Defence Determination, Conditions of service Amendment Determination 2024 (No. 1)

This instrument, the Defence Determination, Conditions of service Amendment Determination 2024 (No. 1), made under section 58B of the Defence Act 1903 (see clause 3), amends the Defence Determination 2016/19, Conditions of service. It commences on 1 February 2024 (clause 2), but contains specified items that have retrospective effect or apply from earlier dates by their terms (see Schedule 3 transitional provisions). The amendments are grouped across three Schedules: Schedule 1 (Domestic amendments), Schedule 2 (Overseas amendments) and Schedule 3 (Transitional provisions). Mechanically, the instrument is not a free‑standing Act; it modifies specific provisions, definitions, annexures and examples in the parent Defence Determination by textual substitution, repeal and insertion (clause 4; Schedules 1-2).

Major mechanical changes include:

• Definition and data mapping edits: the definition of "Hardship location" is now tied to section 12.3.1 (Schedule 1, item 1) and a new defined term "Hardship location grade" is added to mean the grade provided annually to Defence by the data service provider for locations in Annex 16.B (Schedule 2, item 2). The phrase "Data service provider" is also adjusted (Schedule 2, item 1).
• New and transitional pay items: new Pay Grade 7 entries for "Airborne Electronics Analyst - Competency Progression Grade 3/4" are inserted into Annex 3.2.B with effective dates 18 January 2024 to 17 January 2029 (Schedule 1, items 4-5), together with a transitional salary non‑reduction provision protecting members (Schedule 3, clause 2).
• Service term, continuation bonus and agreed period dates are extended: the "Agreed period of service" reference is amended to substitute 31 March 2024 for 31 December 2023 (Schedule 1, item 6) and related transitional application for continuation bonuses is provided (Schedule 3, clause 3).
• Housing and home‑purchase/sale assistance reforms: eligibility rules for HPSEA (home purchase/sale) are tightened with new exclusions (Schedule 1, items 22, 25-29), including explicit ineligibility if a member has received specified prior assistance (7.3.11), or if continuous service will cease within 12 months or has applied to cease (7.3.21.1 a-b), plus reworked rules on reimbursement for sale on ceasing continuous full‑time service or on a transition location agreement (7.3.30; Schedule 1, items 22, 26, 28). Schedule 3 clause 4 gives limited retrospective application for members affected between 1 July 2023 and commencement.
• Living‑in accommodation contributions and vacating consequences: section 7.4.24 is replaced to set precise contribution rates, including differential treatment by rank/pay grade and training categories, and section 7.4.30 is new on vacating liabilities (Schedule 1, items 29, 31-33). Notably, unpaid contributions may be recovered from salary and allowances (7.4.30.3).
• Administrative and drafting housekeeping: multiple textual tweaks (e.g. "resident" to "residence" at 1.3.10.d; 1.3.35.2 correction), removal of numerous examples and "see notes" across many provisions, column heading renumbering in Annex 16.B, and repeal/replacement of several sections to clarify operational detail (Schedules 1-2, many items).
• Overseas/posting travel and accommodation rules: clarifications on double payment when another non‑Commonwealth organisation has paid allowances (13.3.6.3; Schedule 2, item 3), limits on reimbursement for self‑funded travel to the value of travel based on the most direct route and the delegations for decision makers (9.2.17; Schedule 1, item 36), and entitlements where housing becomes unavailable or unfit overseas (15.4.11; Schedule 2, item 12).

The instrument therefore alters eligibility rules, benefit rates, administrative decision‑making delegations, payroll recovery powers and the mapping of allowance tables that underpin hardship and posting arrangements. Several amendments operate from dates prior to the formal commencement and are preserved or applied by transitional clauses in Schedule 3 (notably for Airborne Electronics Analyst pay protection, continuation bonus periods, home‑sale reimbursements for members on transition agreements and approved club membership for a Türkiye posting). All changes are textual edits to the existing Determination rather than standalone new policy statements; the instrument itself gives no detailed policy rationale beyond being made under s 58B and dated 24 January 2024 (signature block).

This instrument operates within the administrative framework of the Defence Determination 2016/19 which prescribes conditions of service, allowances and benefits for ADF members. The main conceptual axes of the amendments are: definitional clarification, pay‑grade and role mapping, housing and relocation assistance eligibility and reimbursement, living‑in accommodation charging and liability, travel reimbursement governance, and administrative housekeeping to align annexures with data inputs.

Definitional and data linkages: The amendment ties "Hardship location" directly to the definition in section 12.3.1 and introduces "Hardship location grade" as a term meaning the annual grade provided by a data service provider for locations listed in Annex 16.B (Schedule 2, items 1-2). This creates an explicit data‑provider link between external hardship grading and the Determination’s allowance tables. The change to "Data service provider" wording (Schedule 2, item 1) is a minor textual shift from "means the" to "means a", potentially broadening which supplier meets the definition.

Pay and position mapping: Annex 3.2.B is expanded to include two new Pay Grade 7 progression grades for "Airborne Electronics Analyst" (Schedule 1, items 4-5). These entries are dated 18 January 2024 to 17 January 2029, and Schedule 3 clause 2 establishes a salary non‑reduction protection covering members in those employment categories who were in place immediately before 18 January 2024.

Housing assistance and HPSEA logic: Several sections relating to home purchase and sale assistance (HPSEA) are amended. Section 7.3.11 is replaced to provide specific exclusions (members who have already received HPAS on or after 1 July 2000, HPSEA for a first home on/before 30 June 2000, or are on certain transition location agreements). Section 7.3.21 is amended to include "land" as an object of assistance; 7.3.21.1 now sets out ineligibility rules if the member will cease continuous full‑time service within 12 months or has applied to cease, or is on specified transition agreements. The rules for reimbursement on sale when ceasing service or when on transition agreements are reworked (7.3.30). A transitional clause (Schedule 3, clause 4) preserves some entitlements for members who met the previous criteria between 1 July 2023 and commencement.

Living‑in accommodation charges and vacating liabilities: Section 7.4.24 sets who pays and how rates are determined, with rates tied to Annex 7.4.B and treatment varying by rank/pay grade and specific training categories (Schedule 1, item 29). Section 7.4.30 enumerates circumstances that trigger contributions on vacating (failure to vacate, leaving property not in former state, failure to remove rubbish, failure to return key) and the two types of recoverable costs (ongoing rate or repair/cleaning/replacement costs). Recovery may be effected from salary and allowances (7.4.30.3).

The amendments affect multiple cohorts: individual ADF members (by rank, pay grade, posting and service status), Defence payroll/administration, contracted service providers with delegated decision roles, and the internal structures that map hardship and posting grades.

Directly affected categories in the instrument:

• Members in Airborne Electronics Analyst employment categories: Schedule 1 items 4-5 create new Pay Grade 7 progression grades effective 18 January 2024 to 17 January 2029 and Schedule 3 clause 2 provides salary non‑reduction protections for members who occupied those employment categories immediately prior to 18 January 2024. This cohort is therefore protected from salary reduction between 18 January 2024 and the Determination’s commencement.
• Members with service continuations around end‑of‑year thresholds: Item 6 of Schedule 1 substitutes the agreed period of service date from 31 December 2023 to 31 March 2024, and Schedule 3 clause 3 applies Part 4 of Chapter 3 as though items 6 and 7 applied earlier. Members whose continuation bonus commencement dates fall between 31 December 2023 and commencement are covered by transitional relief.
• Members seeking HPSEA or HPAS assistance: Sections reworked in Chapter 7 (Schedule 1 items 22, 25-29) adjust eligibility. The changes exclude members who have previously received certain home assistance, members who will cease continuous full‑time service within 12 months, those who have applied to cease service, and those on certain transition location agreements. Members who ceased continuous service while on transition location agreements between 1 July 2023 and commencement are given transitional reimbursement eligibility (Schedule 3 clause 4).
• Members occupying living‑in accommodation: Section 7.4.24 replaced to set contribution rates depending on rank/pay grade, and section 7.4.30 creates specific liabilities for vacating failure, with the express power to recover costs from salary and allowances (7.4.30.3). Members who do not vacate, leave a room in a non‑acceptable state, fail to remove possessions or fail to return keys are put on notice of explicit financial liabilities.
• Members posted overseas: Schedule 2 amends overseas posting provisions including travel and accommodation. Examples: 13.3.6.3 prevents duplicate allowance payments where a non‑Commonwealth organisation already paid for accommodation/meals/incidentals; 15.4.11 provides for temporary accommodation and settling‑in allowances where housing becomes unavailable or unfit; subsection 14.4.5.4 now specifies eligibility for the fare to Australia for dependants joining a member during the posting period (Schedule 2, items 3, 12, 5).

This instrument imposes and clarifies specific duties on members, the Chief of the Defence Force (CDF), decision makers (including named contractor roles), and Defence administrators; it also confers rights to certain payments and imposes limits and conditions on entitlement. The changes should be read as textual adjustments to the rights and duties already established in Defence Determination 2016/19.

Member duties and liabilities:

• Contribution to living‑in accommodation: A member must pay a contribution towards the cost of occupying living‑in accommodation (7.4.24.1; Schedule 1, item 29). The Determination sets tiered payment calculations linked to Annex 7.4.B (7.4.24.3 a-d), and allows a specialised rate for members on leave without pay (7.4.24 penultimate paragraph).
• Vacating obligations: Upon the licence to live‑in ending, members cease to be eligible to occupy accommodation at the end of that day and must vacate. If they do not vacate or leave the accommodation in a state requiring repair, cleaning or key replacement, specified contributions become payable (7.4.30.1-2; Schedule 1, item 31). Subsection 7.4.30.3 gives Defence the right to recover unpaid contributions from salary and allowances.
• HPSEA/HPAS eligibility constraints: Members must satisfy tighter eligibility conditions for home purchase or sale assistance. A member is ineligible if they have received certain prior assistance (7.3.11.a) or if they will cease continuous full‑time service within 12 months or have applied to cease (7.3.21.1 a-b; Schedule 1 items 22, 26). These are duties as much as eligibility gates,members who anticipate service cessation cannot claim HPSEA.
• Self‑funded travel reimbursement conditions: A member who elects to travel at their own expense is eligible for reimbursement of actual travel costs up to the value of travel based on the most direct route (9.2.17.2-3; Schedule 1, item 36). A member deviating from the most direct route must persuade the decision maker of exceptional circumstances to receive greater reimbursement.

Decision‑maker duties and authority:

• CDF’s consideration duty: The wording of subsection 4.8.17.2 is altered from "In deeming it reasonable, the CDF must consider all of these criteria" to "For the purpose of subsection 1, the CDF must consider the following" (Schedule 1, item 10). The change makes the list the formal matters to be considered by the CDF for the subsection’s purpose (the precise list is not reproduced in the amendment instrument).
• Reimbursement decision makers: Section 9.2.17 defines "decision maker" to include specified Toll Transitions employees (National Relocation Administration Services Manager, Regional Relocation Manager, Relocation Administration Services Manager, Senior Case Manager) and internal Defence roles (Director Relocations and Housing; Assistant Director Relocations and Housing) (Schedule 1, item 36). These roles are empowered to satisfy or reject exceptional circumstances claims for travel reimbursement beyond the "most direct route" cap.

The instrument itself sets out administrative enforcement mechanisms and financial recovery powers rather than criminal penalties. Enforcement is primarily through contractual and payroll mechanisms within Defence’s administrative framework.

Salary and allowance recovery:

• The clearest enforcement mechanism is statutory recovery from salary and allowances. Section 7.4.30.3 expressly provides that if a member does not pay the contribution set out in subsection 2 (liabilities arising on vacating living‑in accommodation), the costs may be recovered from the salary and allowances payable to the member (Schedule 1, item 31). This provides Defence an express route to recoup unpaid contributions without separate civil proceedings, subject to internal payroll processes and any statutory constraints in other laws (the Determination’s text gives the power; it does not specify external statutory limitations).

Administrative contributions and charges:

• Section 7.4.24 requires members to pay a contribution for occupying living‑in accommodation and prescribes rates and bands depending on rank/pay grade and accommodation specifics (Schedule 1, item 29). If a member fails to meet this duty, the recourse under 7.4.30.3 is available. The Determination also allows application of different rates if members are on leave without pay (7.4.24 last paragraph), which may act as a compliance lever to ensure correct entitlements are claimed.

Monetary liability for property condition:

• 7.4.30.2.b-d specify recoverable costs if a member vacates accommodation not left in its former state (excluding fair wear and tear), fails to remove rubbish or possessions, or does not return keys. These are framed as costs (repair, cleaning, security, key replacement and lost reallocation revenue) and are recoverable under subsection 3. The itemised schedule provides clarity about what can be charged and gives administrators the basis to quantify claims.

Entitlement denial and eligibility enforcement:

• Several sections deny entitlement where conditions are met (e.g. ineligibility for HPSEA if member has received specified prior assistance or will cease service within 12 months, 7.3.21.1) or where a non‑Commonwealth organisation has already paid for a given period/location (13.3.6.3). Enforcement here is exercised by decision makers who must verify prior payments and service intentions. The Determination instructs decision makers to apply the exclusions; it does not prescribe civil penalties for misstatements by members, but misrepresentation would typically be addressed by administrative recovery of improperly paid amounts under these clauses.

The instrument operates explicitly as an amendment under section 58B of the Defence Act 1903 (clause 3). It does not itself purport to repeal or amend other statutes beyond the Defence Determination 2016/19. Nonetheless, the textual changes cross‑reference other determinations and external data arrangements, creating operational interactions.

Primary legal anchor:

• Defence Act 1903: The instrument is made under s 58B, so its legal authority derives from that statutory delegation. Any challenge to the validity of the instrument would commence with whether the making of such a Defence Determination and amendments is within the power conferred by s 58B.

Inter‑instrument cross‑references:

• DFRT Determination No. 2 of 2017, Salaries: Annex 7.4.B column A replacement references members "paid salary under Schedule B.13 of DFRT Determination No. 2 of 2017, Salaries" (Schedule 1, item 32). This creates a direct dependence on the pay arrangements prescribed in a separate remuneration determination. Administrators must reconcile rank/pay grade categories across instruments when calculating living‑in contributions and allowances.
• Data service provider and hardship grade: The added term "Hardship location grade" (Schedule 2, item 2) ties the Determination to grades supplied annually to Defence by an external data service provider for locations in Annex 16.B. This creates an operational interface between Defence administrative law and supplier contracts. The Determination effectively makes allowance entitlements contingent on vendor data. Any contractual dispute with the data provider could have immediate administrative repercussions for entitlements under the Determination.

Delegation to contractors:

• Section 9.2.17 (Schedule 1, item 36) names Toll Transitions employees as decision makers for reimbursement questions. That delegates an administrative decision function to private contractor employees acting under contract. The Determination’s text confers the role; the legal and contractual arrangements between Defence and Toll Transitions will govern the exact scope, duties and accountability of those contractor decision makers. Interaction with administrative law principles (e.g. whether the contractor’s decisions are subject to judicial review, and the appropriate public law remedies) will be informed by the nature of the statutory delegation and the degree of public function performed by contractors, matters which are not resolved by the amendment text itself.

This Determination is an amendment instrument to Defence Determination 2016/19, Conditions of service. It is self‑contained in Schedules 1 and 2 which list the textual changes and Schedule 3 which contains transitional provisions. The instrument’s front matter records it was made on 24 January 2024 by COL Kirk Lloyd, Acting Assistant Secretary, People Policy and Employment Conditions, Defence People Group (instrument signature block). Clause 2 sets the commencement for "the whole of this Instrument" as 1 February 2024.

Mechanics of amendment:

• Clause 4 of the instrument provides that each instrument specified in a Schedule is amended or repealed as set out in the applicable items, and that any item in a Schedule has effect according to its terms. This is a standard proclamation-style mechanism for amending a subordinate instrument, aligning with the structure used for administrative determinations.

Specific amendments and effective dates:

• Several insertions into Annex 3.2.B are dated 18 January 2024 to 17 January 2029 (Schedule 1 items 4-5). The instrument therefore inserts new pay items effective from 18 January 2024 though the overall instrument commences on 1 February 2024; Schedule 3 clause 2 provides salary non‑reduction between 18 January 2024 and the commencement of the Determination for affected members.
• The agreed period of service definition is adjusted (Schedule 1 item 6), and a consequential transitional clause for continuation bonuses is provided in Schedule 3 clause 3 to preserve application for some members whose agreed period commencement dates fall between 31 December 2023 and the instrument’s commencement.
• Multiple provisions are expressly repealed and replaced, notably in Chapter 7 (housing and living‑in) and Chapter 9 (travel reimbursement) for domestic amendments (Schedule 1), and in Chapters 13-16 for overseas amendments (Schedule 2).

Removal of examples and notes:

• Item 38 in Schedule 1 and item 20 in Schedule 2 repeal examples that previously illustrated particular provisions; item 39 in Schedule 1 and item 21 in Schedule 2 repeal "see notes" that offered related information. The removal of illustrative material can alter interpretive context even though substantive text remains; thus the amendment history includes not only new provisions but also the removal of guidance that previously accompanied text.

Annex and column renumbering:

• Schedule 2 renames Annex 16.B table headings from "Column 1/2/3" to "Column A/B/C" (items 14-16) and removes column 4 (item 17). This changes the structure of annexed tables and therefore the way hardship designation data maps into allowances.

The instrument itself does not record any litigation history. It is an administrative amendment to Defence Determination 2016/19 and contains no reference to judicial decisions, appeals, or legal proceedings. Accordingly, there is no litigation record embedded in the text of the Determination to summarise.

Potential litigation touchpoints identified from the amended provisions (based solely on the instrument’s content):

• Delegation to private contractors as decision makers: Section 9.2.17 defines decision makers to include specified Toll Transitions employees (Schedule 1, item 36). Delegation of administrative functions to private contractors can generate legal challenges about the lawfulness of decisions, accountability, and whether such decisions are amenable to judicial review. The instrument does not address the review path, so disputes about procedural fairness or jurisdictional error in contractor decisions could arise.
• Recovery from salary and allowances: Section 7.4.30.3 gives Defence power to recover unpaid contributions and costs by deduction from salary and allowances (Schedule 1, item 31). A dispute could arise if a member contests the legality of a particular deduction, for example on grounds that the deduction breaches another statutory protection or industrial instrument or that proper process was not followed. The Determination grants recovery authority but does not specify detailed procedural safeguards in the text presented here.
• Interpretation of eligibility exclusions for HPSEA: Amendments to 7.3.11 and 7.3.21.1 establish specific exclusionary criteria (receipt of certain prior assistance, service cessation within 12 months, being on transition location agreements) (Schedule 1, items 22, 26). Members adversely affected by these exclusions might dispute the factual determination of whether they fall within an exclusion or challenge the legality of retrospectively applied transitional clauses.
• Data provider grading and entitlements: The linkage of hardship location entitlements to a "Hardship location grade" provided annually by a data service provider (Schedule 2, item 2) creates a factual dependence on third‑party data. Members may litigate if allowances are adjusted based on data they say is inaccurate or incorrectly applied. The instrument does not create an internal mechanism for disputing the vendor data in the Determination text.

What the instrument supplies is the legal basis for administrative decisions rather than answers to disputes. If litigation occurs, it would turn on how these amended provisions are applied by Defence and by contractor decision makers, and on procedural and statutory limits external to the Determination (not set out here). The Determination’s text does not itself provide a dispute resolution clause or a privative clause excluding review, so general avenues for administrative challenge could remain available, depending on the broader legislative and regulatory context.

This section flags practical traps, drafting‑detail effects and timing issues that may catch practitioners, administrators and members. Each item is grounded in the textual amendments.

1. Effective dates vs commencement:

• New Airborne Electronics Analyst pay items in Annex 3.2.B are dated 18 January 2024 to 17 January 2029 (Schedule 1, items 4-5), but the instrument's declared commencement date is 1 February 2024 (clause 2). Schedule 3 clause 2 provides salary non‑reduction protection between 18 January 2024 and commencement, preventing retrospective pay reductions but creating a window where pay mapping may appear inconsistent. Practitioners must note the bifurcation between effective dates in annexures and the instrument’s formal commencement.

2. Transitional protections with narrow scope:

• The continuation bonus transitional relief (Schedule 3 clause 3) only applies if the commencement date of the agreed period falls between 31 December 2023 and commencement of the Determination. The clause applies Part 4 of Chapter 3 as though items 6 and 7 had applied earlier. That relief addresses a timing risk but only for specified intervals; parties outside those windows receive no similar protection.

3. HPSEA eligibility exclusions tied to cessation or applications to cease:

• Section 7.3.21.1 excludes members from HPSEA if they have received notice that their continuous full‑time service will cease within 12 months or have applied to cease within 12 months (Schedule 1, item 26). Members intending to leave may lose entitlement; conversely, members seeking HPSEA may have an incentive to defer applications to cease. That creates potential perverse incentives and disputes about the factual timing of notices and applications. The text gives no further guidance on formality of "applied to cease" or the exact evidence required.

4. Recovery from salary without spelled‑out procedural safeguards:

• 7.4.30.3 authorises recovery from salary and allowances (Schedule 1, item 31). The Determination does not in the amendment text set out required notice periods, instalment options, or dispute resolution steps before deduction. Practitioners should check ancillary policy or payroll procedures; absent them members may face sudden deductions and then need to challenge the deduction ex post.

5. Delegation to private contractor employees as decision makers:

Compliance requires coordinated action across Defence personnel policy, payroll, housing administration, and contracted relocation services. The following practical checklist is grounded in the amended provisions so administrators, members and advisers can operationalise the Determination.

1. Update authoritative texts and advice:

• Amend all internal guidance, policies and staff instruction packages to reflect textual changes in the Determination. Key sections to reflect immediately include 7.4.24 (living‑in contributions), 7.4.30 (vacating liabilities and recovery), 7.3.21/7.3.30 (HPSEA eligibility and sale reimbursement), 9.2.17 (self‑funded travel reimbursement and decision‑maker list), and Annex 3.2.B (Airborne Electronics Analyst pay items) (Schedule 1 items 4-5, 29-31, 22, 25-28, 36).

2. Payroll and deductions readiness:

• Ensure payroll systems can implement recovery powers under 7.4.30.3. Design standard operating procedures for notice to members, calculation of recoverable amounts (repair, cleaning, key replacement, ongoing rate where applicable) and timing of deductions. Document authority traceable to section 7.4.30.3 before processing deductions.

3. Housing vacating protocols:

• Implement vacating checklists and photo/video records at handover to evidence "former state" and fair wear and tear distinctions. Communicate to members their obligations on final day of licence to live in, and procedures for key return to avoid charges under 7.4.30.2 items 1-5.

4. HPSEA entitlement verification:

• Before approving HPSEA claims, verify that the member has not received prior HPAS/HPSEA entitlements that create exclusions (7.3.11) and verify whether the member has received notice of cessation of continuous full‑time service or applied to cease within 12 months (7.3.21.1 a-b). Require documentary evidence for notices/applications to cease, and implement a denial checklist for ineligible claims.

5. Travel reimbursement authorisation process:

• For members who elect to travel at their own expense, require submission of intended route and estimated costs in advance. Apply section 9.2.17.2-3: reimburse actual costs up to the most direct route value; any deviation must be pre‑approved or justified to a decision maker listed in subsection 4, including the specified Toll Transitions roles and Defence relocation officers. Ensure Toll Transitions (or equivalent contractor) has documented decision criteria, recordkeeping and channels for internal review.