Defence Determination, Conditions of service Amendment Determination 2023 (No. 5)

The instrument revolves around several key concepts inherited from the principal determination and modified here. Remote location leave travel benefits are recurring entitlements allowing members and their dependants to travel away from remote postings. Schedule 1 ties the scope of benefits (Scheme A alone or both A and B) to the ADF District allowance grade of the posting location. This grading system assigns A, B, C, D, or E levels based on geographic hardship, with Grade A being the most remote or costly. Members in Grade A locations get a narrower set of benefits (Scheme A only) than those in lower grades. The eligibility condition also requires the CDF to assess the member’s likely tenure at 12 months, indicating a gate-keeping control to prevent short-term postings from triggering these potentially expensive benefits.

Christmas stand-down is a period during which ADF operations are reduced, and members typically are not required to work normal duties. The instrument fixes the period for 2023-2024 as 23 December to 2 January inclusive. This is a mechanical update but also an important scheduling tool for members and commanders. The public holidays direction power allows the decision maker to designate up to 10 days per calendar year as observed public holidays in any posting location. This is a significant administrative discretion: it permits tailoring of public holiday observance to local conditions and operational needs, rather than imposing a one-size-fits-all calendar. The criteria for exercising this discretion require the decision maker to weigh the public holidays generally observed, operational efficiency, and whether the days already fall within Christmas stand-down.

Overseas hardship location grades are alphanumeric designations (B through E in these amendments) that determine the level of location allowance and additional recreation leave payable to members posted to those locations. The changes in Annex 16.B reclassify several locations: for item 18, hardship grade B moves to C (a lower allowance and leave entitlement); for items 31 and 32, grade E moves to D (an increase); for item 54, grade D moves to E (a decrease). These reclassifications have direct financial and leave consequences for members already serving there, which is why transitional provisions backdate the changes to 5 January 2023 and adjust benefits accordingly.

Disturbance allowance compensates members for the costs and inconvenience of moving. The new table in section 6.1.6.2 differentiates by family status (accompanied, unaccompanied, living in/out) and removal count. The substantial rate jumps (e.g., $1,398 for 1st/2nd removal to new location with family up to $2,796 for 7th or subsequent) create a clear incentive structure: more frequent moves attract higher allowance, which may offset the diminishing marginal utility of moving repeatedly. The child changing school payment of $266 is a flat amount per child, only for primary/secondary students, and is payable only when the change actually occurs (not on postponement). The restriction that where both parents are members only one can claim prevents double-dipping.

Vehicle allowance reimburses members for using privately owned vehicles for official purposes. The new rates are purely mechanical: cents per kilometre based on engine type and capacity. The inclusion of a specific rate for electric vehicles (78 cents per km) reflects fleet modernisation. The formula uses whole kilometres only, and the CDF can authorise a longer route if the shortest is unreasonable. The additional 1.06 cents per km for carrying eligible passengers, heavy equipment (100kg+), or towing Commonwealth-owned items provides a modest extra reimbursement for those scenarios.

Transitional benefit concepts involve retrospective application of changes, with a clawback mechanism to avoid overpayment. Benefits are calculated as if the amendment had been in force from an earlier date, then reduced by any amount already received and not repaid. This retrospective effect is legally possible because the instrument is made under delegated legislation, but it imposes administrative burdens on payroll systems and may surprise members who have already spent the original payments. The instrument handles this by stating the reduction applies only to amounts "which has not been repaid," meaning the member could choose to repay the earlier sum and still receive the new benefit, or keep it and forgo the higher amount. It is effectively a conditional top-up.

The primary group affected by this instrument is current members of the Australian Defence Force in a wide variety of posting and personal circumstances. Members serving in remote locations that attract ADF District allowance are directly affected by Schedule 1: those in Grade A locations lose eligibility for Scheme B remote location leave travel benefits compared to what might have been the previous rule, while those in Grades B through E gain the certainty of two-tier benefits. Members posted to Israel, particularly between 31 January 2023 and commencement, are affected by the change in club membership designation; they may now be eligible for reimbursement of membership costs at the Arab-Jewish Community Centre, but may have to adjust earlier claims. Members serving on Operation FORTITUDE in Egypt, Israel, Jordan, Lebanon, or Syria are affected by the new deployment allowance rates, which are backdated to 10 November 2022. Those at hardship locations corresponding to Annex 16.B items 18, 31, 32, and 54 will see changes in their location allowance and additional recreation leave entitlements, with retrospective effect to 5 January 2023.

Members undergoing removal (relocation) on posting are affected by the comprehensive revision of disturbance allowance rates and the new child-changing-school payment. The rates vary by number of removals and family status, so members with many previous moves (especially 7th or subsequent) receive significantly higher allowances. Members who use private vehicles for official travel are affected by the new kilometre rates and the formula, as well as the additional 1.06 cents per km when carrying passengers or heavy equipment. Those who own electric vehicles now have a specific rate of 78 cents per km, which is lower than most internal combustion rates, potentially affecting their reimbursement.

Dependants of members are indirectly affected because remote location leave travel benefits, disturbance allowance (via family status categories), and the child-changing-school payment are designed for them. The instrument does not confer independent rights on dependants but conditions the member’s entitlements on their presence.

Decision makers within the ADF and Department of Defence are affected through new duties. The CDF must be satisfied about 12-month service likelihood for remote location leave travel. The decision maker (likely a commanding officer or delegate) must now consider three criteria before directing up to 10 public holidays per year: local public holidays, operational efficiency, and whether days fall within Christmas stand-down. The CDF also can set a longer route for vehicle allowance if the shortest route is unreasonable. These discretions require documented decision-making and potentially increase administrative workload.

Pay and conditions administrators face the direct task of implementing these changes across the ADF’s payroll and HR systems. The retrospective transitional provisions (back to 10 November 2022 for deployment allowance, 5 January 2023 for hardship grade changes, 31 January 2023 for Israel club membership) require retroactive calculations, adjustments, and communications. The sequencing dependency for Schedules 4 and 5 (must commence after another amendment) adds implementation complexity.

Members whose partners are also members are specifically affected by the provision that only one member may claim the child-changing-school payment per child. This prevents duplicate claims but requires coordination between the two members and their respective units, which could be administratively awkward if they serve in different chains of command.

Rights created or modified by this instrument are all conditional entitlements to payments or leave. Members have a right to remote location leave travel benefits (Scheme A for Grade A locations, Schemes A and B for Grades B through E) if the CDF is satisfied they are likely to serve 12 months in the location. Members have a right to Christmas stand-down for the fixed period 23 December 2023 to 2 January 2024. Members have a right to have up to 10 days directed as public holidays in their posting location, though this is a direction by the decision maker rather than an absolute individual right - the member’s entitlement is to be told which days are observed, not to demand a particular calendar. Members posted to Israel have a right to claim the cost of club membership at the Arab-Jewish Community Centre (retrospectively from 31 January 2023). Members at certain hardship locations have a right to increased location allowance and additional recreation leave backdated to 5 January 2023. Members deployed on Operation FORTITUDE have a right to specified daily deployment allowance rates backdated to 10 November 2022. Members have a right to disturbance allowance at the new rates for qualifying removals, and to the $266 child-changing-school payment if they meet the criteria. Members using private vehicles have a right to allowance calculated under the new formula and rates, plus 1.06 cents per km extra in specified circumstances.

Duties primarily fall on decision makers. The decision maker must consider three mandatory criteria before directing public holidays (local observances, operational efficiency, and overlap with Christmas stand-down). The CDF must be satisfied of the 12-month likelihood before granting remote location leave travel benefits. The CDF must be satisfied that a longer route for vehicle allowance is reasonable because the shortest route was not. For the transitional provisions, the instrument imposes a duty on administrators to calculate and pay the correct amounts, and to reduce benefits by amounts already received and not repaid. Members have no explicit new duties, but implied duties include not making duplicate claims (such as both members claiming for the same child) and repaying earlier amounts if they wish to receive the higher transitional benefits (since the reduction applies to amounts not yet repaid).

Gaps in clarity. The instrument does not specify the process for a member to claim the child-changing-school payment, nor what evidence is required (e.g., school enrolment confirmation). It does not prescribe how the decision maker documents the consideration of public holidays criteria. The transitional provisions are conditional on the member having “not repaid” earlier amounts, but there is no guidance on whether the member can choose to repay and receive the higher amount, or whether the system automatically nets it. The notes in the transitional clauses indicate that the benefit is reduced by amounts received which have not been repaid, implying the member could repay to receive the higher sum, but the instrument does not explicitly state a process. This lack of procedural detail likely means the principal determination or administrative instructions cover it, but the instrument itself is silent.

This instrument contains no express penalty provisions, enforcement mechanisms, or offence-creating clauses. It is a subordinate legislative instrument that primarily creates or modifies entitlements and administrative discretions. However, the broader legal framework under which it operates contains enforcement possibilities. The Defence Determination 2016/19 is made under section 58B of the Defence Act 1903. Breaches of conditions of service may be dealt with under the Defence Force Discipline Act 1982 if they involve misconduct, such as making a false claim for allowance. Administrative sanctions, such as recovery of overpayments, are likely available under general Commonwealth law (e.g., the Public Governance, Performance and Accountability Act 2013) or under specific provisions in the principal determination.

The transitional provisions contain an implicit enforcement mechanism: the benefit payable is reduced by amounts already received and not repaid. This operates as a self-executing set-off rather than a penalty. If a member fails to repay earlier amounts, they simply do not receive the higher transitional benefit. There is no fine or disciplinary action specified. The child-changing-school provision (only one member eligible if both are members) is enforced by the system: it denies the second claim rather than penalising an erroneous payment. For public holidays, the decision maker’s failure to consider the required criteria could be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977, though that is a general law remedy not specific to this instrument. The vehicle allowance formula uses whole kilometres, and the CDF’s power to set a longer route is discretionary; there are no penalties for misrepresentation of distance, but fraud provisions of the Criminal Code would apply.

Enforcement of entitlements is more relevant: if a member is wrongly denied an allowance, they can raise a grievance through internal ADF processes or potentially apply to the Administrative Appeals Tribunal for review of a decision under the principal determination. The instrument does not specify review rights, but section 58B determinations are generally reviewable under the ADF’s grievance system.

This instrument directly amends the Defence Determination 2016/19, Conditions of service, which is the principal legislative instrument governing ADF conditions. It is a subordinate instrument made under section 58B of the Defence Act 1903. Therefore, its legal force is derived from that Act; if any provision conflicts with the Act, the Act prevails. The Defence Act 1903 itself does not contain detailed conditions; it authorises the making of determinations, so this instrument fills substantive content.

The instrument interacts with other Commonwealth legislation indirectly. The Fair Work Act 2009 generally does not apply to ADF members (defence service is excluded), so these conditions are separate from civilian industrial instruments. The Income Tax Assessment Act 1997 will determine whether the allowances (disturbance, vehicle, deployment, location) are taxable or exempt. The instrument does not address tax treatment, but the character of the payments (reimbursement of expenses versus income) matters for members’ tax returns. The Fringe Benefits Tax Assessment Act 1986 could also apply if some benefits are provided as fringe benefits, though this is unlikely for cash allowances.

The transitional provisions interaction with past administrative decisions is significant. For example, a member who received disturbance allowance under the old rates between 5 January 2023 and commencement will have their entitlement recalculated under the new rates retrospectively. This may require the ADF to amend previously issued PAYG payment summaries if the new rates differ in tax character (unlikely but not impossible). The instrument does not specify how overpayments or underpayments interact with the Public Governance, Performance and Accountability Act 2013 requirements for proper use of public money.

Interaction with Commonwealth superannuation schemes (Military Superannuation and Benefits Scheme, ADF Super) is not addressed but could matter if allowances affect salary for superannuation contributions. Vehicle allowance and deployment allowance are typically not salary, but disturbance allowance sometimes is treated as ordinary time earnings. The instrument does not clarify.

Understanding the interaction with the principal determination requires knowledge that the new rates and criteria in these schedules replace old ones and that the principal determination contains interlinked provisions. For example, the child-changing-school payment in section 6.1.12 refers to a “removal” which is defined elsewhere in the principal determination; the transitional provisions in Schedule 6 refer to sections of the principal determination that remain unchanged. Any reader must cross reference.

This instrument is itself an amendment; it does not contain its own amendment history beyond the commencement table. The principal determination, Defence Determination 2016/19, has been amended multiple times since its making. This is the 2023 (No. 5) amendment, indicating at least four earlier amendments in 2023. The instrument does not list those previous amendments, but the numbering suggests a serial amendment process within a single year, probably reflecting frequent policy adjustments and indexation. Note that Schedule 4 and 5 are sequenced to commence after another specific amendment (the Employment offer modernisation amendment 2023 No. 1), showing that the Defence Department plans overlapping amendments to avoid conflicts. The instrument itself is made on 11 April 2023 and registered presumably shortly after. The commencement table provides a snapshot but notes it will not be updated for later amendments. There is no internal amendment history table or explanation of what the previous provisions were before repeal - that would require consulting the principal determination as previously amended.

The instrument itself has zero cited litigation history; it is a recent instrument and highly unlikely to have been litigated. More broadly, amendments to conditions of service determinations under the Defence Act rarely generate reported litigation because ADF members’ terms are governed by internal grievance and review mechanisms, and courts are generally deferential to the executive in defence matters. There are no cases mentioned in the instrument. It is possible that similar provisions in the principal determination have been considered in the Administrative Appeals Tribunal in matters concerning decision-maker discretion (e.g., for remote location leave travel eligibility), but such decisions would not be binding precedent in the ordinary sense. The absence of any reference to court or tribunal decisions in the instrument is unsurprising - subordinate instruments rarely include litigation history.

Several provisions in this instrument contain traps for the unwary. Retrospective applicability is perhaps the most significant. The transitional provisions apply from dates months before the instrument was made (10 November 2022 for deployment allowance, 5 January 2023 for hardship grades, 31 January 2023 for club membership). Members who have already been paid under the old rates will not automatically receive the difference; the benefit is reduced by amounts already received and not repaid. This creates a perverse incentive: a member who received an old, lower payment and spent it may now be worse off than if they had not claimed at all, because they cannot access the higher rate without repaying the old amount (which they may no longer have). The instrument does not offer a grace period or waiver. Administrators must track whether the member has repaid earlier amounts, which could be administratively messy.

The child-changing-school payment has a trap: it applies only to full-time students at primary or secondary school, expressly excluding pre-school. A member whose child changes from pre-school to school (or who is in pre-school at the time of removal) receives nothing. The $266 amount is modest and may not fully cover the incidental costs of school transition, though the old rate comparison is unknown. The requirement that the change must occur because of a removal does not require the removal to be the sole cause, but must be a required change. If the child was already planning to change schools for other reasons, it may be arguable, but the provision likely expects a causal link.

Vehicle allowance additional rate trigger (1.06 cents per km) applies only if the passenger would otherwise be eligible for travel expenses under the Determination, or if the equipment is Commonwealth-owned/hired. A member carrying a colleague who is not entitled to travel expenses (e.g., a non-defence passenger) does not get the uplift. Similarly, towing a privately-owned trailer does not qualify; it must be Commonwealth-owned or hired. This narrow definition could catch members who misunderstand.

Disturbance allowance categories are detailed but have a potential classification error risk. For example, a “member who has accompanied resident family” facing a removal to a new location on a 1st or 2nd removal gets $1,398; but if that removal is within the same location, the amount drops to $699. The definitions of “same location” and “new location” are not in this instrument but in the principal determination; a member who moves across a base boundary within the same city might get the lower rate. The threshold for “living in” versus “living out” also matters: a member moving from living in to living out receives different rates than moving from living out to living out. These categorisations require accurate record-keeping by the member and unit.

Christmas stand-down fixed dates apply only for 2023-2024. The instrument does not set a permanent formula; it amends the subsection for that specific period. Administrators must ensure the provision is updated each year; failure to do so would leave the effective stand-down period unclear. The public holidays direction power allows up to 10 days per year, but the decision maker must consider Christmas stand-down overlap; if they direct holidays that fall within the fixed period, they may waste the limited direction count or cause confusion. The criteria do not include consultation with members or collective bargaining, which is consistent with the commander’s prerogative.

Operation FORTITUDE deployment allowance applies only to “specified area” as defined elsewhere. The instrument inserts a table item for three areas but does not define the geographical boundaries. A member performing duty partly in Egypt and partly in Israel would get 97.17 cents per day, not separate rates. The transitional provision is backdated to 10 November 2022, which may catch changes in the operational environment. Members who left Operation FORTITUDE before that date are not covered.

For ADF members, compliance is largely about claiming the correct entitlement and avoiding duplicate or erroneous claims. For remote location leave travel, members in Grade A locations should only claim Scheme A benefits, not Scheme B. If in Grade B to E locations, they can claim both. It is prudent to confirm the ADF District allowance grade for the posting location with the unit HR/pay office. For Christmas stand-down, members should note the fixed dates and check local directions for public holidays; if the decision maker directs days that overlap with stand-down, those days count toward the 10-day limit. For overseas postings, members in Israel should ensure club membership costs are claimed only for the Arab-Jewish Community Centre, not other clubs. If they previously claimed for a different club and received payment, they should review whether the transitional provision applies (posting between 31 January 2023 and commencement) and decide whether to repay the earlier amount to get the new benefit. For hardship location grade changes, members at locations for Annex 16.B items 18 and 54 should check their pay after the instrument commences to ensure location allowance and additional recreation leave are adjusted from 5 January 2023. A pay enquiry or grievance may be needed if the adjustment does not happen automatically. For deployment allowance on Operation FORTITUDE, members who deployed from 10 November 2022 should verify that backdated payment is made and that it nets off any earlier deployment allowance received.

For disturbance allowance, members undergoing removal should carefully classify their circumstances: accompanied family, unaccompanied family, living in/out, and number of previous removals. The removal count includes all removals within the ADF, not just those under the current posting. It is wise to keep a personal record of removal history. For the child-changing-school payment, the member should ensure the child is a full-time student at primary or secondary school (not pre-school) and that the change of school is due to the removal. If the change is postponed, payment is only made when the school change actually occurs; so the claim should be submitted after the child enrols. If both parents are members, only one should claim; they must agree which one.

For vehicle allowance, members should record the engine type and capacity of their vehicle accurately. For electric vehicles, the rate is a flat 78 cents per km regardless of capacity. When carrying a passenger who would be eligible for travel expenses (e.g., another member on duty), they can claim the additional 1.06 cents per km. Similarly, when towing a Commonwealth-owned or hired trailer, or carrying equipment weighing at least 100 kg, the extra applies. If using a longer route authorised by the CDF, they must have the authorisation in writing or at least a documented approval; without it, only the shortest reasonable route counts.

For decision makers (commanders, delegates), compliance requires documented consideration of the three mandatory criteria before directing public holidays. It may be prudent to issue a written direction each calendar year stating which days are observed, and explaining how the criteria were satisfied. For remote location leave travel eligibility, the CDF or delegate must record the satisfaction that the member is reasonably likely to serve 12 months. This could be based on posting orders or length of engagement. For vehicle allowance longer routes, the CDF should issue a written determination that the shortest route was not reasonable, and specify the longer route.

For administrators and payroll staff, compliance involves updating systems with the new rates and coding for disturbance allowance, vehicle allowance, deployment allowance, and location allowance. The retrospective transitional provisions require calculation of differences from earlier dates and either issuing additional payments (with reductions for amounts not repaid) or recovering overpayments (if the new rate is lower). Clear communication to affected members is essential, including options regarding repayment of earlier amounts to receive the higher transitional benefit. The sequencing dependency for Schedules 4 and 5 means these cannot be applied until the Employment offer modernisation amendment 2023 (No. 1) commences; administrators must track this. The child-changing-school payment should be programmed to apply per child, with a check for dual-member families so only one claim per child is processed.