Defence Determination, Conditions of service Amendment (Parental leave) Determination 2021 (No. 12)

Parental leave is defined broadly as the sum of paid parental leave, special paid parental leave, and unpaid parental leave. A member cannot be on more than one type simultaneously, and the leave cannot be accrued (note 2 to the definition in section 5.7.4).

Dual serving parent is a definition critical to the cap. It applies where both parents are members of the Defence Force. For such couples, the combined entitlement to paid maternity leave, paid parental leave, and special paid parental leave is limited to 18 weeks total across both members (s 5.7.4C). This is a significant restriction not present in the earlier provisions, which allowed each parent to access separate maternity or parental leave entitlements. It reduces the total paid leave for a dual serving parent family from potentially many weeks to a hard 18 week maximum.

Special paid parental leave is the successor to additional paid parental leave. It is only available to a member who (a) is not eligible for paid maternity leave, (b) will be the primary caregiver for the duration of the leave, and (c) has completed qualifying service (s 5.7.6A). The child must be a dependant and have lived with the member for less than 66 weeks. Critically, this leave is unavailable if the child’s other parent is taking any form of parental leave (paid, unpaid, or similar leave from another employer) at the same time (s 5.7.6B). This prevents double dipping. For dual serving parents, special paid parental leave is only available if the other parent is on maternity leave only, unless the Chief of the Defence Force (CDF) is satisfied the other parent cannot provide care due to disability, illness, or court removal (s 5.7.6C). For non dual serving parents, CDF may grant up to 10 weeks having regard to the child’s age, special needs, how long the child has lived with the member, and any compelling reasons (s 5.7.6D).

Flexible service determination members have special rules: leave is only taken on days in their pattern of service, and a non working period does not break a continuous period of leave (s 5.7.4D).

The purpose statement (s 5.7.1) is very short: "Parental leave is provided to a member to care for and engage with their child after it has joined their family on a permanent basis." That language is less expositional than typical public sector leave provisions, and notably does not use the language of "primary carer" or "bonding" - it says "care for and engage with". The precise legal effect is minimal but it signals that the leave is tied to the child's permanent joining of the family, not for pregnancy related health reasons (which is covered by other leave).

The determination directly affects all Australian Defence Force members who become parents through birth, adoption, or permanent care orders. Two categories face particular restrictions:

Dual serving parents (both members) are affected more than any other group. Their combined paid leave (maternity, parental, special) is capped at 18 weeks per child. Previously, the determination did not contain an express combined cap (the old ss 5.7.9 and 5.7.10 were omitted by items 9 and 10). Under the old rules, each member could separately access parental leave, potentially giving a dual serving couple up to 66 weeks each of unpaid leave plus paid maternity and additional paid parental leave. The new determination dramatically reduces the paid leave available to such couples. This may impose financial costs on military families and could affect retention of service men and women who plan to have children.

Members with a flexible service determination are affected by the rule that leave is only taken on days in their pattern of service (s 5.7.4D). For part time or irregular service members, this could mean their 66 week period stretches over a longer calendar period because not each day falls on a service day. The determination does not reduce the maximum number of leave days; it merely sets the condition that only days in the pattern count. That could be administrative tricky for leave planners.

Members with a partner who works for the Commonwealth under the Maternity Leave (Commonwealth Employees) Act 1973 also face a reduction: the partner's maternity leave under that Act counts towards the member's 66 week cap (s 5.7.4B(2)(c)). This is a novel capture of external leave entitlements into the Defence member's cap. It means that a member whose civilian partner works for the Commonwealth and takes maternity leave will have their own parental leave cap reduced by the amount of that leave. The policy rationale might be to avoid duplication of paid leave within the same family, but it imposes a cost on the member rather than on the partner.

CDF acquires new discretionary powers under ss 5.7.6C(2) and 5.7.6D(2) to approve special paid parental leave in circumstances where the other parent cannot care for the child. This discretion is not confined by detailed criteria, only factors to have regard to. It creates a risk of inconsistent decisions across service branches and may lead to grievance applications if denied.

Service administrators and pay offices must now track combined leave taken by dual serving parents, maternity leave under Part 6 and under the Commonwealth Employees Act, and ensure the 66 week cap is applied across multiple sources. The form requirement (s 5.7.4A) imposes a process that may catch members who do not use the approved form; failure to use the form could ground a refusal of leave.

The instrument sets out both rights and limitations on members.

Right to apply: A member may apply for parental leave using the approved form (s 5.7.4A). This is the only way to initiate the entitlement. The form is not described further, so commanders and HR will need to issue and accept it.

Right to 66 weeks maximum: A member may take up to 66 weeks of parental leave, but this is reduced by any parental leave taken by the member's partner under Part 7, any maternity leave under Part 6, and any maternity leave of the partner under the Maternity Leave (Commonwealth Employees) Act 1973 (s 5.7.4B). The reduction operates against the member, not the partner, so if a partner takes 2 weeks of parental leave, the member's cap drops to 64 weeks. This is a perverse incentive against the other parent taking leave if one parent wants to maximise their own leave.

Limitation for multiple children: If a member becomes a parent of more than one child from the same birth, adoption, or permanent care placement, they are eligible for only one benefit in respect of those children (s 5.7.4B(3)). So twins do not get double leave. That is consistent with many parental leave schemes, but it is explicit here.

Dual serving parent combined cap: Dual serving parents are not eligible for more than a combined total of 18 weeks of paid maternity leave, paid parental leave, and special paid parental leave (s 5.7.4C). This overrides any individual entitlement. It does not address how the 18 weeks should be split between the two members, leaving that to administrative arrangement. The cap is on "eligibility", not "take", so it prohibits both from taking more than 18 weeks in total.

Special paid parental leave conditions: To access special paid parental leave, the member must be the primary caregiver for the duration, have completed qualifying service, and the child must have lived with them for less than 66 weeks. The leave must be taken within 14 weeks of birth or placement, in a single continuous period, and can be taken at full or half pay equivalent (s 5.7.6E). It counts as effective service (s 5.7.6F), meaning it accrues for pay and seniority.

Flexible service members: Their leave is only counted on days in their pattern of service, and non working periods do not break continuous leave (s 5.7.4D). This preserves continuity for part time members.

The instrument creates no right to choose the timing of leave outside the 14 week window for special paid leave; for paid and unpaid leave generally, the 66 week window applies (ss 5.7.4E, 5.7.6G).

The determination itself does not create criminal or civil penalties. It is a subordinate instrument under the Defence Act 1903, and non compliance by a member would be dealt with under the Defence Force Discipline Act 1982 or administrative action. Key enforcement points:

Failure to use approved form (s 5.7.4A) could lead to a denial of the leave application. If a member takes leave without approval, they may be absent without leave, which is an offence under DFDA s 25. The determination makes the form compulsory, so a member who does not apply (or whose application is defective) has no entitlement to take the leave.

Exceeding the 66 week cap or the 18 week dual serving cap may constitute obtaining a benefit to which the member is not entitled. Overpayment of salary could be recovered as a debt under the Public Governance, Performance and Accountability Act 2013. The determination says "eligible for" not "entitled to take", but if a member takes leave beyond the cap, it would be invalid leave. The member could be ordered to repay pay received for periods of unauthorised absence.

False statements in the approved form or to CDF regarding eligibility (e.g., claiming the other parent is unavailable for care when they are not) could amount to fraud or giving false information to a service superior, chargeable under DFDA.

CDF’s discretion under ss 5.7.6C(2) and 5.7.6D is not reviewable on the merits under this instrument, but could be challenged under administrative law (ADJR Act or constitutional writs) if exercised unreasonably or on irrelevant grounds. However, the determination does not create a statutory right of review within the Defence administrative system.

Savings and transitionals (Schedule 2) protect pre-commencement applications and approvals. A member who applied before 8 July 2021 for additional paid parental leave will have their application decided under the old law, and a person approved before that date will have the old s 5.7.6 apply as if the amendment had not happened. This is fair but may create two regimes running in parallel for a period.

Defence Act 1903, s 58B: The instrument is made under this provision, which authorises the Minister or delegate to make determinations about conditions of service. The determination has the force of law and prevails over inconsistent Defence policy or subordinate instructions, though it is subject to the Act itself.

Maternity Leave (Commonwealth Employees) Act 1973: This Act provides paid maternity leave to Commonwealth civilian employees. The determination at s 5.7.4B(2)(c) expressly takes into account maternity leave taken by the member's partner under that Act for the purpose of reducing the member's parental leave cap. This is an unusual cross capture. It means that a member whose partner works as a Commonwealth employee will have their own 66 week cap reduced by the weeks of maternity leave the partner takes. For example, if the partner takes 14 weeks of paid maternity leave under the 1973 Act, the member's maximum parental leave becomes 52 weeks (66 - 14). This interaction is not mutual the other way because the civilian partner is not subject to the Defence Determination. It introduces complexity and may discourage civilian partners from taking their full entitlement if it would reduce their Defence partner's leave.

Part 6 Maternity Leave of the Defence Determination 2016/19: The new parental leave cap counts maternity leave taken by the member or their partner under Part 6. So maternity leave and parental leave are partly fungible for cap purposes.

Defence Force Discipline Act 1982: As noted, unauthorised absence or false statements would be dealt with under that Act. The determination does not create new offences but sets conditions that affect disciplinary liability.

Fair Work Act 2009: This Act provides parental leave entitlements for many Australian employees, but Defence members are excluded as they are not employees under that Act. The Defence Determination is the sole source of these entitlements for members. There is no interaction with the National Employment Standards.

Public Governance, Performance and Accountability Act 2013: Overpayments of salary due to exceeding caps would be recoverable under s 77 of that Act.

Permanent care orders: The determination accepts permanent care orders issued by a court or statutory authority as equivalent to birth or adoption for qualifying events. This interacts with state and territory child protection legislation, but the determination does not define "permanent care order", leaving that to the issuing authority.

Savings provisions under Schedule 2 preserve pre-commencement law for certain applications, meaning two versions of Part 7 operate for different cohorts until all pre-commencement decisions are exhausted.

This instrument is itself an amending determination. It does not contain its own history but it is a single instrument that takes effect from 8 July 2021. It amends the Defence Determination 2016/19, Conditions of service, which is a living instrument that has been amended many times. The amendments here are specified in Schedule 1, items 1-11, which are the only changes made. There is no other amendment history within the source. However, the instrument replaces the entire structure of parental leave provisions.

It omits the old Part 7 title and inserts a new one; it removes and substitutes ss 5.7.1 (purpose), 5.7.2 (application - omitted entirely), 5.7.4 (definitions - substitutes new definitions), and inserts new ss 5.7.4A-5.7.6G. It also omits ss 5.7.8 (flexible service determination), 5.7.9 (dual serving couples), 5.7.10 (limit on amount), and 5.7.11 (how to apply), consolidating those matters into the new divisions. Section 5.7.7 (unpaid parental leave) is amended by adding the word "effective" before "service".

The instrument does not mention any prior amendments to the part; it is a standalone restructure. No amending instruments are cited. The savings and transitional rules in Schedule 2 are part of the amendment history, showing that the amendments are not retrospective for applications received or decisions made before commencement.

Given that the determination is a legislative instrument registered on the Federal Register of Legislation, future amendments would appear as separate determinations. This history is incomplete but the source does not require us to speculate.

The source instrument contains no reference to any court cases. It is a determination made in 2021, and as of the knowledge cut off of this analysis, there is no reported litigation specifically regarding these parental leave amendments. However, some potential grounds for challenge are worth noting:

Administrative law challenges could arise from CDF decisions under ss 5.7.6C(2) and 5.7.6D. The discretion to grant special paid parental leave when the other parent cannot care for the child is broad but not completely unfettered. A member could seek judicial review if CDF denies leave on irrelevant grounds or without considering the listed factors. The determination lists factors such as the age of the child and special needs, but does not require CDF to decide within any time frame. A challenge might argue that the discretion is exercised unreasonably or that the member was denied procedural fairness.

Constitutional validity under s 51(vi) of the Constitution (defence power) is unlikely to be an issue given the determination is about service conditions. But a challenge could argue that s 5.7.4B(2)(c) (reduction of cap based on partner's maternity leave under the Commonwealth Employees Act) exceeds the regulation making power because it deals with conditions external to the Defence Force. The partner’s leave is not a condition of service of the member. A court might find it is reasonably incidental to regulating service leave, or might not. The provision is novel.

Discrimination arguments: Dual serving parents are treated more restrictively than other members. A single member married to a civilian can take the full 66 weeks, while a dual serving couple is capped at 18 weeks of paid leave. This could be argued as indirect discrimination based on marital status or perhaps gender (since women are overrepresented as dual serving parents in some roles). However, the Defence Determination is exempt from the Disability Discrimination Act 1992 and the Sex Discrimination Act 1984 by virtue of s 39 of the Defence Act 1903. Nonetheless, a challenge under implied constitutional rights (e.g., implied freedom of association or family rights) is possible but unlikely to succeed given the High Court’s narrow view of implied rights.

No cases are cited, and no known litigation has been reported as of mid-2021.

These provisions contain several traps for the unwary:

1. The approved form requirement (s 5.7.4A) is mandatory. A member who verbally requests leave or sends an informal email may not have a valid application. If they start leave without an approved form, they are absent without authority. The form is not defined in the determination; it must be issued by the Department. A member using an outdated version could be caught.

2. The 66 week cap counts the partner's leave, not just the member's. Section 5.7.4B(2)(a) reduces the member's cap by parental leave taken by the member's partner under Part 7. So if the partner takes 10 weeks of parental leave, the member's cap drops to 56 weeks. This means a member cannot plan their own leave without knowing exactly what the partner has taken. If the partner later takes additional leave, the member's cap could be retroactively breached.

3. The 66 week cap also counts the partner's maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973 if the partner is a Commonwealth employee. This is not obvious and could catch a member whose civilian partner works for a federal agency. Many members might not realise that their partner's maternity leave counts against their own ADF parental leave.

4. Dual serving parents get only 18 weeks of paid leave combined across all paid categories (maternity, parental, special). This is a hard cap, not a default. If one parent takes 12 weeks, the other can take at most 6 weeks, regardless of need. Also note that special paid parental leave is part of this cap, but it is only available in limited circumstances. A dual serving couple may find they have used up their 18 weeks quickly and cannot access any more paid leave even if the other parent has not used any yet.

5. Special paid parental leave must be taken in a single continuous period within 14 weeks of birth/placement (s 5.7.6E). It cannot be broken into chunks. This is inflexible for members who might want to spread leave out to accommodate the partner's return to work.

6. Special paid parental leave is not available if the other parent is on any form of parental leave (s 5.7.6B). So a member cannot take special paid leave at the same time as their partner takes paid or unpaid parental leave. This overrides the very purpose of the leave if the couple wanted to share care in the early weeks. The only exception is if the other parent is on maternity leave and cannot care for the child (s 5.7.6C(2)), which is a high bar.

7. The "one benefit" rule for multiple births (s 5.7.4B(3)) means a member gets only one set of leave for twins, not double. No extra weeks for extra children.

8. Unpaid parental leave now explicitly counts as effective service (the amendment in item 7 adds "effective" to s 5.7.7.2). Previously it was ambiguous; now it is clear. But this means that unpaid leave periods count for pay increments and promotion, which could be a benefit. However, it also means the period counts as service for discharge purposes.

9. Flexible service members’ leave is only on pattern days (s 5.7.4D). This means a part time member serving three days per week will take 66 service days to reach 66 weeks of leave (because each week has only three leave days). They might extend the total calendar period well beyond 66 weeks. But the cap is on "amount" - 66 weeks of leave measured in service days, not calendar days. The member will actually be on leave for many calendar months but fewer service days. This is a technical detail that could catch those planning return dates.

10. Savings provisions apply only to applications made before 8 July 2021. A member who made an application after that date but before the determination was registered (unlikely) may be caught by the new rules. The savings also preserve the old law for decisions already made, but any variations to those decisions would probably fall under the new law.

Compliance for both members and Defence administrative staff involves several steps.

For members:

• Apply for parental leave using the approved form. Obtain the form from the unit HR or Defence People Group. Do not assume a verbal request is sufficient.
• Before applying, check the combined leave caps. If you are a dual serving parent, coordinate with your partner to ensure total paid leave (maternity, parental, special) does not exceed 18 weeks. If only one of you is a Defence member, the partner's parental or maternity leave (if a Commonwealth employee) will reduce your 66 week cap. You may need to obtain from your partner a statement of leave taken.
• Determine which division of leave you are eligible for. If you are the birth mother, you may be eligible for paid maternity leave under Part 6 (not covered by this instrument) and then apply for paid parental leave under Division 2. If you are not eligible for maternity leave (e.g., you are the non birth parent, adopter, or permanent carer), you may access paid parental leave under Division 2.
• If the other parent cannot care for the child due to disability, illness, or court order, you may apply for special paid parental leave under Division 3. You need to satisfy CDF of the circumstances. Prepare supporting evidence (medical certificates, court orders).
• Observe the time limits: special paid leave must be taken within 14 weeks of the eligible event and in one continuous period. Unpaid parental leave can be taken within 66 weeks.
• Keep records of all applications and approvals. If CDF grants special paid leave, the amount must be set in writing.
• If you are on flexible service, calculate your leave in service days, not calendar days. Ensure the pattern of service is documented.

For commanders and administrators:

• maintain a register of parental leave applications and approvals.
• When processing a member's application, check the partner's status. If the partner is also a member, query the partner's unit to ascertain how much leave the partner has taken or intends to take, to enforce the 18 week combined cap. This may require coordination across units.
• If the member's partner is a Commonwealth employee, request evidence of maternity leave taken under the 1973 Act to apply the reduction under s 5.7.4B(2)(c).
• Verify the approved form is correctly filled out and signed. No form, no leave.
• When granting special paid parental leave, record CDF’s decision and the reasons, and ensure the member signs an acknowledgement of the continuous period requirement.
• For dual serving parents, ensure that the combined 18 week cap is not exceeded. This may require a system of cross referencing leave records between members.
• For flexible service members, advise the member that leave is only taken on pattern days and that non working periods do not break continuity.
• Ensure all leave taken is correctly recorded in the pay system and counted as effective service (including unpaid parental leave after the amendment).
• For pre-commencement applications, apply the old rules as per Schedule 2 savings.

Non compliance by the member may result in unauthorised absence proceedings or recovery of overpaid salary. The determination places significant administrative burdens on both members and the chain of command to track multiple caps and external leave data.