Defence Determination, Conditions of Service Amendment (Long-term overseas posting conditions) Determination 2019 (No. 12)

The core concepts introduced or refined by this determination are the definition of salary for overseas allowance purposes, the cost of living adjustment (COLA) calculation, the cost of posting allowance (COPA) with its new floor and ceiling, and the travel benefits for extended or consecutive long-term postings. Salary is now defined exclusively by reference to DFRT Determination No. 2 of 2017, Salaries, and is distinct from the broader set of payments that might be included in the COLA step. For COLA, the base is fortnightly salary plus only two specific additions: higher duties allowance and salary non-reduction supplement. All other allowances are excluded. The adjustment is then reduced by PAYG tax and any Commonwealth levies, meaning the amount paid is net of tax. This contrasts with the COPA, which is a percentage of salary including the salary non-reduction supplement but is not further reduced by tax. The COPA rate takes effect as a percentage of the individual member’s salary, but is then subject to a minimum amount and a maximum amount. The minimum is set as 28% (accompanied) or 18% (unaccompanied) of the salary of a Major on pay grade 1, increment O4-0. That means a member whose rank attracts a lower salary than a Major (for example, a Lieutenant or a private) will nonetheless receive the allowance calculated at the Major rate floor. Conversely, a member whose salary exceeds that of a Colonel on pay grade 10, increment O6-1 will receive no more than the capped amount, which is 28% or 18% of that Colonel salary. The floor and cap are thus fixed dollar amounts that move only if the underlying DFRT salary determination changes. The concept of accompanied and unaccompanied member is retained, affecting both the percentage rate and the level of the floor/cap. The dual Commonwealth benefit rule under section 15.2A.9 continues to apply, meaning that if the member receives another Commonwealth benefit for the same purpose the COPA may be reduced. The travel provisions introduce the concept of allowable travel cost and business class travel, with eligibility windows tied to the expected end date of the first posting or the start of the second posting. The term “long-term posting overseas” is not newly defined in this amendment, but the principal determination defines it elsewhere; this amendment assumes that definition. The term “salary non-reduction provision” appears in the transitional schedule; it refers to an arrangement under the principal determination that prevents a member’s salary from dropping when they move to a new posting. The transitional provision applies to members who were covered by such a provision between 1 July 2017 and 16 May 2019 and were also eligible for COLA and COPA. It creates a right to a top-up amount, effectively backdating the effect of the new salary definition and rate structure for those members. This is not a general amnesty for all members, only those already protected by a salary non-reduction provision.

The primary group affected is Australian Defence Force members who are on long-term overseas postings or who move between such postings. This includes members currently posted overseas as at 16 May 2019 and those who will be posted later. The changes to the COLA calculation and COPA rate structure affect every member receiving these allowances. Members whose salary includes significant amounts of higher duties allowance or salary non-reduction supplement will see those amounts pulled into the COLA base; previously they may have been excluded or defined differently. Members who were receiving the COPA at a straight 28% or 18% of their full salary without a cap might now find the allowance capped if their salary exceeds the Colonel level. Conversely, junior members whose salary is below Major level will benefit from the floor, receiving the allowance calculated at the Major rate rather than their own lower rate. Members on salary non-reduction provisions between 1 July 2017 and 16 May 2019 are uniquely affected by the transitional schedule, which creates a retrospective payment obligation. For them, the new rules are effectively backdated, and they will receive a catch-up amount for the COLA and COPA that should have been paid if the new rules had always applied. This group is likely a subset of all members who were overseas during that period, specifically those whose salary was protected by a non-reduction provision. Dependants of members are affected by the new travel benefits. When a posting is extended for 12 months or more, dependants are eligible for return travel to Australia within the defined window. When a member receives a second consecutive long-term posting overseas, dependants are eligible for business class travel from the first location to Australia and then to the second location. Dependants also benefit from section 15.3.40 if they join the member after an extension or second posting order, including reimbursement if they already paid their own way. Defence administrators and decision-makers within the People Policy and Employment Conditions branch are directly affected. They must reprogram allowance calculation systems to use the new salary definition, the revised COLA step (including only specific allowances and deducting tax), and the new COPA floor and cap percentages tied to specific rank increments. They must also identify all members covered by the transitional provision and calculate back-payments covering the period from 1 July 2017 to 16 May 2019. The CDF and delegated officers will need to process requests for travel outside the standard eligibility windows using the criteria in sections 15.3.38(4) and 15.3.39(8), which involves assessing reasons, welfare, work commitments and financial implications. Finance areas must account for the additional liability from back-payments and the ongoing effect of caps and floors on allowance expenditure.

Members have a right to receive COLA and COPA calculated under the new rules. For COLA, the right is to an amount derived from fortnightly salary plus higher duties allowance and salary non-reduction supplement, minus PAYG and levies. For COPA, the right is to the applicable percentage of salary (including salary non-reduction supplement), subject to the minimum and maximum amounts set by reference to Major and Colonel salaries. That right is qualified by the dual Commonwealth benefit rule, which may reduce the allowance if another Commonwealth benefit covers similar costs. Members on salary non-reduction provisions between 1 July 2017 and 16 May 2019 have a right to a top-up payment equal to the difference between what they actually received in COLA and COPA and what they would have received had the new rules been in effect from 1 July 2017. The right to travel benefits under the new Division 7 is conditional. For extension travel under section 15.3.38, the right arises only if the extension is for 12 months or more and the travel is taken within the three-month window around the original expected end date. The member must be on approved leave during any absence from duty, though dependants are not subject to that condition. The right does not include rest periods or accommodation, meal and incidental costs. The CDF may approve travel outside the window, but that is discretionary, not a right. For second posting travel under section 15.3.39, the right applies only if the second posting is for at least 12 months. The member and dependants are entitled to business class travel between the first and second locations via Australia, but capped at the cost of travel to and from the member’s normal Australian home location. The member must be on approved leave during absence; dependants travelling separately do not need to be on leave. The member’s travel must be taken after the first posting ends and before the second starts; dependants have different windows. No accommodation or meal costs are covered, though rest periods apply for travel from Australia to the second location. The member may use the travel benefit only within those windows, with a discretionary CDF override available for the member’s timing but not expressly for dependants. For dependant travel under section 15.3.40, the right arises when the member is on an unaccompanied long-term posting or short-term duty overseas, and that posting or duty is extended or the member receives a second long-term posting order, and the member becomes eligible to be accompanied. The right is to either payment of travel costs for dependants to join the member, or reimbursement if the dependants have already travelled at personal cost, up to the amount that would have been payable under Chapter 14 Part 4 Division 4. The duty of the member is to ensure they are on approved leave during any absence when travelling, unless they are a dependant travelling separately. The duty of Defence is to pay the correct allowances, process back-payments for eligible members, and administer the travel benefits in accordance with the conditions. The CDF has a duty when approving out-of-period travel to have regard to the four specified factors: reason for not travelling within the period, welfare, work commitments over six months, and financial implications.

This determination does not create criminal offences or civil penalties. It is a conditions-of-service determination made under section 58B of the Defence Act 1903, and enforcement occurs through administrative and disciplinary mechanisms within the Australian Defence Force. If a member receives an overpayment of COLA, COPA, or travel benefits due to incorrect calculation or misrepresentation, the overpayment is recoverable as a debt due to the Commonwealth. The determination does not set out recovery procedures, but the principal determination likely contains provisions for recovery, and general Commonwealth law applies. Under the Defence Force Discipline Act 1982, a member who knowingly provides false information to obtain a benefit could face disciplinary action including charges for conduct prejudicial to good order and discipline or for making a false statement. There is no private right of action for members or dependants under this instrument; disputes over entitlement would be resolved through internal grievance mechanisms, administrative review, or potentially application to the Administrative Appeals Tribunal for review of decisions made under the determination. The transitional schedule creates a right to additional payments, but there is no enforcement mechanism stated. If Defence fails to calculate the back-payment correctly, the member would need to raise a grievance. Audits of allowance payments by the Australian National Audit Office or internal audit could reveal systemic issues, leading to remedial action rather than penalties. The dual Commonwealth benefit rule under section 15.2A.9 implies that if a member receives another Commonwealth benefit for the same purpose, the allowance may be reduced; enforcement would require disclosure by the member and verification by Defence. No penalty is specified for nondisclosure, but again the general disciplinary framework applies. The CDF’s discretion to approve travel outside windows is not subject to any statutory penalty for erroneous exercise; it would be reviewable on administrative law grounds if improperly exercised. In summary, the determination relies on existing enforcement mechanisms within the Defence organisation and the broader legal framework for Commonwealth payments. The most significant financial consequence for a member would be recovery of overpayments, not a fine or imprisonment.

The determination is made under section 58B of the Defence Act 1903, which empowers the Minister or an authorised delegate to make determinations regarding the conditions of service of members of the Australian Defence Force. That power is subordinate to the Act itself and must be exercised within its scope. The determination incorporates by reference DFRT Determination No. 2 of 2017, Salaries, which sets the base salary amounts for ranks and increments. Any amendment to that DFRT determination would automatically affect the COPA minimum and maximum amounts because those are expressed as percentages of specific rank salaries within that DFRT instrument. The principal determination, Defence Determination 2016/19, Conditions of service, is the host instrument. This amendment only changes specific sections (1.3.69A, 3.5.89, 15.2A.12.2, 15.2A.15, and Chapter 15 Part 3 Division 7). The rest of the principal determination continues to apply, including definitions of long-term posting overseas, hardship location, and other conditions. The travel provisions cross-reference other parts: excess baggage in sections 16.4.16 and 14.4.11, rest periods in Chapter 14 Part 4 Division 3, and travel costs in Chapter 14 Part 4 Division 4. Those references must be read consistently with the new amendments. The dual Commonwealth benefit rule in section 15.2A.9 is specifically preserved, meaning that if the member receives another benefit from the Commonwealth for the same purpose as the COPA, the allowance may be reduced. This could interact with other Defence payments or possibly with Department of Veterans’ Affairs payments, though the determination does not specify. Tax laws, including the Income Tax Assessment Act 1997 and the A New Tax System (Family Assistance) Act 1999, are relevant because the COLA calculation explicitly deducts PAYG tax and levies. The COPA, by not deducting tax, may be taxable income in the member’s hands depending on its characterisation. The transitional schedule interacts with the version of the principal determination that was in force between 1 July 2017 and 16 May 2019. It effectively gives retrospective effect to the new salary definition and COPA rate structure for a specific class of members. This retrospective operation does not create a new tax liability because it merely adjusts the amount of a non-taxable (or taxable) allowance. The Defence Act does not generally prohibit retrospective determinations, but such provisions must be clearly authorised. The determination does not interact with the Fair Work Act 2009 because ADF members are excluded from that Act’s coverage. State and territory laws on employment conditions do not apply. The Administrative Decisions (Judicial Review) Act 1977 may apply to review decisions made under the determination, such as CDF refusals to approve out-of-period travel, though some Defence decisions are exempt.

This instrument is itself an amendment, Defence Determination, Conditions of Service Amendment (Long-term overseas posting conditions) Determination 2019 (No. 12). It amends Defence Determination 2016/19, Conditions of service. The source does not list previous amendments to that principal determination, but the numbering (No. 12) indicates that at least 11 other amendment determinations were made in 2019 before this one. The principal determination was originally made in 2016 and has been amended multiple times since. This particular amendment focuses exclusively on overseas posting conditions, specifically the cost of living adjustment, cost of posting allowance, and travel provisions for extended or consecutive postings. Schedule 1 repeals the previous definition of salary in section 3.5.89 and inserts a new definition in section 1.3.69A. It also repeals and replaces subsection 15.2A.12.2 Step 1 and section 15.2A.15 entirely. Schedule 2 repeals and replaces the whole of Chapter 15 Part 3 Division 7. Schedule 3 is entirely new, inserting transitional rules for the period 1 July 2017 to commencement. The instrument is dated 13 May 2019 and commences on 16 May 2019. There is no indication in the source of any subsequent amendments to this instrument. The history shows a shift from a flat percentage COPA to one with floors and caps, and from a broader COLA calculation to one that explicitly excludes most allowances. The travel provisions were also rewritten to provide clearer windows and discretionary powers for the CDF. No equivalent provisions are shown for the period before 2016; the principal determination itself likely replaced earlier determinations. For the purpose of this deep dive, the amendment history is limited to what the source reveals: the instrument changes specific sections of an existing determination.

The source does not mention any litigation, and there is no publicly recorded litigation specifically concerning this amendment determination as at the time of writing. Because it is a subordinate instrument that deals with detailed conditions of service for ADF members rather than creating private rights, challenges to its validity or application would be unusual. Any legal challenge would likely be based on an argument that the delegate exceeded the power under section 58B of the Defence Act 1903, or that the determination is inconsistent with the Act itself. For example, if the transitional provision were argued to be an unauthorised retrospective imposition or granting of a benefit, a court might review it. Alternatively, a member affected by an adverse decision under the determination (such as a refusal of travel outside the window) could seek judicial review of that decision under the Administrative Decisions (Judicial Review) Act 1977, challenging whether the CDF properly considered the mandatory criteria. Such applications would be rare and would be heard in the Federal Court or the Federal Circuit Court. The instrument’s subject matter - allowances and travel for military postings - is not a typical area for litigation because members generally resolve disputes through internal Defence grievance procedures. The Defence Force Ombudsman may also receive complaints. There is no mention of any pending or decided cases in the source. It is therefore accurate to say that there is no litigation history recorded in or referenced by the instrument. This does not mean no dispute has ever arisen; it means the source does not provide that information and we cannot invent it. For a practising lawyer, the absence of litigation history does not mean the instrument is immune to challenge, but it suggests that the provisions have not been judicially tested.

Several aspects of this determination could trap unwary members or administrators. The COLA calculation in Step 1 is narrower than many might expect. It takes fortnightly salary plus higher duties allowance and salary non-reduction supplement, then subtracts PAYG and levies. Importantly, the note says “no other allowances are to be included.” That means that other common allowances such as rent allowance, remote area allowance, or any specialist skills allowance are not part of the COLA base. A member who assumes their full gross income is the base will get an incorrect figure. The COPA rate of 28% or 18% of salary looks straightforward, but the minimum and maximum amounts are tied to specific rank increments: Major O4-0 and Colonel O6-1. If the DFRT salary determination is amended to change those increments, the floor and cap move. But if a member is promoted or changes pay grade, their own COPA may jump or be capped differently. The floor for an unaccompanied member is 18% of Major’s salary; if a private’s salary is below that, they still get the Major-based floor - a benefit. But a Lieutenant Colonel near the top of the pay scale may find that 28% of their salary exceeds the Colonel cap, so they get less than the formula would otherwise produce. The transitional provision is limited to members who were on a salary non-reduction provision between 1 July 2017 and 16 May 2019. This is a narrow class; members who were on long-term overseas posting but not on such a provision during that period get no back-payment. The eligibility for the transitional top-up is not automatic; the member must have been eligible for COLA and COPA and on a salary non-reduction provision concurrently. Administrators must identify each qualifying member; missing anyone could lead to underpayment claims. The travel eligibility windows are tight. For extension travel, the window is only three months before to three months after the expected end date. If the member does not take the travel within that six-month window, they lose the benefit unless the CDF approves. The CDF approval criteria include “financial implications” which could be used to refuse costly travel. For second posting travel, the member’s window is after the first posting ends and before the second starts; that could be a very short period if postings overlap or back-to-back. Dependants have separate windows that are defined relative to the end of the first posting and start of the second, and they may not align with the member’s window. Section 15.3.40 allows reimbursement only up to the maximum that would have been payable under Chapter 14 Part 4 Division 4; if the dependants travelled first class, they may not get full reimbursement. The new travel provisions explicitly exclude accommodation, meal and incidental costs for all three types of travel. Members expecting per diem or hotel payments during the travel will be disappointed. Only rest periods are provided for the Australia-to-second-location leg under section 15.3.39(9). The dual Commonwealth benefit rule is another trap: a member receiving a separate housing benefit or similar from another Commonwealth source may see their COPA reduced. That rule is not defined in this amendment, so it remains as set out in the principal determination. Finally, the CDF’s discretions to approve travel outside windows are broad. They require consideration of the reason, welfare, work commitments and financial implications, but there is no hierarchy or weighting; a decision to refuse may be hard to challenge, and members should not assume an automatic approval.

For Defence People Group and delegated administrators, compliance requires systematic implementation. First, update the payroll and allowance calculation systems to apply the new salary definition from section 1.3.69A, which means linking the reference to DFRT Determination No. 2 of 2017, rather than the previous definition. Second, reprogram the COLA calculation for all members on long-term overseas posting. The base must be fortnightly salary plus higher duties allowance and salary non-reduction supplement only; subtract PAYG and any current Commonwealth levies. Ensure that no other allowances (e.g., field allowance, flying allowance) are inadvertently included. Third, apply the new COPA rate structure. For each member, determine whether they are accompanied or unaccompanied, calculate 28% or 18% of their salary (including salary non-reduction supplement), and then compare with the minimum amount (28% or 18% of Major O4-0 salary) and maximum amount (28% or 18% of Colonel O6-1 salary) as set out in section 15.2A.15. Pay the middle amount. Update the system to fetch the current Major and Colonel salary figures from the DFRT determination. The minimum and maximum are fixed percentages of those salaries, so they change automatically when the DFRT salaries are updated. Administrators should also apply the dual Commonwealth benefit rule if applicable. For the transitional schedule, identify all members who were on a salary non-reduction provision between 1 July 2017 and 16 May 2019 and who were also eligible for COLA and COPA during that period. This may require historical payroll data. Calculate the difference between what they actually received and what they would have received had the new COLA Step 1 and the new COPA rate (with floors and caps) applied from 1 July 2017. Pay that difference as a lump sum. Note that the transitional entitlement is separate from ongoing payments; it does not affect future calculations. For travel claims, administrators must set up new processes to assess eligibility under the three new sections. For extension travel (section 15.3.38), verify that the posting was extended for 12 months or more. Confirm that the travel is taken within the window (three months before to three months after the expected end date) or that CDF approval has been obtained. Check that the member is on approved leave for the period of absence from duty, unless the applicant is a dependant travelling alone. Ensure that no rest periods or accommodation/meal costs are paid; only the allowable travel cost (return travel to the Australian home location, or equivalent value elsewhere) is provided. For second posting travel (section 15.3.39), verify that the second posting is for at least 12 months. Ensure that business class travel is used. Cap the cost at the cost of travel to and from the member’s normal Australian home location. Confirm that the member is on approved leave during absence. Apply the correct time windows for member and dependants. Do not pay accommodation or meal costs; rest periods apply only for the Australia-to-second-location leg. For dependant travel under section 15.3.40, confirm that the member was on an unaccompanied posting or short-term duty overseas and that the posting was extended or a second posting order issued, and that the member is now eligible to be accompanied. Pay travel costs under Chapter 14 Part 4 Division 4 or reimburse up to that maximum if dependants already travelled at personal cost. For all travel, maintain records of eligibility checks, approved leave, and any CDF approvals, including the reasons considered under the criteria. Members should review their entitlement letters and payslips to ensure the COLA and COPA calculations are correct. If a member believes they qualify for the transitional top-up but have not received it, they should contact their administrative unit. For travel, members should plan within the windows and apply for CDF approval well in advance if they cannot meet the window. Keep copies of posting orders, extension notices, and leave approvals. Members should also be aware that any dual Commonwealth benefit must be declared to avoid overpayment.