Defence Determination, Conditions of service Amendment Determination 2024 (No. 7)

This instrument is an amendment determination, titled Defence Determination, Conditions of service Amendment Determination 2024 (No. 7), made under section 58B of the Defence Act 1903 by COL Kirk Lloyd on 28 June 2024. It amends Defence Determination 2016/19, Conditions of service, across seven schedules and adds transitional provisions. Mechanically the instrument does four kinds of things: it creates a new mechanism for recreation leave sharing between dual-serving couples (new Division 9, sections 5.4.46-5.4.51); it expands who can be an eligible dependant for the ADF family health program to include certain “recognised other persons” (inserting section 8.9.2A and amending 8.9.1); it adjusts post-index location lists (Annex 12.3.B) and numerous travel, meal and accommodation rates and tables (many items in Schedule 6 and Annex 9.5.A/B); and it makes a series of miscellaneous administrative and entitlements changes (Schedules 4 and 5), including cost-of-removal inclusions, education assistance formula detail, and recognition-of-service rules.

The instrument specifies staggered commencements: sections 1-4 commence on registration; Schedules 1-4 commence 4 July 2024; Schedule 5 commences 12 September 2024; Schedule 6 commences 10 October 2024; and Schedule 7 (transitional provisions) commences 4 July 2024 (see the Commencement table). Each schedule lists precise textual substitutions, insertions and repeals in the Conditions of service, for example replacing tables (meal rates at s 4.5.9), inserting new clauses (Division 9 at 5.4.46-51) and altering formulas (education tuition cap formula in s 15.6.10(2)).

The instrument explicitly relies on CDF satisfaction as the decision point for several discretionary items (for example the donation of recreation leave under s 5.4.50 and recognition of prior service under s 5.5.15.2). It places administrative obligations (use of approved forms, PMKeyS listings) and sets numeric thresholds (minimum recreation leave balance of 10 days after donation, minimum four weeks’ notice, prohibition on donation of purchased leave credits, timing and eligibility restrictions).

Officially, the amendments purport to operationalise family-focused entitlements (sharing recreation leave for dual-serving couples; including recognised other persons in health program eligibility) and to align financial rates with updated cost measures (meal, travel, accommodation and tuition formula adjustments). Those are purpose-claims embedded in the inserted headings and text (for example 5.4.46 Purpose and 15.6.1 Purpose). The remainder of this deep dive tests the mechanical changes against administrative costs, decision-making discretion, compliance burdens, and likely behavioural effects in service members and Defence administration.

The instrument modifies the Conditions of service by adding, changing and replacing discrete provisions. Key concepts introduced or amended are:

• Recreation leave sharing for dual-serving couples (Division 9, sections 5.4.46-5.4.51). Conceptually this allows one member of a dual-serving couple to donate recreation leave credits to the other, subject to conditions. The new Division defines donor member and receiving member, restricts application to those both on continuous full‑time service, requires minimum balances post-donation (donor must have at least 10 days left), excludes purchased recreation leave credits, and requires a four-week advance application on an approved form (5.4.46-5.4.50). It also includes an automatic reversion mechanism if the receiving member ceases continuous full-time service: unused donated credits return to the donor (5.4.51).

• Expansion of eligible dependants for the ADF family health program (inserting 8.9.2A). “Eligible dependant” in relation to a member now explicitly includes resident family and “recognised other persons” as defined in paragraph 1.3.37.1.d (interdependent relationships), provided the person is listed on PMKeyS as resident family or recognised other person, is registered for the family health program, and is not a member (8.9.2A). The instrument also amends s 8.9.1 to read “resident family, and certain recognised other persons”.

• Post index location adjustments (Annex 12.3.B). New entries are added or reallocated, for example Vienna (Austria) as item 1AA, and changes to Germany and Republic of Korea entries (Berlin and Busan entries) and the designation for New York State excluding Manhattan (item 67). These tables feed elsewhere (for example calculations using post indices under s 12.3.14A referred to in the education tuition formula at 15.6.10(2)).

• Travel and meal rates and per-location allowances (Schedule 6, various tables and Annex 9.5.A/B updates). Multiple meal allowances and per-location subsistence and accommodation rates are replaced with new figures: for instance s 4.5.9 new table sets breakfast $30.35, dinner $59.75, and Annex 9.5.A Part 4 sets incidentals at $23.95. The instrument sets differential rates for capital cities/high-cost centres versus other locations, seasonal rates for Darwin and certain Northern Territory locations, and per-location daily allowances by rank grouping.

• Cost of removal and inclusion of recognised other persons (Schedule 5). Paragraph 6.5.24A.b is amended to include vehicle removal assistance and travel for resident family and recognised other persons as costs “in connection with the removal”, which will affect what Defence reimburses on relocation (6.5.24A.b.i-iii).

Primary groups affected, as discernible from the text, are:

• Dual-serving couples who are both on continuous full-time service. The new Division 9 (5.4.46-5.4.51) applies only to members who are part of a dual-serving couple and both on continuous full-time service (5.4.48). It excludes couples where either has six months or less until ceasing continuous full-time service and excludes donations if the member or partner donated within the prior 12 months (5.4.49).

• Individual service members who may donate or receive recreation leave. Donors must retain at least 10 days post-donation and cannot donate purchased recreation leave credits (5.4.50(1)(a)-(b)). Recipients receive “donated recreation leave credits” recorded on the day of donation (5.4.50(4)) and must return unused credits if they cease continuous full-time service (5.4.51).

• Members who have “recognised other persons” in interdependent relationships. Schedule 2 amends the eligible dependant definition (8.9.2A) so that a recognised other person listed on PMKeyS and registered for the family health program is an eligible dependant for Chapter 8 Part 9 (subject to not being a member). Transitional clause 2 applies to members who registered such recognised other persons between 4 July and 4 August 2024.

• Members posted overseas and their dependants for education assistance. Schedule 4 changes tuition fee entitlements and introduces a capped formula (15.6.10), affecting members with children attending overseas schools. The calculation references the post index (s 12.3.14A) and exchange rates, so it materially affects entitlement levels for particular postings.

• Members who relocate (cost-of-removal). Schedule 5 extends what counts as “in connection with the removal” to include vehicle removal assistance and travel for resident family and recognised other persons (6.5.24A.b.i-iii). That enlarges the class of reimbursable costs for moves and so affects members incurring those costs.

• Members who claim travel, meal or accommodation allowances. Schedule 6 updates many rates and annexes; those who travel on Defence business, post to remote or high-cost centres, or claim per diem will see different rates (e.g. s 4.5.9, s 7.5.24 and Annex 9.5.A/B).

• Defence payroll and personnel administrators. PMKeyS entries must reflect resident family and recognised other persons, payroll systems must incorporate new meal and accommodation rates, and travel-payment workflows must account for changes such as 26 fortnightly instalments (7.8.46.1 substitutions).

The Determination imposes specific duties and confers rights in the text; the primary operative duties and rights are administrative entitlement mechanics rather than criminal obligations:

• Right to donate recreation leave: A donor member has the right to donate recreation leave credits to a receiving member subject to CDF satisfaction and conditions (s 5.4.50(1)). The right is not absolute; the CDF must be satisfied the donor will retain at least 10 days, the credits are not purchased leave, and neither party is expected to cease continuous full-time service within six months (5.4.50(1)(a)-(c)).

• Duty to apply with form and notice: A donor must submit an approved form at least four weeks before the requested donation date (5.4.50(2)). The leave must be donated in whole days (5.4.50(3)). On the day of donation the donor’s and recipient’s balances are adjusted (5.4.50(4)(a)-(b)).

• Duty to maintain records (implicit): The instrument requires PMKeyS listings for eligible dependants and recognised other persons (8.9.2A(b)(i)), and registration for the family health program (8.9.2A(b)(ii)); these impose a record-keeping and registration duty on members and administrators.

• Right to family health program coverage for recognised other persons: A member whose recognised other person is listed on PMKeyS and registered for the family health program gains the rights of an eligible dependant (8.9.2A). The transitional clause 2 provides a temporary retroactive position for registrations between 4 July and 4 August 2024.

• Duty on CDF to exercise discretion: Several provisions are expressly conditional on the CDF’s satisfaction, placing a duty on the CDF (or delegated authority) to make fact-based decisions under the Determination (for example 5.4.50, 5.5.15.2, 7.7.19.3).

• Right to education assistance limited by formula and benchmarks: Members with children overseas are entitled to tuition assistance but subject to caps, benchmark comparisons and formulas (15.6.10(1)-(2)). For example where a benchmark school exists the member receives the lesser of the school’s compulsory tuition and the benchmark compulsory tuition (15.6.10(1)(a)).

• Right to defined travel and meal allowances: The instrument replaces tables that define per-meal and per-day meal allowances (s 4.5.9; s 7.5.24 tables), per-location daily rates by rank (Annex 9.5.A Part 1), accommodation condition rates (Annex 9.5.B Part 2) and incidentals (Annex 9.5.A Part 4). These are statutory entitlements within the Conditions of service, enforceable administratively.

The Determination itself is an administrative instrument made under s 58B of the Defence Act 1903. It prescribes entitlements, discretionary decision points and administrative processes; it does not introduce express criminal penalties or specify civil sanctions within the text provided. Enforcement, where the instrument gives directions or conditions, will therefore be administrative and operational, implemented by Defence authorities and systems rather than by courts acting under new statutory penalties in this instrument.

Mechanisms of enforcement and administrative control include:

• Decision-making by the Chief of the Defence Force (CDF). Several provisions explicitly condition entitlements on the CDF being “satisfied” (for example s 5.4.50(1) for leave donation, s 5.5.15.2(a) for recognition of prior service following illness, s 7.7.19.3 for leave without pay exceptional reasons). In practice these are implemented by CDF delegations to delegated officers within Defence People Group and related business areas. Those decision points are the primary enforcement gate,authorisation, refusal or grant rests with the CDF or delegate.

• Administrative correctness and PMKeyS data. Eligibility for family health program coverage for recognised other persons requires that the person is “listed on PMKeyS as resident family or as a recognised other person” and “registered for the family health program” (8.9.2A(b)(i)-(ii)). Enforcement is therefore operational: if a person is not recorded correctly they will not be eligible, and claims can be rejected on that basis.

• Payroll and allowance processing. Meal and travel rate amendments, instalment changes and tuition formula calculations are enforced through payroll and travel-pay systems. Incorrect processing will either underpay or overpay members and be rectified administratively, with standard recovery or remediation mechanisms (not created by this instrument but typically part of Defence financial policy).

• Return of donated leave on cessation of continuous full-time service. Section 5.4.51 specifies that donated recreation leave credits unused by a receiving member are returned to the donor upon cessation of continuous full-time service. The mechanism is an automatic balance adjustment on cessation; enforcement will be by personnel/payroll systems.

• Transitional clause enforcement window. Schedule 7 clause 2 establishes a narrow window (registration between 4 July 2024 and 4 August 2024) where recognised other persons registered in that time are treated as eligible dependants for costs incurred in that period. Claims outside that window will be ineligible; enforcement again depends on records and claim dates.

This Determination is an instrument made under s 58B of the Defence Act 1903 and expressly amends Defence Determination 2016/19, Conditions of service. Its operation is within the Defence statutory and administrative architecture and interacts with other internal Defence provisions and systems, and indirectly with other statutes and contracts as follows:

• Defence Act 1903, s 58B: The instrument’s authority is explicit; it therefore sits within the delegated legislative framework the Defence Act permits. The CDF’s powers to determine conditions derive from that Act, and the instrument does not purport to override statute beyond the authority conferred.

• Defence Determination 2016/19 as amended: The instrument directly amends that Determination. Cross-references within the amended text matter: for example the tuition formula in section 15.6.10(2) uses the post index under s 12.3.14A , a provision in the Defence Determination which itself is part of the same amended instrument family. Changes to Annexes and indexes therefore have knock-on effects throughout the Conditions of service where those indexes are referenced.

• PMKeyS and internal personnel systems: Eligibility for family health program coverage requires being “listed on PMKeyS” (8.9.2A(b)(i)), so administrative compliance requires accurate PMKeyS entries. The Determination therefore operates via and depends on the integrity of internal personnel databases rather than independent statutory registers.

• Defence Housing Australia (DHA) arrangements: Section 7.7.19.3 states that unless another provision applies, where the CDF is satisfied a member was granted leave without pay for exceptional reasons the member “must pay Defence Housing Australia the full market rent for the accommodation.” That references the DHA contractual / administrative arrangements and interacts with obligations members have under DHA tenancy arrangements and any broader housing legislation only to the extent Defence’s contractual position requires rent payments.

• Financial and taxation interaction: The Determination updates allowance rates, tuition benefit calculations and removal cost inclusions. While the Determination sets entitlements, tax treatment of allowances and reimbursements will be governed by the Income Tax Assessment Act and ATO rulings, not this Determination. The instrument does not specify tax consequences.

• Administrative law and review: Because several clauses make entitlements conditional on the CDF’s satisfaction, decisions may be susceptible to administrative review (ordinary public law principles of reasonableness, procedural fairness) although the Determination does not itself create a specific merits review mechanism. Any judicial review interactions will follow general administrative law principles under federal jurisdiction.

The instrument itself is titled Defence Determination, Conditions of service Amendment Determination 2024 (No. 7) and records the maker (COL Kirk Lloyd, Acting Assistant Secretary, People Policy and Employment Conditions, Defence People Group) and date (28 June 2024). It amends Defence Determination 2016/19, Conditions of service through seven schedules and transitional provisions.

Mechanically, the instrument's own commencement schedule is explicit: sections 1-4 commence on the day the instrument is registered; Schedules 1-4 commence 4 July 2024; Schedule 5 commences 12 September 2024; Schedule 6 commences 10 October 2024; and Schedule 7 commences 4 July 2024. The table includes a note that column 3 information is not part of the instrument in law but may be displayed in published versions. The instrument is made under s 58B of the Defence Act 1903 and states it will amend instruments specified in the Schedules.

Within the instrument, Schedule 1 inserts Division 9 (sharing recreation leave for dual-serving couples) and updates subsection 5.4.33A.2 table; Schedule 2 revises family health program definitions adding 8.9.2A; Schedule 3 alters Annex 12.3.B post index location tables; Schedule 4 contains a package of miscellaneous amendments including salary thresholds, purchase of recreation leave, recognition of service, housing contribution calculations, leave without pay housing rent obligations, instalment counts, naming/formatting changes, and education assistance substitutions (15.6.1 and 15.6.10); Schedule 5 amends cost-of-removal to include vehicle removal assistance and travel for resident family and recognised other persons; Schedule 6 introduces comprehensive travel and meal allowance updates including multiple tables and annex replacements; and Schedule 7 introduces transitional provisions for recognised other persons.

The instrument does not include an amendment history beyond its own set of changes. It expressly amends Defence Determination 2016/19 as “in force from time to time” and provides exact textual substitutions and insertions. The instrument’s internal note signals that the commencement table relates only to the provisions as originally made and will not be amended to address later amendments. No prior amendments or prior amendment numbers are included in the text provided; the instrument labels itself "(No. 7)" reflecting an internal naming convention for 2024 amendments but does not list prior 2024 instruments. To trace the full amendment lineage of Defence Determination 2016/19, one must consult the consolidated Conditions of service as published by Defence or the Federal Register of Legislation, which are outside the text of this instrument.

The instrument contains no references to any litigation and does not record any judicial or tribunal determinations applying or interpreting its provisions. The Determination is an administrative instrument; the text does not include recorded case law, prior decisions, or litigation outcomes. Therefore, from the instrument alone there is no litigation history to cite.

Where disputes could arise,examples include a CDF decision refusing a leave donation under s 5.4.50, a claim denial for a recognised other person’s family health cost under 8.9.2A, or disagreement over the application of the tuition formula in 15.6.10,those would proceed through Defence administrative review channels and potentially judicial review in federal courts under general administrative law principles. The instrument does not itself create or modify judicial remedies, nor does it specify internal appeal pathways or merits review processes. Any litigation record will emerge from post-implementation disputes and will be found in public law case reports, tribunal records or court judgments outside this instrument.

Practitioners and researchers seeking litigation history must therefore look to subsequent administrative decisions and any judicial review proceedings brought after these amendments commence. The instrument’s text does indicate likely areas where disputes may appear,discretionary CDF decisions, PMKeyS data-based eligibility determinations, and formulaic calculations using post indices and exchange rates,so monitoring administrative decisions in those domains will reveal any nascent litigation trends.

Several practical traps and implementation friction points are embedded in the text; these are concrete, textual “gotchas” to watch for:

• CDF discretion is central. Multiple entitlements depend on the CDF being “satisfied” (5.4.50, 5.5.15.2, 7.7.19.3). That means a member’s formal entitlement can be frustrated by a negative discretionary finding. The Determination does not specify the standards or processes for the CDF to reach satisfaction, which creates potential procedural ambiguity and administrative risk. Members and commanders should document decision bases where CDF satisfaction is sought.

• Donated leave constraints and timing. Donated recreation leave must be whole days, applied for on an approved form at least four weeks in advance, and the donor must retain at least 10 days post-donation (5.4.50(2)-(4), 5.4.50(1)(a)). The four-week window and whole-day restriction limit last-minute or fractional-day flexibility; donors must plan well in advance and budget leave holdings. Donors cannot donate purchased leave credits (5.4.50(1)(b)), so members who have purchased extra leave cannot transfer those.

• 12‑month donation cooling-off and cessation-return mechanics. The Division does not apply if there has been less than 12 months since the last donation by the member or partner (5.4.49(b)). Additionally, if the receiving member ceases continuous full-time service, any unused donated credits are returned to the donor (5.4.51). The 12-month restriction and reversion clause reduce possibilities for temporary career-term externalities but require accurate tracking of prior donations and cessation events.

• PMKeyS dependency for recognised other persons. Eligibility for family health program coverage requires PMKeyS listing and registration (8.9.2A(b)(i)-(ii)). Where PMKeyS entries are incomplete or delayed, coverage and reimbursement will be denied. Transitional clause 2 covers a limited registration window (4 July-4 August 2024), but lack of PMKeyS evidence outside that window may block claims.

• Tuition formula complexity. The tuition benefit cap for certain cases is a formula: AUD 36,336 × (A/100 × B) where A is the post index under s 12.3.14A as at 1 July the prior year and B is the exchange rate used to pay the member’s salary as at that date (15.6.10(2)). Users must know which post index applies and the precise exchange rate used for salary payment and must apply last-year’s 1 July figures when processing benefits. Payroll and allowances systems must be updated to calculate this correctly; mistakes could materially under- or over-pay tuition assistance.

Operational compliance requires coordinated activity across personnel, payroll, travel and legal teams. Concrete, source-grounded steps derived from the Determination are:

1. Update PMKeyS records and registration workflows:

   • Ensure PMKeyS can record “recognised other persons” and resident family, and that registration for the ADF family health program is visible for claims (see 8.9.2A(b)(i)-(ii)). Capture the person’s status and date of PMKeyS entry to support claims and transitional coverage (Schedule 7 clause 2).

2. Publish and make available the approved leave-donation form:

   • Create or update the “approved form” required under s 5.4.50(2) and integrate it into leave management processes. Ensure the form enforces the four-week minimum lead time and requires confirmation that the donor will retain at least 10 days post-donation and that donated credits are not purchased leave.

3. Create a timeline and audit trail for donations:

   • Record dates of donations in member files and PMKeyS to enforce the 12-month cooling period (5.4.49(b)) and to ensure reversion of unused credits on cessation of continuous full-time service (5.4.51). Build automated checks to block donations where the donor or partner has six months or less until ceasing continuous full-time service (5.4.49(a)).

4. Configure decision workflows for CDF satisfaction:

   • Where the Determination requires the CDF to be “satisfied” (for example 5.4.50(1), 5.5.15.2(a), 7.7.19.3), establish delegated authorisation levels, decision templates documenting facts and reasons, and internal review steps. Specify timelines for decisions to avoid undue delay.

5. Update payroll and allowances systems:

   • Implement the new meal rates and annex tables effective 10 October 2024 (Schedule 6), ensuring systems apply the correct rate by date and location (s 4.5.9, s 7.5.24, Annex 9.5.A/B). Adjust incidentals to $23.95 and per-location daily rates in Annex 9.5.A Part 1. Change instalment schedules to 26 fortnightly instalments where required (7.8.46.1 substitutions).

6. Apply tuition formula rules consistently:

   • For overseas tuition caps under 15.6.10(2), code the formula AUD 36,336 × (A/100 × B). Ensure A (post index under s 12.3.14A) is the index used as at 1 July in the year prior to processing, and B is the exchange rate used to pay the member’s salary as at 1 July in the year prior. Maintain a documented source for both A and B values for auditability.