Defence Determination, Conditions of service Amendment Determination 2023 (No. 14)

Several technical concepts from the Defence Determination 2016/19 are central to understanding the amendments. A Service residence is housing owned or leased by Defence provided to a member. The housing benefit location is the geographic area designated for the member’s primary service location where housing assistance (rent allowance, Service residence, living-in accommodation) applies. The family benefit location is a separate location used for home purchase assistance when the member’s family does not reside in the housing benefit location. The remote location allowance (section 4.4.12) is paid to members serving in designated remote areas; the amendments clarify that it continues during long service leave only if the member or at least one resident family member continues living at that remote location, and extends the leave types that qualify to include unpaid maternity and parental leave.

The special benefit payment (Chapter 2 Part 3) is a payment made to members transferring from the Permanent Forces to the Reserves, designed to ease transition. The amendments introduce a new threshold concept: a member is not eligible for the special benefit if they are under investigation for unacceptable behaviour, facing disciplinary action, have a notice to show cause for an administrative sanction, or have tested positive for drugs. Also, if before transfer the member is offered more than 120 Reserve days in the coming year and agrees to them, they are not eligible (the note suggests that failing to complete those days also disqualifies). The repayment obligation arises if the member re-enters continuous full-time service within one year or performs more than 120 days of Reserve service within one year of transfer. The continuous full-time service concept differentiates Permanent Forces from Reservists on part-time duty; it is used to trigger both eligibility and repayment.

The decision maker is defined differently in different contexts. For the new child dependant rule (item 5), decision maker means any of the following not below MAJ(E) in the member’s direct chain of command: a Commanding Officer, an Officer Commanding, or a Unit Executive (Air Force only). For the school tuition hardship payment (item 18), decision maker means Director General Defence Member and Family Support, Director Community Engagement, or Manager Education Support Programs. The concept of normally lives with replaces the older “is resident family of the member” test for overseas dependants, moving from a formal definition to a factual test of cohabitation. The three cumulative criteria for a child to be a dependant are: under 18, dependent on the member, and normally living with the member. This aligns with common-sense dependency but may exclude children in shared custody arrangements where they do not predominantly live with the member.

The transition location (medical) agreement appears in item 12 as a ground for early removal: a member on such an agreement for more than 12 months may request removal before ceasing continuous full-time service. This likely reflects medical accommodations where a member is posted to a location for treatment but not expected to serve there permanently. Other recognised persons (item 14) extends certain provisions to non-family members who are recognised by Defence policy as dependants or associates, possibly including de facto partners not formally married or children from previous relationships not legally dependent.

The term Reserve days is not defined in the amendment but is used in the principal Determination. For the special benefit, 120 days is the threshold: being offered more than that disqualifies the member from receiving the payment, and performing more than that after transfer triggers repayment. This creates a numeric bright line but may not account for circumstances where a member is offered irregular patterns of service (e.g., 140 days spread over 18 months). The unacceptable behaviour investigation and administrative sanction concepts are likely defined in Defence policy, not in this instrument, introducing incorporation by reference.

Understanding these concepts is essential because the amendments change the substantive conditions under which members receive financial support, often by narrowing eligibility or adding disqualifying events. The cumulative effect is a more contingent set of entitlements, where past or concurrent conduct (investigations, sanctions) can strip access to benefits even before final determination.

The primary cohort affected is members of the Australian Defence Force, both Permanent and Reserve. Within that, the amendments fall unevenly. Members in remote locations who take long service leave will see no disruption to their remote location allowance if they or a resident family member remains living at the remote location; but if the entire family moves away, the allowance ceases during that leave. Members on unpaid maternity or parental leave now also qualify for the allowance, which is an expansion that benefits a specific subgroup (mostly female members and those taking parental leave). Members considering transferring to the Reserves and receiving the special benefit are heavily affected: those under investigation, facing disciplinary action, or with a recent administrative sanction are excluded, as are those offered more than 120 Reserve days pre-transfer. Those who do receive the payment face a risk of repayment if they re-enter full-time service or perform more than 120 Reserve days within a year. This will influence career decisions, potentially discouraging high-performing reservists from taking extended service.

Members who have purchased a home in their housing benefit location now need to demonstrate an expected further 12 months of service at that location at the time of purchase to qualify for home purchase assistance. This creates uncertainty for those posted on shorter rotations or whose tenure is uncertain. Members seeking removal before ceasing continuous full-time service now have specific grounds that must be met; this reduces flexibility for voluntary moves. Members with children who are not biologically or legally theirs but who are in their care under permanent care orders are now recognised as dependants, which is a positive change for foster or kinship carers.

The families of members are also affected: children must now meet the “normally lives with” test to be considered dependants for overseas conditions. This may affect children in shared custody who split time between parents; if the child does not normally live with the member (even if dependent), they might not qualify for accompanied postings, education allowances, or travel. The transitional provision applies retroactively from 1 July 2023, protecting families who already had such arrangements during that window. The “other recognised persons” expansion may affect unmarried partners or elderly relatives who are not formal dependants but are recognised under Defence policy.

Decision makers within Defence are also affected. Commanding Officers, Officers Commanding, and Unit Executives (Air Force only) must now determine whether a child qualifies as a dependant under the new criteria. This adds an administrative step and potential for subjective judgement about “normally lives with”. The Director General Defence Member and Family Support and other officials must determine financial hardship for direct school payments, which requires assessing the member’s financial situation and may involve processing payments to third parties. Defence payroll and entitlements staff must update systems to reflect new eligibility rules, repayment triggers, and the removal of former provisions (e.g., repeal of section 17.2.2, deletion of table item 1A in section 6.5.46.4). Schools that provide tuition and accommodation may now receive direct payments from Defence in hardship cases, changing the payment flow from reimbursement to upfront funding.

Finally, the transitional provision has a narrow temporal effect: members whose dependant status was between 1 July and 7 December 2023 may have their overseas conditions validated if they would have met the new test. This avoids retrospective denial of benefits but requires retroactive application of the new rule, potentially raising rule-of-law concerns about changing conditions after the fact, albeit in favour of the member.

The instrument imposes duties on both members and the Commonwealth. The most significant new duty is the repayment obligation under new section 2.3.25. A member who receives the special benefit and then either resumes continuous full-time service (Permanent or Reserve) within one year, or performs more than 120 days of Reserve service within one year of transfer, must repay the amount. This duty is mandatory; the only exception is that the CDF may waive repayment under paragraph 2.3.25(2) for the Reserve days scenario if it is reasonable. There is no similar waiver for re-entering full-time service. This creates a strict liability repayment duty, which may catch members who change their mind about separation or who are recalled to service. Members should carefully consider whether they expect to serve more than 120 Reserve days in the year after transfer; if they do, they should not apply for the special benefit, or they risk repayment. Those already under investigation or with recent sanctions have no right to the benefit at all.

Members who receive remote location allowance and take long service leave have a right to continue receiving it only if they or at least one resident family member remains living at the remote location. This imposes a practical duty on members to either stay there themselves or ensure a family member stays; otherwise, the allowance stops for the leave period. The provision does not require the member to be physically present, only that they or a resident family continues to live at the location. A member who takes leave and moves the whole family away will lose the allowance.

Members seeking school tuition reimbursement now have a new right: the ability to have the school paid directly if the member is experiencing financial hardship. The decision maker must be satisfied of hardship. This right is not automatic and depends on the member providing evidence and the decision maker’s discretion. The member remains responsible for the member contribution (column C in the table), so that amount must still be paid from the member’s own pocket. Also, the reimbursement is reduced by other government assistance (full value) and by half of any textbook/equipment assistance. Members are required to disclose such assistance to avoid overpayment.

Members who purchased a home in the housing benefit location but now face a posting that ends before 12 months may lose entitlement to home purchase assistance if the expected continued service condition is not met. The duty here falls on the member to ensure the expectation of 12 months was reasonable at the time of purchase. There is no retroactive clawback, but the provision likely means that if a member purchases a home and then receives a posting order shortening their tenure, they may not be eligible for assistance unless the original expectation was reasonable.

Members who wish to request removal before ceasing continuous full-time service now have a list of five specific grounds. The removal is at the member’s request, not a duty, but the right to request is conditional on meeting one of the grounds. The grounds include medical illness of a family member, lack of suitable accommodation, lack of suitable secondary or higher education for a child, being on a transition location (medical) agreement for more than 12 months, or exceptional reasons. This limits the earlier broader right to request removal for any reason.

Decision makers have a duty to apply the new dependant test for overseas conditions: they must be satisfied that the child normally lives with the member, is under 18, and is dependent. The transitional provision also requires them to apply that test retrospectively for the period 1 July 2023 onwards. This creates potential administrative burden if records from that period are incomplete.

The Commonwealth has a duty to pay direct to the school where hardship is established, but also a duty to reduce the reimbursement by other assistance amounts. Failure to do so would result in overpayment, which would be recoverable as a debt.

The instrument does not create criminal offences or civil penalties. Enforcement flows through the mechanism of repayment of overpaid or disallowed benefits. Under new section 2.3.25, the member must repay the special benefit payment if any of the triggering events occur. This is a mandatory repayment obligation, not dependent on culpability. The only discretion is the CDF’s power to waive repayment under paragraph 2.3.25(2) for the Reserve days trigger; no similar waiver exists for re-entering continuous full-time service. The repayment is likely enforced as a debt due to the Commonwealth, potentially recoverable through salary deduction or civil proceedings.

For the special benefit, the new eligibility exclusions under section 2.3.22A act as a gatekeeper. If a member applies for the benefit while subject to an unacceptable behaviour investigation, disciplinary action, or a positive drug test, the application would be rejected. If the member fails to disclose that status and receives payment, the overpayment would be recoverable. The exclusion also applies if the member was imposed with an administrative sanction within the previous 12 months. This uses past sanctions as a bar, which may be controversial if the sanction was minor and not related to financial integrity.

The school tuition reimbursement changes include an offsetting rule: if the member receives other government assistance, the reimbursement must be reduced accordingly. If a member fails to declare that assistance, they could receive an inflated reimbursement, which would be an overpayment subject to recovery. The direct payment to the school in hardship cases involves no penalty for the member, but if the member’s financial hardship status was obtained by misrepresentation, the amount paid to the school could be recovered from the member as a debt.

The removal of “Afghanistan” from section 16.8.2 and the repeal of section 17.2.2 have no penalty implications; they simply remove outdated provisions.

Enforcement of the remote location allowance condition for long service leave relies on self-declaration or audit. The condition requires that the member or at least one resident family member continues to live at the remote location during the leave. If the member certifies that condition but moves the whole family away, they may have received allowance incorrectly and would need to repay it. The amendment adds unpaid maternity and parental leave to the table, so members taking those types of leave are now explicitly allowed to receive the allowance; previously there may have been ambiguity.

The transitional provision does not create penalties but ensures that overseas conditions granted between 1 July and 7 December 2023 are valid if the new test would have been satisfied. This avoids retrospective denial of benefits, but also means that members who would not have met the new test may see their previously granted benefits stand (since the provision only validates those who meet the new test; it does not invalidate those who met the old test). Enforcement of any overpayments in that period would require looking at the old rules.

Overall, the enforcement architecture relies on debt recovery rather than punitive sanctions. The repayment triggers for the special benefit are the most serious, as they can be large lump sums. Members should be aware that accepting the special benefit carries contingent future obligations, and that the CDF waiver is discretionary, not a right.

This instrument is made under section 58B of the Defence Act 1903, which confers power to make determinations about conditions of service. It amends the Defence Determination 2016/19, which exists as a legislative instrument under that Act. The principal Determination itself interacts with the Defence Act and other Commonwealth laws such as the Fair Work Act 2009 (for employment conditions, though ADF members are generally excluded), the Military Compensation Act, and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988. The amendments do not directly reference those Acts but operate within that framework.

The new section 2.3.22A specifically references “section 100 of the Act”. That is section 100 of the Defence Act 1903, which covers positive drug test results. This means a member who tests positive for a prohibited substance under the Defence Act’s drug testing regime is excluded from the special benefit. That creates a direct link between the drug testing provisions in the parent Act and this delegated instrument. Similarly, references to “unacceptable behaviour” investigations likely align with Defence policy issued under the Defence Act or the Defence Force Discipline Act 1982. The instrument does not create its own definition of those terms, so they are defined elsewhere.

The school tuition reimbursement amendment (items 16-18) requires that if the member receives “other government assistance” for school costs, the reimbursement must be reduced. This could involve other Commonwealth programs (e.g., the Assistance for Isolated Children scheme administered by the Department of Social Services) or state-based education allowances. The member has an obligation to declare such assistance, and Defence must calculate the reduction. The provision reduces reimbursement by the total value of other government assistance for attendance costs, and by half the value of textbook/equipment assistance. This prevents double-dipping but also imposes an administrative burden on Defence to verify and adjust payments.

The remote location allowance amendment (item 6) adds unpaid maternity leave and unpaid parental leave as categories, which may interact with the Paid Parental Leave Act 2010 and relevant Defence policy on parental leave. Members taking unpaid maternity leave under the Defence Determination may now continue to receive the remote location allowance, whereas previously they might have lost it. This harmonises the allowance with broader leave entitlements.

The transitional provision (Schedule 3) applies the new “normally lives with” test retrospectively for overseas conditions provided between 1 July and commencement. This interacts with the principal Determination’s overseas conditions provisions, which are likely linked to the Defence Act and possibly the Defence Regulation 2016. It is a limited retrospective application, arguably within the scope of delegated legislation.

There is no mention of interaction with taxation law, but monetary allowances and reimbursements may have tax implications under the Income Tax Assessment Act 1997. The instrument does not address fringe benefits tax or exempt allowances. Members should consult Defence pay policy for tax treatment.

The instrument does not reference state or territory laws directly. However, the new dependant test for a child under a permanent care order (item 4) implicitly relies on orders issued by state or territory courts or statutory authorities. The definition of “permanent care order” is not provided in the instrument, so it will be determined by the law of the relevant state or territory. Similarly, the ground for removal relating to “suitable accommodation not available” and “suitable secondary or higher education not available” will be assessed against local housing markets and education systems.

This instrument itself is an amending instrument. It amends Defence Determination 2016/19, which has been amended numerous times since its commencement. The user has not provided the full history of the principal Determination, so we can only note what this amendment changes. The instrument is numbered 2023 (No. 14), indicating it is the fourteenth amendment to the Defence Determination in 2023. It is made on 1 December 2023 and registered on an unspecified date.

The substantive history of the provisions amended: section 1.3.10 (definition of Service residence) is refined; section 1.3.35 (child dependant) is expanded; section 4.4.12 (remote location allowance during leave) has its leave categories updated; section 6.5.29 and 6.5.46 (removal allowances) are narrowed; section 7.3.2 (home purchase assistance) is tightened; section 7.6.64 (other recognised persons) is broadened; section 7.8.33 (removal eligibility) is simplified; section 8.4.21 (school tuition) is restructured; sections 12.3.5.1 (dependant definition) is replaced; sections 16.8.2 and 16.8.3 (posting allowances) are amended; and section 17.2.2 is repealed entirely. Section 17.2.2’s content is unknown but its removal suggests it was obsolete, possibly relating to a specific program or location no longer relevant.

Schedule 2 amends Chapter 2 Part 3 of the principal Determination, which deals with special benefit payments. It repeals old subsection 2.3.22.3 and inserts a new section 2.3.22A, and replaces section 2.3.25 entirely. This indicates a significant policy shift in how the special benefit is administered, moving from a more permissive eligibility to one that excludes members under investigation or with recent sanctions, and imposing stricter repayment claws.

Schedule 3 is a standalone transitional provision, not an amendment to the principal Determination’s ongoing text. It creates a temporary rule for a specific period (1 July to 7 December 2023). This type of provision is common when amending conditions that affect past periods, to avoid injustice or gaps.

The instrument itself will be superseded by later amendments (e.g., 2024 amendments). Users should check whether later instruments have further modified the provisions changed here. The Defence Determination is a living instrument, frequently updated to reflect operational needs and policy changes.

The source text contains no reference to any litigation, court cases, tribunal decisions, or administrative review proceedings. The instrument does not mention any past legal challenges to the provisions it amends. This is not surprising: most delegated legislation of this kind does not include litigation history. However, the amendments to the special benefit payment and the new disqualification grounds could become the subject of future legal challenge, particularly the exclusion based on being under investigation (which could be before any adverse finding) and the mandatory repayment without waiver for re-entering full-time service. Such challenges would likely be brought in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 or the Defence Act itself, arguing unreasonableness or jurisdictional error. The transitional provision might also be challenged if it retroactively alters eligibility in a way that prejudices members (though it appears only to validate, not invalidate, existing grants). Because no litigation is cited, a deep dive must simply note the absence of recorded cases. The instrument is very recent (late 2023), so it may not yet have been litigated. Practitioners should monitor decisions of the Defence Force Ombudsman or the ADF complaints system for interpretation disputes. The absence of litigation history does not mean the provisions are uncontroversial; it may simply reflect the time lag between enactment and disputes arising.

Several provisions contain traps for the unwary. The most significant is the special benefit repayment rule under new section 2.3.25. The trigger in paragraph 1.b is performing more than 120 days of Reserve service within one year of the transfer date. This is counterintuitive: one might expect that serving more Reserve days would be rewarded, but here it triggers a repayment. The member must repay the entire special benefit, not just a pro-rata amount. The exception is that the CDF may waive the repayment if satisfied it is reasonable. However, the waiver is discretionary, and there is no guidance on what constitutes “reasonable”. Members who anticipate serving, say, 200 Reserve days in the year after transfer should not accept the special benefit, or should negotiate a structure where they do not exceed 120 days. Those who are offered more than 120 pre-transfer and agree are disqualified from receiving the benefit at all (paragraph 2.3.22A(c)). So the scheme creates a perverse incentive: members should either serve fewer than 120 days or avoid the special benefit entirely.

Another trap is the disqualification for being under investigation for unacceptable behaviour. The phrase “under investigation for unacceptable behaviour” is not defined in the instrument. It may include investigations that have not yet resulted in any finding, or even investigations that are later dismissed. A member who is subject to a vexatious complaint could be denied the special benefit for months. The 12-month look-back for administrative sanctions is similarly harsh: a member who received a minor administrative sanction (e.g., a written warning) 11 months ago is disqualified, even if the issue was resolved. There is no de minimis exception.

The remote location allowance during long service leave requires that the member or at least one resident family member continues to live at the remote location. If the member takes leave and the family also moves away (e.g., for a holiday or to visit relatives), the allowance stops. The phrase “continues to live” suggests ongoing occupancy; a temporary absence might be problematic. Members should ensure someone remains at the remote address to maintain the allowance.

The home purchase assistance condition under new section 7.3.2 requires that at the time of purchase, the member is expected to continue to serve in their primary service location for another 12 months. This is a forward-looking expectation. If later the member’s posting changes (e.g., unplanned posting order), the expectation may have been reasonable but retrospective review could argue otherwise. The provision does not state that the expectation must be based on a specific document; it is subjective. This may lead to disputes if Defence later denies assistance based on alleged unreasonableness of the original expectation.

The school tuition direct payment (item 18) is available only if the decision maker is satisfied the member is experiencing financial hardship. The decision makers are specified (Director General, Director, Manager), not in the chain of command. Members should not assume their CO can approve this. Also, the reimbursement is reduced by other government assistance. Members who receive any other assistance (e.g., state education bursaries) must disclose it; failure could result in overpayment recovery.

The transitional provision applies only to overseas conditions provided between 1 July 2023 and commencement. It does not apply to later periods. Members who had dependants during that window should review whether the new test would have been met; if not, there could be an overpayment. The provision validates those who meet the new test, but does not invalidate those who met the old test only. So there is potential for inconsistent treatment.

The removal of section 17.2.2 means any entitlement or condition previously under that section is gone. Members who were relying on that provision for any benefit should check that the benefit is now provided elsewhere or lost. The instrument does not save pending applications.

Finally, the definition changes for dependants (items 19-20) replace the “is resident family of the member” test with the “normally lives with” test. This is a factual test that could be disputed if the child splits time between households. The decision maker is not specified for this test (unlike the child dependency test under section 1.3.35), so it may default to standard administrative decision makers. Members should ensure they have evidence of where the child normally lives (e.g., attendance at a local school, medical records).

Members and Defence administrators should take several steps to comply with the new Determination.

First, any member considering applying for the special benefit on transfer to the Reserves must review their current status. Are they subject to any investigation for unacceptable behaviour? Have they received a notice to show cause for an administrative sanction? Have they had an administrative sanction imposed in the past 12 months? If yes, they are ineligible. They should also consider whether before their transfer date they will be offered an opportunity to serve more than 120 Reserve days in the following year and whether they would agree to that. If they agree, they are ineligible. Members should request clarification from their chain of command about likely Reserve service commitments before applying. If they receive the benefit and later are offered extra Reserve days, they should either decline to serve more than 120 days cumulatively in the year following transfer, or be prepared to repay the benefit. The CDF waiver is not guaranteed.

Second, for remote location allowance, members taking long service leave should ensure that either they or at least one resident family member continues to physically live at the remote location during the leave. If the entire family is leaving the location for the duration, the allowance should be ceased and not claimed. Members on unpaid maternity or unpaid parental leave can now claim the allowance during that leave, which previously was uncertain; they should apply and ensure the location remains occupied.

Third, members purchasing a home in the housing benefit location should document the basis for expecting to serve another 12 months in that location. This may include a written posting order, advice from Career Management, or a performance agreement. The expectation must be reasonable at the time. If later the posting changes, the member should retain the original documentation to defend any challenge.

Fourth, members seeking reimbursement for school tuition and accommodation should review whether they receive any other government assistance for those costs. They must declare it on their claim. If they are experiencing financial hardship, they may request direct payment to the school, but they will still need to pay the member contribution. The decision maker is not in the chain of command; the member should contact Defence Member and Family Support directly.

Fifth, for dependant status for overseas conditions, members should ensure they can provide evidence that a child normally lives with them if they wish the child to be considered a dependant. This may include school records, tax returns, or statutory declarations. The transitional provision allows retroactive application from 1 July 2023, so members who had dependant children during that period should check whether they meet the new test and, if not, contact Defence to avoid overpayment of allowances.

Sixth, administrators in Defence payroll and personnel must update systems to reflect the new eligibility rules. The removal of table item 1A in section 6.5.46.4 and the repeal of section 17.2.2 require deletion of references in processing manuals. The new decision makers for child dependancy (CO, OC, Unit Executive) must be briefed on how to determine “normally lives with” and the three criteria (under 18, dependent, normally lives with). The financial hardship decision makers must develop guidelines for assessing hardship.

Seventh, members who were granted special benefit before this amendment and who have outstanding investigations or sanctions should consider whether they are now subject to repayment. The disqualification provisions in section 2.3.22A apply only to members seeking the benefit after commencement; existing recipients are not caught by the new eligibility, but the repayment rules in section 2.3.25 apply to everyone. If a member who received the special benefit before 4 January 2024 later begins continuous full-time service or exceeds 120 Reserve days, the repayment obligation applies regardless of when the benefit was paid.

Finally, all affected personnel should read the principal Determination together with this amendment. The instrument is only a set of changes, not a consolidated text. Defence should issue a consolidated version or a clear guidance note. Practitioners advising members should obtain the current version of the Defence Determination 2016/19 as updated by this and other amendments. The transitional provision is time-limited and does not affect ongoing entitlements after commencement.