Defence Determination, Conditions of service Amendment Determination 2024 (No. 13)

The instrument operates within the framework of the Defence Determination 2016/19, which is a comprehensive legislative instrument that sets out conditions of service for members of the Australian Defence Force. The Determination is divided into chapters and parts; this amendment touches Chapters 3, 5, 8 and 17.

Salary non-reduction (Schedule 1) refers to an existing mechanism in Annex 3.2.D whereby certain officers are protected from a reduction in salary when they move from a higher paid role into a training or lower graded position. The table specifies pay grades, employment categories, and effective periods for that protection. The new entries cover Public Relations officers in four specific training or command milestones.

Gender neutral language is a structural change across the maternity and parental leave provisions. The instrument replaces feminine pronouns with neutral terms such as “the member” or “they”. This shifts the legal text from assuming the leave taker is female to accommodating any member, regardless of gender, who gives birth or takes parental leave. The change also aligns with modern drafting practices and possibly with broader anti-discrimination obligations, though the instrument itself does not state this reason.

Leave period increases are straightforward: the minimum maternity leave period rises from 14 to 18 weeks; the minimum sole parent parental leave rises from 18 to 26 weeks; the maximum paid parental leave rises from 20 to 40 weeks. The new minimum for half pay parental leave is 7 consecutive days. These are substantive increases in the quantum of paid leave available to members.

Repeal of maternity leave eligibility section (s 5.6.9) removes a provision that presumably contained distinct eligibility criteria. Its repeal may merge maternity leave eligibility into general parental leave eligibility, or may simply streamline the Determination. The instrument does not explain the purpose.

Substituted section 5.6.29 (cancelling leave without pay) now clearly provides that a member who is pregnant and has not yet started leave without pay may cancel that application and take maternity leave instead. If the member has already started leave without pay, cancellation is ineffective and the existing leave continues. This tightens the options available once leave without pay has commenced.

ADF family health program (Schedule 3) provides reimbursement for out of pocket expenses for eligible dependants of members. The key conceptual change is the removal of the need for a referral by a healthcare physician. Previously, the program covered services only if an eligible dependant had been referred in relation to an existing condition. Now, no referral is required, and the list of reimbursable items is broadened to include memberships and fitness classes. The definition of “healthcare physician” is repealed because it is no longer relevant.

Deployment allowance is a daily payment for members serving in specified operational areas. Schedule 4 adds two new operations (BEECH and HYDRANTH) and expands the geographic scope of an existing operation (item 9). The allowance rates are fixed per day depending on the area. Transitional provisions (Schedule 5) backdate the allowance to the start of each operation, with escalating rates reflecting later adjustments.

Savings provisions (Schedule 6) protect members who had already become entitled to parental or maternity leave under the old regime for a child born, adopted or joining the household on or before 12 February 2025. Without this savings clause, those members would automatically receive the increased leave periods under Schedule 2. The savings provision means that the old, shorter periods apply to them. This avoids retrospective reduction of entitlements for existing parents but also means some members will receive less leave than others depending solely on the child’s arrival date. A separate savings clause preserves the old half pay minimum period (likely 14 days or more) for members already approved before commencement.

Commencement dates are staggered. Schedules 1, 3, 4 and 5 commence on 5 December 2024 (the date of registration or a specified date). Schedule 2 and Schedule 6 commence on 13 February 2025. This delay allows time for administrative preparation and for notification to members.

The instrument directly affects all current and future members of the Australian Defence Force, but the impact varies by category.

Officers in the Public Relations mustering are the cohort affected by Schedule 1. The four new salary non-reduction entries cover officers at pay grades 2 (Under Training and Primary Qualification), 6 (Shore Charge) and 8 (Shore Command). These are likely Navy-specific roles given the maritime terminology, though Public Relations is a broader mustering. The effect is that these officers will not suffer a salary reduction when they move into these training or command roles, which may be temporary or developmental postings. The cost to the Department of Defence is the difference between the higher salary they would otherwise be paid and the lower salary the role would normally attract; this cost is borne by the employer.

All members who may take maternity or parental leave are affected by Schedule 2, particularly those who give birth or have a child join their household after 12 February 2025. The changes are positive in terms of leave quantum: longer minimum maternity leave (18 weeks up from 14), longer sole parent leave (26 weeks up from 18), and longer maximum paid parental leave (40 weeks up from 20). However, the savings provisions mean that members whose child arrives on or before 12 February 2025 and who were already eligible for leave under the old provisions will receive the old, shorter leave periods. This creates a discontinuity: two members with children arriving a day apart will have different entitlements. The gender neutral changes also affect interpretation: any member regardless of gender who becomes pregnant or takes parental leave now uses the same provisions. This may particularly affect non-birth parents or male members who adopt or have a child via surrogacy, though the Determination’s existing recognition of such situations is not amended.

Eligible dependants of members are affected by Schedule 3. The removal of the healthcare physician referral requirement reduces barriers to accessing the family health program. Eligible dependants can now claim reimbursement for gym memberships, fitness class fees, and swimming pool passes without needing a medical referral. The expanded list of reimbursable classes (aqua fitness, personal training, Pilates, yoga, Zumba) gives eligible dependants more choice. The cost to the Commonwealth is the reimbursement of out of pocket expenses up to caps set elsewhere in the Determination (not amended). The change also affects providers of these services: they must have an Australian Business Number to enable reimbursement, creating an indirect incentive to formalise their business registration.

Members deployed on Operations BEECH and HYDRANTH are affected by Schedule 4 and the transitional provisions in Schedule 5. Operation BEECH relates to the Middle East, including Israel, the Occupied Palestinian Territories, Lebanon and Sinai. Operation HYDRANTH relates to maritime security in the Arabian Sea, Gulf of Oman and Persian Gulf, and land areas in Bahrain and Qatar. Members who served in these operations from October 2023 or February 2024 respectively and who had not previously received deployment allowance for those periods will now receive backdated payments at the published daily rates. The rates increase over time, reflecting adjustments already made in the Determination for other operations. The transitional provisions ensure that no member receives double payment by reducing the benefit by any amount already paid.

Members serving in Iraq, Syria, and the expanded region under existing Operation OKRA (or whatever item 9 covers) are affected by the expansion of the geographic area and the new rates for Bahrain, Cyprus, Jordan, Kuwait, Qatar, UAE, and parts of Türkiye. This may increase the number of members eligible for deployment allowance for service in those locations.

Administrative staff in Defence People Group and payroll are affected because they must implement the new leave periods, process backdated allowance claims, update systems for the family health program changes, and manage the savings provisions. The compliance burden includes verifying which members fall under savings provisions, processing backdated claims for deployment allowance going back to October 2023, and updating eligibility checking for family health reimbursements.

The instrument confers rights on members and eligible dependants, and imposes duties on the Chief of the Defence Force (as the employer delegate) to administer and pay the entitlements.

Right to salary non reduction (Schedule 1): Officers in the specified Public Relations roles have a right not to have their salary reduced for the period 19 December 2024 to 19 December 2029 while they hold those roles. This is a statutory condition of service enforceable through military administrative processes.

Right to paid maternity leave (Schedule 2): A member who becomes pregnant is entitled to paid maternity leave under Division 2 of Part 6. The minimum period is 18 weeks (previously 14). The right accrues on the member’s application and satisfaction of eligibility conditions under that Division (not all of which are amended). The right to cancel leave without pay and substitute maternity leave is preserved but only if the member has not started the leave without pay.

Right to paid parental leave (Schedule 2): A member who has a child by birth, adoption or otherwise joining the household is entitled to paid parental leave. The maximum period is now 40 weeks (previously 20). For sole parents, the minimum period is 26 weeks (previously 18). The minimum period for half pay leave is 7 consecutive days (not previously specified in the amendment but implied by the repeal and substitution). The member may choose full pay or half pay subject to those minimum periods.

Right to reimbursement for family health expenses (Schedule 3): Eligible dependants of members have a right to reimbursement of out of pocket expenses for gym membership, Fitness Passport, swimming pool membership, and specified fitness classes. This right is no longer contingent on referral by a healthcare physician. The provider must have an Australian Business Number. The right is subject to any limits in section 8.9.6A (not amended).

Right to deployment allowance (Schedule 4): Members serving in the specified areas for Operations BEECH and HYDRANTH, and the expanded area for operation item 9, have a right to daily allowance at the stated rates. This is a payment in addition to normal salary.

Right to backdated deployment allowance (Schedule 5 transitional provisions): Members who served on Operation BEECH between 13 October 2023 and commencement, or on Operation HYDRANTH between 15 February 2024 and commencement, have a right to backdated allowance at the rates specified in the transitional tables, reduced by any amount already paid. This is a one off right that vests on commencement, not an ongoing entitlement.

Right to retain old leave periods (Schedule 6 savings): Members who were eligible for paid maternity or parental leave before 13 February 2025 for a child born, adopted or joining the household on or before 12 February 2025 have a right to have the leave period that applied before the amendment continue to apply. This means they are entitled to 14 weeks maternity leave (not 18) and 20 weeks parental leave (not 40). Similarly, members approved for half pay parental leave before commencement retain the old half pay minimum period. This right is a protection against retrospective reduction, but it also imposes a duty on the member to exercise it; if they wish to receive the increased leave, they must have the child after 12 February 2025 or not have been eligible before that date.

Duties on Defence: The instrument imposes duties on Defence to administer payments accurately, to update the determination text, to process backdated claims, and to inform members of their rights. There is no express duty to publicise the changes, but the savings provisions create a clear need for members to understand which regime applies to them.

Duties on providers: For the family health program, providers must have an Australian Business Number to enable reimbursement. This is not a direct duty on members but a condition for reimbursement.

The instrument itself does not create new penalties or enforcement mechanisms. It amends conditions of service under the Defence Determination, which is a legislative instrument. Breach of a condition of service, such as non payment of an entitlement, would be enforceable through internal ADF complaints mechanisms (including redress of wrongs under the Defence Act 1903), the Defence Force Ombudsman, or potentially through the Fair Work Commission if the entitlement is an industrial instrument (though the Determination is made under the Defence Act, not the Fair Work Act, so jurisdiction may be limited). There is no civil penalty provision within this amendment.

The deployment allowance transitional provisions create a right to backdated payment; if Defence fails to pay, the member can lodge a complaint. The savings provisions require Defence to correctly identify which regime applies; an incorrect decision could be challenged.

For the family health program, the requirement that providers have an Australian Business Number is a condition for reimbursement; if a provider does not have one, the member cannot claim reimbursement, but there is no penalty on the provider. The repeal of the healthcare physician referral requirement removes a potential enforcement risk for members who might have accessed services without a referral.

The gender neutral language changes do not affect enforceability; they simply make the text grammatically consistent with modern usage.

In practice, enforcement is administrative rather than penal. The Director General who made the determination has internal audit and compliance functions. Members with grievances follow the military discipline system or external oversight bodies.

The Defence Determination is made under section 58B of the Defence Act 1903, which gives the Minister (or delegate) power to make determinations about conditions of service. This instrument is a legislative instrument under the Legislation Act 2003 and is subject to disallowance by Parliament, though that is not mentioned in the instrument.

The determination interacts with the Fair Work Act 2009 indirectly. ADF members are excluded from the national workplace relations system under section 13 of the Fair Work Act (definition of “national system employee” excludes members of the Defence Force). Therefore, the parental leave provisions in the Fair Work Act (12 months unpaid, 18 weeks paid at minimum wage) do not apply. The Defence Determination provides its own paid leave, which is more generous in some respects (40 weeks paid maximum) but less generous in others (no separate unpaid parental leave beyond what the determination provides). The amendment does not align the determination with the Fair Work regime; it operates independently.

The gender neutral changes align the determination with the Sex Discrimination Act 1984 and the Fair Work (Anti discrimination) Act principles, though the instrument does not refer to these. By removing feminine only pronouns, the instrument reduces the risk of a claim that maternity leave provisions discriminate against male birth parents or non birth parents. However, the savings provisions that preserve old leave periods for members with children arriving before 13 February 2025 could create a temporary inconsistency: a male parent who gave birth (unlikely but possible after gender transition or through surrogacy) might have had limited access under the old gendered language.

The deployment allowance interacts with service conditions under the Defence Force Regulations and the Defence (Special Operations) Act if applicable. The expanded operation item 9 may overlap with other operations; the transitional provisions for Operations BEECH and HYDRANTH ensure no double payment.

The family health program interacts with the healthcare system generally, but the removal of the referral requirement means the program no longer requires a link to a health professional. This may reduce interaction with Medicare or private health insurance, as members may claim from Defence for services that are also covered by other schemes. The determination likely contains provisions preventing double dipping, but these are not amended.

The salary non-reduction provisions interact with the Defence Force Remuneration Tribunal’s determinations on military salaries. The determination overrides any reduction that would otherwise occur under the Tribunal’s determinations, but only for the specified roles and period.

The instrument itself is an amendment, so it interacts with the principal determination as a whole. Each amendment is to be read as part of the principal instrument from its commencement date. The transitional and savings provisions create a temporal interaction: old law applies to some members, new law applies to others based on date of child’s arrival or date of approval.

This instrument is itself an amendment; it is not a consolidation or reissue. It amends the Defence Determination 2016/19, Conditions of service, which has been amended numerous times previously. The instrument does not list its amendment history; that is found in the Federal Register of Legislation. However, the substance of the changes suggests previous amendments to the same schedules were modified: for example, the salary non-reduction table at Annex 3.2.D already contained 12 entries before this amendment adds four more. The parental leave provisions previously had shorter periods (14 weeks minimum maternity, 20 weeks maximum parental), so earlier amendments may have introduced those periods. The deployment allowance table had existing items for other operations; this amendment adds items 3A and 4A and modifies item 9.

The instrument’s citation is “Defence Determination, Conditions of service Amendment Determination 2024 (No. 13)”, indicating it is the thirteenth such amendment in 2024. This suggests a high volume of changes to the determination, likely reflecting operational demands and policy adjustments.

The transitional provisions for deployment allowance refer to past periods: 13 October 2023, 9 November 2023, 7 November 2024. These dates reflect when earlier amendments to the base rates occurred (AUD 181.22 to 188.47 to 195.63 for Israel/Lebanon). The instrument effectively backdates the allowance to the start of the operation, with the rate adjusting at each previous amendment date. This confirms that earlier amendment determinations adjusted the base deployment allowance rates generally, and this amendment now applies those rates to Operations BEECH and HYDRANTH from their inception.

The family health program amendments do not appear to have a retrospective effect beyond 1 December 2024 (Schedule 5 clause 2). The savings provisions for maternity leave prevent the new longer periods from applying to existing parents, which is a common practice to avoid retrospective entitlements.

The instrument does not reference any litigation, nor does it arise from a court order. The Defence Determination is litigated infrequently because ADF members’ conditions of service are largely outside the jurisdiction of courts (being governed by military law and the Defence Act). However, there have been cases in the Federal Court and High Court concerning the validity of determinations under section 58B, and challenges to specific conditions under the implied freedom of political communication or discrimination grounds. This instrument is unlikely to attract litigation because it expands entitlements rather than restricts them. The savings provisions could theoretically be challenged by a member who receives shorter leave than a colleague whose child is born one day later, but the differential is based on a clear date and is preserved by a savings clause, which is a standard technique.

The backdated deployment allowance provisions could give rise to administrative review applications if Defence incorrectly calculates the amount or denies payment. The transitional provisions are designed to prevent disputes by specifying dates and rates, and by reducing the benefit by amounts already paid. Litigation is unlikely unless Defence fails to implement correctly.

The removal of the healthcare physician referral requirement eliminates a potential source of dispute: previously, a member might have challenged a denial of reimbursement for lack of a referral. Now that ground is removed.

Overall, the instrument is low risk for litigation, as it delivers increased benefits and contains clear transitional mechanisms.

Several provisions contain traps for the unwary, both for members and for administrators.

Savings provisions trap for the member: Schedule 6 clause 2 provides that a member who was eligible for paid maternity or parental leave under the old provisions immediately before the commencement of Schedule 2 (13 February 2025), and where the child was born, adopted or joined the household on or before 12 February 2025, retains the old leave periods. This means that if a member’s child is born on 12 February 2025, they receive only 14 weeks maternity leave and 20 weeks parental leave. If the child is born on 13 February 2025, the member receives 18 weeks maternity and 40 weeks parental. The savings provision therefore creates a significant disparity based on a single day. A member expecting a child in early February 2025 would be well advised to consider whether they can delay the birth or adoption until after 12 February 2025, but that is not always possible. The trap is that many members might assume all births qualify for the new entitlements, but the savings clause grandfathers those with a child arriving before the commencement date.

Half pay parental leave trap: Schedule 6 clause 3 preserves the old section 5.7.5 for members who had been approved to take leave at half pay before the commencement of Schedule 2. The old provision likely required a minimum period of 14 days at half pay (or more). The new provision (item 30) sets a minimum of 7 consecutive days. A member approved for half pay before commencement is stuck with the higher minimum, even if they would prefer the shorter new minimum. They cannot switch to the new regime unless they cancel their approval and reapply after commencement, but the savings clause says the old provision “continues to apply to a member who has been approved”. This likely means the approval is irrevocable in terms of the minimum period.

Repeal of section 5.6.9: The instrument repeals section 5.6.9, which previously set out eligibility for paid maternity leave. The repeal may merge maternity leave eligibility into general parental leave eligibility, but the instrument does not substitute a new provision. This could create a gap: what now constitutes eligibility for paid maternity leave? The remaining Division 2 (maternity leave) still references “member who is pregnant” (as amended), but the specific criteria may now be unclear. Members should check whether separate eligibility criteria survive elsewhere in the Determination. If none do, eligibility may default to the parental leave criteria, which could require a child to be born or adopted, rather than just pregnancy.

Backdated deployment allowance trap: The transitional provisions in Schedule 5 clauses 3 and 4 reduce the benefit by any amount already received. A member who was paid deployment allowance at a lower rate during the backdated period will receive the difference. But if a member was paid under a different operation code that already covered the area, they may have already received the full amount, resulting in nil additional payment. The calculation is done by Defence, but members should verify they are not underpaid. The rates escalate over time; members who served only in the earliest period receive the lowest rate (AUD 181.22 for Israel/Lebanon for 13 Oct 8 Nov 2023). If they are later deployed again, they receive the higher rate for later periods. The trap is that members may not realise they need to claim the backdated allowance; the transitional provisions do not specify an automatic payment mechanism.

Family health program referral removal: The removal of the healthcare physician referral requirement means that eligible dependants can now claim reimbursement for gym membership without any medical justification. However, the determination still requires that the provider have an Australian Business Number. A casual fitness instructor without an ABN will not qualify. Also, the classes must be of the types listed (aqua fitness, personal training, Pilates, yoga, Zumba). A class described as “HIIT” or “CrossFit” may not qualify unless it falls within “personal training” or another listed category. Members should check the class description carefully. The definition of “gym membership” is not amended; there may be caps on reimbursement or restrictions on memberships that include non gym services (e.g., spa or social club).

Salary non-reduction end date: The four new entries in Schedule 1 have an end date of 19 December 2029. After that date, the salary protection ceases, and the officer may face a reduction if they remain in the role. Officers should plan for this.

Commencement dates: Schedule 2 and Schedule 6 commence on 13 February 2025, while other schedules commence on 5 December 2024. This means that between 5 December 2024 and 12 February 2025, the old maternity and parental leave provisions remain in force, but the family health program changes are already in effect. Members taking leave during this window should be careful to apply under the old provisions.

Interaction of savings with new leave: A member who is eligible under savings provisions receives the old leave period, but the other amendments in Schedule 2 (gender neutral language, repeal of section 5.6.9, new section 5.6.29) still apply to them from 13 February 2025. The savings only preserve the length of leave, not the eligibility criteria or cancellation rules. So the member’s rights may be a hybrid of old and new provisions.

Compliance with this instrument falls on both Defence administration and individual members.

For Defence administrators (People Policy, payroll, garrison HR):

• Update the salary non-reduction table (Annex 3.2.D) to include the four new entries from 5 December 2024. Ensure payroll systems prevent salary reduction for the specified roles during the period 19 December 2024 to 19 December 2029.
• From 13 February 2025, update all maternity and parental leave policies, forms and guidance to reflect gender neutral language. Remove references to “she” and “her” and replace with “the member” and “their”. Update maximum and minimum leave periods in HR systems.
• For members applying for maternity or parental leave on or after 13 February 2025, determine whether the savings provisions apply. Check if the member was eligible for leave under the old provisions immediately before 13 February 2025 AND the child was born, adopted or joined the household on or before 12 February 2025. If both conditions are met, apply the old leave periods. If not, apply the new periods.
• For members who were approved for half pay parental leave before 13 February 2025, apply the old minimum period (likely 14 days) to that approval. Do not apply the new 7 day minimum to existing approvals.
• Update family health program reimbursement guidelines to remove the healthcare physician referral requirement from 5 December 2024. Update the list of reimbursable memberships and classes. Include the transitional provision so that members claiming for services between 1 December and 5 December 2024 can also benefit.
• Process deployment allowance for Operations BEECH and HYDRANTH. For members who served during the backdated periods, calculate the amount payable using the rates in Schedule 5 tables. Reduce the amount by any deployment allowance already paid for the same duty. Issue backpayment as soon as practicable.
• Update deployment allowance tables to include the new operation codes for BEECH and HYDRANTH, and the expanded geography for item 9.
• Notify members of the changes, particularly the savings provisions and the backdated allowance. Provide a form or process for members to claim backdated deployment allowance if not already paid.
• Ensure all systems comply with the commencement date differences.

For ADF members:

• If you are a Public Relations officer in a pay grade 2, 6 or 8 role covered by the new entries, no action is required; the protection is automatic. But note the end date in 2029.
• If you are pregnant or expecting a child, carefully note the savings provisions. If your child’s expected arrival date is on or before 12 February 2025, you may be entitled to old, shorter leave. Consider whether you can delay leave start or take other steps. If you are already eligible for leave under the old provisions before 13 February 2025, you cannot choose the new longer leave period. If your child arrives after 12 February 2025, you receive the new entitlements.
• If you were approved for parental leave at half pay before 13 February 2025, you are stuck with the old minimum period for that approval. If you want to use the shorter new minimum, you would need to cancel and reapply after 13 February 2025, but check if the savings clause prevents that.
• If you have eligible dependants, you can now claim reimbursement for gym memberships and fitness classes without a medical referral from 5 December 2024. Ensure the provider has an ABN and that the class type is on the list. Keep receipts.
• If you served on Operation BEECH at any time from 13 October 2023 or Operation HYDRANTH from 15 February 2024, check your payslips for deployment allowance. If you have not received it or have received a lower rate, contact your administration to claim the backdated amount under the transitional provisions. Provide proof of service dates.
• If you served in Iraq, Syria, Bahrain, Cyprus, Jordan, Kuwait, Qatar, UAE, or Türkiye east of Longitude 35° East, note that the geographic area for deployment allowance has expanded. You may be entitled to allowance for days you previously were not.
• Review the gender neutral language changes if you are a male member or non birth parent; make sure you know you are entitled to maternity leave under the same provisions.

For providers of fitness services to eligible dependants: ensure you have an Australian Business Number. This is the only eligibility condition for the member to claim reimbursement. No referral is needed.

The instrument does not prescribe a compliance method; it is self executing upon commencement. The principal compliance risk is administrative error in applying the savings provisions and backdating allowances.