendments across Chapters 7, 12, 13 and 17 to handle peacetime deployments, including many insertions stating that specific Divisions or Chapters do not apply to members on peacetime deployment (items 5-28). Chapter 17 is retitled to "Warlike and non‑warlike deployments" and its purpose modified to specify those deployment classes (items 22-24). Multiple obsolete references to "deployment" where peacetime deployments should be excluded are corrected.

• Schedule 3: Routine rate amendments. Minor numerical changes and a wholesale replacement of the table in subsection 17.7.6.1 listing operations and daily rates (items 1-3). The routine rate figure in subsection 4.10.4.1A is adjusted up from $2,758 to $2,868; subsection 16.8.3.2 from AUD 238.49 to AUD 282.73; and the operation‑rate table in 17.7.6.1 is replaced.

The text of this Determination, as provided, contains no references to case law, judicial decisions, or prior litigation concerning either the parent Determination (Defence Determination 2016/19) or the amendments introduced here. The instrument does not cite any legal proceedings, and there are no statutory references to judicial determinations within the amendment text itself beyond cross‑references to other Acts or Determinations (for example the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation (Pay‑related Allowances) Determination 2017).

What the instrument tells the reader about litigation risk

• Absence of cases in the instrument. Because the instrument is an administrative amendment, it does not and need not record litigation history. The absence of litigation references therefore does not indicate that the amendments will be uncontroversial in practice. The amended text creates decision points (CDF approvals, recognition of persons, exclusions for peacetime deployments) that could be the subject of administrative complaints, internal review, or judicial review if members or others contest administrative decisions.

• Likely judicial questions. The amendments introduce substantial discretion to the CDF (e.g., approval of peacetime deployments and specified areas). If a member is denied an entitlement on the ground that their overseas service was a peacetime deployment not attracting a specific Chapter’s benefits, remedies under administrative law (procedural fairness, substantive review for reasonableness/legality) could be invoked. Similarly, disputes about the status of "recognised other persons" may raise questions as to whether Defence applied its own criteria, as previously set out in paragraph 1.3.37.d (referenced in Schedule 4 item 7). Those are the sorts of factual and legal questions that typically give rise to litigation, though none is cited here.

• Interaction with veterans’ entitlements. The instrument deliberately cross‑references statutory definitions in the Veterans’ Entitlements Act 1986 for "overseas service other than a deployment" (Schedule 2 item 3c). Where entitlement to statutory veterans’ benefits hinges on such definitions, classification disputes could migrate to statutory forums. The instrument itself does not state any precedent or past litigation history on those matters.

Practical note for practitioners and administrators

• Track administrative decisions that may be appealed. Because this instrument concentrates authority with the CDF and makes wide‑ranging eligibility changes, practitioners advising members should record CDF approvals and rationales carefully to preserve administrative review or judicial review options. The instrument itself does not provide internal appeals language; practitioners should locate and rely on Defence internal review processes or general administrative law remedies if a dispute arises.

Implementers and practitioners should note multiple drafting and operational traps in the amended Determination. These are not evaluative judgements but concrete points where the text creates potential ambiguity, unexpected outcomes, or administrative complexity.

1. "Deployment" versus peacetime deployment

• The instrument expands "Deployment" to include "peacetime deployment" (Schedule 2 item 1) but then systematically excludes peacetime deployments from Chapters and Divisions that deal with warlike or non‑warlike deployments (Schedule 2 items 12-24 and many insertions such as 13.2.10, 13.2.12A, 13.3.17A, and 13.4.7A). The gotcha: parts of the Determination that use the term "deployment" without qualification may unintentionally capture peacetime deployments (now within the definition) unless they are explicitly excluded. Practitioners must read each clause carefully to see whether the new "does not apply to a member on peacetime deployment" language has been inserted.

2. CDF approval is a gating decision

• Peacetime deployment requires CDF approval (Schedule 2 item 4) and operational area for peacetime deployments must be approved by CDF (item 3). The practical risk: an individual's entitlement may depend entirely on whether an administrative approval document exists. HR and legal staff must ensure there is a clear, recorded CDF decision; absent that, members might be incorrectly classified.

3. Exclusion for senior ranks on travel entitlements

• New section 9.6.6 excludes members who hold rank Brigadier or higher from this Part unless the CDF has approved private vehicle as the most economical means of travel under section 9.1.3 (Schedule 1 item 5). The gotcha: senior officers may lose certain vehicle/transport entitlements by operation of rank unless the CDF makes an explicit approval. Administrators will need to check ranks and approvals before processing claims.

4. "Recognised other persons" referenced but definition not inserted here

• Schedule 4 refers to persons recognised under paragraph 1.3.37.d (Schedule 4 item 7) and inserts "recognised other persons" widely. The instrument does not reproduce paragraph 1.3.37.d in the provided text. Practitioners must locate paragraph 1.3.37.d in the parent Determination to understand the scope. The gotcha is that implementation depends on a separate definitional provision that must be interpreted consistently.

For Defence administrators, HR teams, payroll officers, legal advisers and members seeking to apply the amended Determination, the following concrete compliance steps flow directly from the text. The list is operational and grounded in the instrument’s provisions.

1. Update policy and payroll systems

• Incorporate the amended text into the working version of Defence Determination 2016/19, ensuring every Schedule change is applied line by line. Pay particular attention to:
  • New deployment definitions (Schedule 2 items 1-4).
  • Substituted and replaced sections in Chapter 13 and Chapter 17 excluding peacetime deployments (Schedule 2 items 12-24).
  • Revised allowance rates and tables in Schedule 3 (items 1-3).
  • Annex 15.6.B summer school lists as amended (Schedule 4 items 42-45).
• Ensure payroll rates where numbers were changed (e.g., subsection 4.10.4.1A increased to $2,868; subsection 16.8.3.2 increased to AUD 282.73; operation daily rates in 17.7.6.1) are updated at the commencement date (9 November 2023).

2. Record and publish CDF approvals

• Because peacetime deployment and specified areas require CDF approval (Schedule 2 items 3-4), implement a standard process to:
  • Obtain a written, dated CDF approval for any deployment classified as peacetime deployment.
  • Archive approvals in a central register and link approvals to individual member records and payroll triggers.
• For senior officers (Brigadier+), ensure CDF approvals for private vehicle as most economical (section 9.1.3 reference in Schedule 1 item 5) are recorded; without written CDF approval, these officers will be excluded from the relevant Part.

3. Revise forms, checklists and decision templates

• Modify deployment classification checklists so assessors confirm whether an overseas assignment is a warlike, non‑warlike or peacetime deployment and whether CDF approval is recorded.
• Update family/recognised other person recognition forms to capture the evidence used to determine whether a person is a "recognised other person" under paragraph 1.3.37.d (Schedule 4 item 7). Store decisions with supporting documentation on family benefit location moves and special needs travel approvals.

4. Implement recreation leave travel rules