Defence (Individual benefits) Determination (No. 6) 2025

Higher duties allowance is a payment made to a Defence member who temporarily performs the duties of a position that is at a higher classification than their own substantive position. The general rule is set out in Chapter 4 Part 1 of Defence Determination 2016/19. That determination prescribes standard rates, conditions, and eligibility criteria. This instrument does not replace that framework; it only suspends it for one member on one occasion.

Senior officer position is referenced in the purpose clause (section 4) but not defined in the instrument itself. The term is likely defined in the Defence Determination or in service policy. In practice, it generally refers to positions at the Colonel/Captain (Navy) level and above, or equivalent civilian classifications. Position number 00621386 is not publicly identifiable, but it is a specific establishment number within the Defence personnel system.

Individual benefits determination is a species of legislative instrument made under section 58B of the Defence Act 1903. Section 58B provides that the Minister may, by legislative instrument, determine benefits that are to be available to members of the Defence Force, and those determinations may apply to all members, a class of members, or an individual member. This instrument is at the far end of specificity: it applies to one member only. That is unusual in legislative instruments, which more commonly set general rules. The use of an individual determination rather than an administrative decision (e.g., a delegation to the Chief of Army to approve a special allowance) suggests that the maker considered parliamentary scrutiny or formal publication necessary, or that the amount exceeded delegated authority.

Salary payable to the member is the other term in the calculation. It is not defined in this instrument, so it takes its meaning from the Defence Determination or from the Defence Act. Typically, “salary” for ADF members includes the member’s substantive pay point based on rank and incremental progression, plus any applicable service allowances that are considered part of salary. It does not include reimbursements or one-off bonuses. The difference between that amount and $525,934 is the allowance payable.

The $525,934 figure is the anchor. It is not the salary of the senior officer position; it is the total amount that the member is deemed to be entitled to while acting in that position, with the allowance making up the shortfall. That is the standard design of higher duties allowance - the member should not be worse off financially by temporarily performing higher duties. What is unusual is that the figure is set by a separate legislative instrument rather than by reference to the senior officer’s actual pay point. That may be because the senior officer’s salary is itself variable, or because the position has a total remuneration package that includes non-salary components, and the instrument consolidates them into a single dollar amount.

The revocation clause (section 8) imposes a hard sunset on 11 April 2026. After that date, the instrument ceases to have effect, and higher duties allowance for the member (if still performing the same duties) would revert to the general rules in the Defence Determination. The note in the endnotes indicates the instrument has been amended, with section 2 repealed. That means the original commencement provision is no longer operative. The instrument as currently compiled likely relies on the general Legislation Act 2003 rule that legislative instruments commence on the day after registration unless otherwise specified. The amendment also altered section 7, so the current rate may differ from the one originally prescribed.

The direct effect falls on exactly one person: the Defence member with employee identification number 8083345. That member is entitled to receive the higher duties allowance from 11 April 2025 until 11 April 2026 (subject to continuous performance of the duties of position 00621386). The allowance is paid by the Department of Defence through its normal payroll system. The officer responsible for certifying and approving the payment within Defence - likely a unit pay officer, a finance branch, or the member’s commanding officer - must ensure that the allowance is calculated correctly and that it overrides the default system that would otherwise generate a different amount.

Indirectly, the instrument affects the Defence payroll system itself. Pay officers and IT administrators must enter an exception code or manually override the formula in the enterprise resource planning system (such as PMKeyS or its successor) to apply the bespoke rate. That imposes a small compliance cost and creates a risk of error if the manual override is not removed after revocation. Other members of the Defence Force who are performing higher duties under the general rules are not directly affected, but they may become aware of this instrument and question why one member receives a higher allowance than they do for comparable duties. That perception of unequal treatment can affect morale and retention, though the instrument does not disclose the justification for the special rate.

The $525,934 figure affects the Defence budget. The allowance is the difference between that amount and the member’s salary. If the member’s salary is, say, $250,000, the allowance is approximately $275,934 per annum. That is a substantial addition to the annual Defence pay bill. Because the instrument is a legislative instrument, it must be published on the Federal Register of Legislation, making the payment amount a matter of public record. For a single member, that may not be material, but if this becomes a pattern (multiple individual determinations for different members), the aggregate cost could become significant. Taxpayers ultimately fund the allowance. The instrument gives no indication that the member is required to meet any performance targets or accountability conditions to retain the allowance; it is purely a function of performing the higher duties.

The amendment determination that repealed section 2 and amended section 7 also affects anyone who needs to understand the instrument’s validity timeline. The original commencement table is gone, so practitioners must rely on the amendment history and the general provisions of the Legislation Act 2003 to ascertain when the instrument took effect. The amendment itself may have been intended to fix an error in the original rate or to extend the period, but without the amendment text, one cannot be certain. That creates uncertainty for the member and for Defence administrators: what was the rate before 13 June 2025? Did the amendment increase or decrease it? The answer is not in the source provided.

The instrument also affects the stakeholders who manage the senior officer position (position 00621386). That position may be a high-level command appointment, a policy role, or a technical specialist role. The incumbent during the period may have been absent, on leave, or redeployed, and the member covered by this instrument is acting in that role. The determination ensures the acting member is properly compensated, but it also signals that the standard allowances were considered inadequate to attract or retain that particular member for those duties. That might have implications for future acting arrangements.

The only substantive right created by this instrument is the right of the member holding employee ID 8083345 to receive the higher duties allowance at the rate described in section 7, for the period from 11 April 2025 to 11 April 2026, provided they are performing the duties usually undertaken by the occupant of position number 00621386. The right is conditional: it does not exist if the member ceases to perform those duties, and the entitlement ceases automatically on revocation (11 April 2026) even if the duties continue. There is no provision for pro-rata payment if the member performs the duties for part of a day, though the general Defence Determination may cover that.

Corresponding to that right is a duty on the Commonwealth (through the Department of Defence) to pay the allowance. The duty is enforceable by administrative law means: if the Department fails to pay, the member could seek review under the Administrative Decisions (Judicial Review) Act 1977 or through the Defence Force Ombudsman. The instrument does not impose any additional duties on the member, such as a requirement to report changes in circumstances, to obtain prior approval, or to produce evidence of performance of duties. The general Defence Determination likely contains such conditions, but this instrument does not override them for that purpose.

The note in section 7 clarifies that the member may also be eligible for higher duties allowance under Chapter 4 Part 1 of the Defence Determination from time to time. That means the instrument does not preclude the member from claiming the general allowance for other periods or positions. However, if the member performs multiple higher duties at different times, each period would be considered separately. The note avoids ambiguity: the special rate is only for the specific position and period.

There is no right of review stated in the instrument. If the member disputes the calculation (e.g., if the salary payable is in dispute, or if the $525,934 figure is not correctly applied), they must rely on external grievance mechanisms. Defence has a formal redress of grievance system under the Defence Act 1903 and service policies. The instrument does not create a right to be heard before revocation or amendment. The amendment that occurred in June 2025 was done without the member’s consent, presumably, and the member has no statutory right to object.

The instrument imposes no duties on third parties. Payroll contractors or shared services providers handling Defence pay must implement the override, but that is an operational matter, not a legal duty under the instrument.

This instrument does not create any offences or pecuniary penalties. It is a benefits-setting instrument, not a regulatory or prohibitory one. Enforcement mechanisms are therefore indirect. If the Department overpays the allowance (e.g., because the member’s salary was incorrectly stated, or because the member continued to receive the allowance after ceasing the duties), the overpayment is recoverable as a debt due to the Commonwealth, typically under section 44 of the Financial Management and Accountability Act 1997 (now the Public Governance, Performance and Accountability Act 2013). The instrument does not address overpayment or clawback, so general law applies.

If the Department underpays, the member may seek internal review, then application to the Defence Force Remuneration Tribunal or the federal courts, depending on the legal character of the determination. The instrument does not include a penalty for non-payment. The practical enforcement pressure is on the Department to pay correctly because failure to do so could lead to adverse administrative decisions and reputational harm.

The amendment history records that section 2 was repealed under section 48D of the Legislation Act 2003. Section 48D deals with editorial changes that can be made to correct misdescribed amendments or other minor errors. That does not create a penalty, but it indicates that the original instrument had a defect that needed correction. If the original commencement provision was invalid, the instrument might have been void ab initio. The amendment appears to have cured that, but the legal consequences of the interim period (21 May to 13 June 2025) are unclear. If the instrument was not validly in force during that period, any payment made under it could be unauthorised. That is a significant enforcement risk: the member may have received money without legal authority, and the Commonwealth may have difficulty recovering it if it was paid in good faith. Alternatively, the amendment might have retrospectively validated payments, but the source does not state that.

No criminal penalties apply. No civil penalties apply. The instrument does not delegate enforcement powers to any officer. It is, in effect, a non-punitive instrument, but its amendment history raises the possibility of invalidity, which could lead to legal disputes over the allowance paid or unpaid.

This instrument is made under section 58B of the Defence Act 1903. That section gives the Minister a broad power to determine benefits for ADF members, and the instrument is a legislative instrument subject to tabling and disallowance under the Legislation Act 2003. It operates as a standalone override, not an amendment, of Defence Determination 2016/19. Section 4.1.16 of that determination is expressly superseded by section 7 of this instrument. For all other purposes, the Defence Determination remains in full force for the member.

The Fair Work Act 2009 generally does not apply to ADF members, who are excluded from the national workplace relations system. The instrument does not interact with industrial awards or enterprise agreements. The Remuneration Tribunal Act 1973 may also be ousted because the Defence Force Remuneration Tribunal’s jurisdiction is limited by the Defence Act and the Naval Defence Act 1910; individual determinations under section 58B are distinct from tribunal determinations.

Taxation law applies as usual: the higher duties allowance is assessable income under the Income Tax Assessment Act 1997 and subject to PAYG withholding. The instrument does not create any tax exemption. The member must declare the allowance in their tax return. The $525,934 figure is presumably gross of tax.

The instrument interacts with the Financial Management and Accountability Act 1997 (now PGPA Act 2013) regarding proper expenditure. The allowance must be paid from an appropriation, likely under the annual Defence appropriation acts. The instrument itself does not provide an appropriation; it merely determines entitlement.

The Legislation Act 2003 governs the registration, tabling, and sunset of legislative instruments. The instrument’s automatic revocation on 11 April 2026 (section 8) is a sunset clause consistent with that Act. The amendment that repealed section 2 (the commencement table) was likely an editorial change under section 48D of that same Act, which allows the Federal Register of Legislation to correct misdescribed amendments or typographical errors. That repeal means the instrument no longer contains its own commencement rule; under section 12 of the Legislation Act 2003, a legislative instrument commences on the day after registration unless otherwise specified. So the instrument probably commenced on 22 May 2025 (the day after its original registration) and the amendment commenced on 13 June 2025 (the day after the amending instrument’s registration). There is no conflict with state laws because Defence matters are constitutionally federal.

The instrument does not incorporate any other laws by reference beyond Defence Determination 2016/19. That determination is defined in section 6 as in force from time to time, meaning future amendments to the Defence Determination automatically affect this instrument unless inconsistent. If the Defence Determination is later amended to increase the general higher duties allowance rates, that does not alter the special rate set here, because s 7 says “despite section 4.1.16” - the override holds.

The amendment history is brief. The original instrument (Defence (Individual benefits) Determination (No. 6) 2025) was registered on 21 May 2025 and commenced on 22 May 2025. On 12 June 2025, the Defence (Individual Benefits Determination No. 6) Amendment Determination (No. 1) 2025 was registered and commenced the next day. That amending instrument had a Schedule 2 (according to the table), but the source only shows that Schedule 2 is referenced, not its content. The amendments were: section 2 repealed (under section 48D of the Legislation Act 2003) and section 7 amended.

The repeal of section 2 is designated “rep: LA s 48D.” Section 48D of the Legislation Act 2003 permits the responsible Minister or the Federal Register of Legislation to make editorial changes to a legislative instrument to correct a misdescribed amendment or to ensure the instrument accurately reflects the amendment. This suggests that the original section 2 (the commencement table) was either incorrectly drafted or became redundant after the amendment. It is unusual for a commencement provision to be repealed entirely by editorial change; typically, editorial changes are for minor errors like spelling or cross-references. The fact that it was done under s 48D rather than by a formal amendment indicates that the original s 2 was considered defective enough to be removed without substantive alteration. This could mean the table referenced a non-existent date or used incorrect formatting, but the legal effect is that the instrument no longer has a bespoke commencement clause.

The amendment to section 7 is marked “am: 2025/1.” Without the text of the amending instrument, the precise change is unknown. It could have been a change to the dollar figure ($525,934), a change to the description of the position number, or a correction of the calculation method. The note in the compilation indicates that endnotes provide abort information, but the endnotes are not reproduced in full. The amendment history also shows “Schedule 2” in the application, saving and transitional provisions column for the amending instrument. That suggests the amending instrument may have contained transitional provisions, perhaps clarifying that the amendment applies from the original commencement date or only prospectively.

The net effect is that the instrument has been significantly altered within its first month of operation. That indicates rushed drafting or last-minute negotiations. For a determination affecting one member’s pay, this is a strong signal that the original terms were either incorrect or unsatisfactory to one of the parties. The repeal of the commencement table also introduces uncertainty about the instrument’s validity before the amendment. If the original s 2 was defective, the instrument might not have been legally in force from 22 May to 13 June 2025. The member might have performed the higher duties during that period without a valid allowance entitlement. The amendment may have attempted to remedy that, but unless it included retrospective commencement, the gap remains.

There is no reported litigation about this instrument. It is a 2025 instrument, very recent, and only in force for a short period. No cases are cited in the source. However, it is possible that the instrument could be subject to challenge. The most likely ground would be that it is ultra vires section 58B of the Defence Act 1903. Section 58B requires that determinations relate to “benefits” for members; a higher duties allowance is clearly a benefit, but the power must be exercised for the purpose of the Act. If the instrument were found to be arbitrary or to unfairly favour one member without justification, a court might quash it as unreasonable or for improper purpose. However, the threshold for judicial review of a legislative instrument is high; the instrument would need to be manifestly unreasonable or beyond the scope of the power.

Another potential challenge could arise from the amendment repealing section 2. If the original section 2 was invalid, the instrument might be void ab initio, and any payments made under it could be challenged for lack of appropriation or authority. A member who was underpaid might argue that the instrument was never valid, while the Commonwealth might argue that the amendment retroactively validated it. No case law on similar individual determinations has been provided, but there is general administrative law on the effect of correcting defective commencement provisions.

Discrimination claims under the Racial Discrimination Act 1975 or the Disability Discrimination Act 1992 are unlikely but theoretically possible if the member was selected for favourable treatment on a prohibited ground. The instrument does not name the member or give any personal details that would indicate a protected attribute, so such a claim would be speculative.

There is no indication of litigation in the notes, and the instrument has not been subject to parliamentary disallowance or scrutiny committee reports that would be publicly noted. The litigation history for this instrument is nil, but practitioners should be aware that any dispute over the allowance amount or its legality would likely be resolved through internal grievance procedures before reaching a court.

The most obvious trap is the amendment repealing section 2. Anyone relying on the instrument as originally made must verify the current compilation. The original commencement table is gone, so the effective date has changed. If a party assumed the instrument commenced on 22 May 2025, they might be correct, but the repeal of the commencement provision could mean the instrument is treated as having no valid commencement during the period before the amendment. That creates a window where the member may have performed duties without a legally enforceable entitlement to the special allowance. The member should ensure that any payments made before 13 June 2025 were either validated by the amendment or paid under a separate administrative authority.

Second, the instrument is extremely narrow: it applies only to one person and one position. If the member changes positions or leaves the role for any reason, the allowance stops. There is no grace period. If the member is temporarily absent (e.g., sick leave), the allowance likely does not accrue unless the performance of duties continues. The determination does not address partial performance. Pay officers must monitor the member’s duty status carefully.

Third, the $525,934 figure is not indexed. It remains fixed for the entire year, regardless of any pay rise the member receives in their substantive role or any increase in the senior officer’s salary. If the member’s substantive salary increases (e.g., due to annual increment), the allowance decreases dollar-for-dollar. That could create a perverse incentive: the member might not benefit from substantive pay increases while acting. The note about eligibility under Chapter 4 Part 1 suggests that if the general rules would provide a higher allowance at some point, the member might be able to elect to revert to the general rule. But the instrument says “despite section 4.1.16,” so it is ambiguous whether the member can choose. The note says the member “may be eligible for higher duties allowance from time to time under Chapter 4 Part 1,” which probably means for other periods, not this one.

Fourth, the instrument does not specify what happens if the position number 00621386 is reclassified or abolished during the year. If the position ceases to exist, the duties are no longer “usually undertaken by a person occupying the position,” and the allowance condition fails. That could leave the member without an allowance for the remainder of the year, even if they continue performing similar duties under a different position number.

Fifth, the revocation on 11 April 2026 is automatic and does not rely on any further action. But the member might continue performing higher duties after that date. The instrument does not provide for a tapering or notice period. The member must ensure that remuneration for any period after 11 April 2026 is governed by the general Defence Determination or a new individual determination.

Sixth, the amendment history indicates that section 7 was amended. If the original rate was lower or higher than the current one, any payments made under the original rate may need to be adjusted. The amending instrument might have been explicit about whether it applies retrospectively, but the source does not include that detail. Pay administrators must check the amending instrument’s transitional provisions (Schedule 2) to confirm.

Seventh, the determination is a legislative instrument, not an administrative decision. That means it is subject to parliamentary scrutiny and disallowance. If Parliament disallows the instrument or the amendment, the allowance may be void retrospectively. That risk is low but real.

Finally, the instrument does not explicitly state that the member must actually perform the duties of the senior officer position to be entitled. Section 7 says “when performing the duties usually undertaken by a person occupying the position.” That implies continuous performance. If the member performs the duties only occasionally (e.g., filling in for a week), the allowance might be payable on a pro-rata basis. But the instrument does not provide a daily or weekly rate. The calculation is “the difference between the salary payable to the member and $525,934.” That is an annual figure. It is unclear how to calculate a partial period. The general Defence Determination may contain rules for pro-rating, but it is not safe to assume.

Compliance is straightforward for the Department of Defence and the member. The principal obligation is on the Department to identify the member (employee ID 8083345), confirm that they are performing the duties of position number 00621386, and calculate the allowance as the difference between the member’s salary and $525,934. The salary payable should be taken from the member’s substantive pay point as at the date of performance, including any applicable additions that form part of salary under the Defence Determination. The allowance should be paid from 11 April 2025 until 11 April 2026, but only for periods when the member actually performs those duties. If the member ceases the duties temporarily or permanently, the allowance should be suspended or terminated accordingly.

The Department should maintain a written record of the instrument and the amendment, and ensure that payroll systems reflect the override. Because the instrument is a legislative instrument, it should be recorded in the payroll system as an exception code. The amendment that repealed section 2 and amended section 7 should be applied as soon as possible after 13 June 2025. Any payments made between 22 May and 13 June 2025 (if the original instrument was in force) may need to be recalculated if the amendment changed the rate. The Department should obtain legal advice on whether the amendment is retrospective and whether any adjustments are required.

The member does not need to take active steps to receive the allowance, other than performing the duties and ensuring that their payroll details are correct. However, the member should verify that the allowance is being calculated correctly. If the member believes the salary payable to them is higher or lower than what the Department uses, they should raise a query. The member should also be aware that the allowance is taxable income and should be included in their annual tax return. The member may wish to seek tax advice if the allowance pushes them into a higher bracket or affects other entitlements.

For pay officers, standard operating procedures should include: (1) verifying the member’s identity and position number, (2) confirming the member’s substantive salary, (3) applying the formula, (4) setting an end date of 11 April 2026, (5) monitoring for early revocation or cessation of duties, and (6) ensuring that after revocation the general Defence Determination rules resume.

No reporting or audit obligations are created by this instrument. But because the allowance is taxpayer funded, internal audit may review the determination to ensure it was made with proper authority and within budget. The Department should retain copies of the instrument, the amendment, and any correspondence justifying the special rate. The member should keep payslips and a record of duties performed. Disputes should be resolved through the Defence redress of grievance system, then to the Defence Force Ombudsman or judicial review if necessary.

Finally, both the Department and the member should be mindful of the sunset date. If the senior officer position is still unfilled or the member is still acting as of 11 April 2026, a new instrument or administrative decision will be needed to continue the allowance. The Department should plan for that well in advance to avoid a gap in entitlement.