Defence (Non-foreign work restricted individual) Determination 2024

The instrument relies on a small set of legal and operational concepts mapped into the Defence Act framework. First, the threshold legal device is an exclusion from the statutory category “foreign work restricted individual” as that term is used in subsection 114(2) of the Defence Act. The Determination does not define the substantive obligations that attach to being a foreign work restricted individual; it only identifies who is not in that category for the quoted subsection (s 5).

Second, Schedule 1 implements a role-by-role, time-bound test: two conjunctive elements are required for the exclusion. Element one is that the person previously worked in a role, rank, appointment, position or function that appears in Schedule 1 (s 5(1)(a)(i)). Element two is that the relevant “Time elapsed since individual last worked in” that role meets or exceeds the time period recorded in column 5 of the corresponding Schedule 1 entry (s 5(1)(a)(ii)). Schedule 1 therefore functions as a map of roles to “elapsed time” thresholds. The instrument uses the phrase “previously worked in” rather than “last employed by Defence”, and column 5 is explicit about “since individual last worked in [the listed] function” (Schedule 1, Column 5). The operative effect is role-focused and role-timing-focused rather than purely separation-date-focused.

Third, the instrument cross-references classifications and definitions that sit outside the instrument itself. It imports APS employee, SES employee and agency head from the Public Service Act 1999 (s 4). It also refers to “star ranked officer” and links that to the Defence Act’s Schedule 1 (s 4). In Part II the instrument recognises acting appointments and extra remuneration mechanisms as evidence of service at a substantive or acting level, provided a 12-month consecutive period is satisfied; that rule affects how one counts the “last worked in” date for senior positions (Schedule 1, Part II note).

Fourth, there is a tiered sensitivity design embedded in the elapsed-time numbers. Functions that are closer to business-as-usual, administrative or personnel operations often have a 1-year requirement in numerous entries (for example APS functions such as Accounting and Financial Systems Function, Base Support Function, Customer Service Function, many trades and logistics roles across the Services). Functions that implicate greater operational sensitivity or technical specialisation typically attract 5-year or 10-year thresholds (for example Intelligence roles, Cyber Warfare roles, many engineering and platform systems roles, and senior strategic leadership roles listed in Part II). The instrument therefore operationalises a risk-differentiated approach by associating longer elapsed-time requirements with functions that presumptively carry higher sensitivity.

Fifth, the instrument is a pure determination under the Defence Act power provision; it does not create new offences or penalties, it sets classes for a pre-existing statutory mechanism, and it relies on the Act’s definitions and enforcement architecture. The formal authority is subsection 115(1) of the Defence Act (s 3). The instrument therefore operates as a scheduled, technical exercise in eligibility rather than a free-standing regulatory regime.

Finally, there is potential for interaction between items when a person previously held more than one listed function. The text of s 5(1)(a)(ii) requires the individual to satisfy the relevant condition “for each role, position, function, rank and appointment that the individual previously worked in.” That means the elapsed-time test is conjunctive across multiple prior roles: a former employee who held a 1-year role and a 10-year role must satisfy both countdowns before qualifying as not foreign work restricted under this Determination.

The Determination is explicitly addressed to former defence staff members. Its Schedule divides the targeted population into discrete groups. Part I deals with “Former defence staff members,APS employees”. That covers a long list of Defence APS job family functions such as Accounting and Finance, Administration and Customer Service, Procurement and Contracting, ICT, Health functions and many others (Schedule 1 Part I, Column 2 and Column 3). The Part I entries tie each APS job family function to a “Time elapsed” threshold in Column 5. The practical effect is that former APS employees are affected where they previously occupied a job family function that appears in the table and the elapsed time since they last worked in that function meets the listed number of years.

Part II targets “Former defence staff members,agency heads, statutory appointments and senior executives”. That includes SES employees, star ranked officers, service chiefs, Vice Chief of the Defence Force, Chief of the Defence Force, Director-General of the Australian Submarine Agency and Secretary of Defence (Schedule 1 Part II Items 1-7). The time elapsed requirement for all these positions is 10 years or more (Column 5). The Part II note expands coverage for acting service: SES employees and star ranked officers includes individuals acting at that level (receiving Additional Responsibility Pay for APS, acting rank or Higher Duties Allowance for ADF), provided the acting period was a consecutive period of 12 months or more. That operates to include both substantively appointed and certain long-term acting appointees within Part II.

Parts III-V address former ADF members by Service: Navy (Part III), Army (Part IV) and Air Force (Part V). Each of those Parts lists ADF Defence Strategic Workforce Segments and role names. For each role a “Time elapsed since individual last worked in role” is specified. Examples include: Aviation Pilot roles carrying 10 years in several services; many Health, Chaplain and Band roles with 1 year; Intelligence and Cyber roles with 10 years; certain trade and technical roles with 1 or 5 years. The lists include cross-references to former role names where applicable, to assist mapping historic role labels to current role names.

Who therefore pays the cost or receives the benefit? The primary impacted persons are former Defence APS staff, former ADF members and senior executives named in the Schedule. Employers in sectors that hire ex-defence personnel are indirect actors affected by this Determination: the Determination changes the eligibility profile for potential hires seeking to be treated as not foreign work restricted in relation to subsection 114(2) of the Act. Hiring entities that plan to rely on those persons to provide services that might otherwise raise foreign work restriction issues will be affected in their recruitment timing and candidate pool. Agencies responsible for record-keeping, HR verification and legal counsel are also affected because they must interpret and apply the elapsed-time rules to particular employment histories.

The instrument also implicates persons whose roles have changed names over time. Column 4 in many entries provides former role names; that reduces the risk that a person will be misclassified due to a label change, but it places a burden on whoever must map historical role titles to the Schedule. Finally, the definitions imported from the Public Service Act 1999 (APS employee, SES employee, agency head) and the Defence Act (for star ranked officer, defence staff member and service chief) mean that the net population affected depends on cross-Act definitional tests rather than solely on the Determination’s text.

The instrument does not impose new active duties or create affirmative rights in the form of entitlements. Its legal function is definitional and classificatory: it identifies classes of persons who, for the purposes of subsection 114(2) of the Defence Act 1903, are not foreign work restricted individuals (s 5). That classification carries operational consequences only to the extent that subsection 114(2) of the Defence Act imposes obligations, limitations or prohibitions on foreign work restricted individuals. The Determination therefore changes which persons attract the legal consequences set out in the Act, but the text of those consequences is in the Act, not in the Determination.

From a practical compliance perspective, the Determination places an implied administrative duty on decision-makers and employers to establish whether an individual meets the Schedule tests. Concretely that means a person seeking the benefit of being “not foreign work restricted” will need to demonstrate that they previously worked in a listed role and that the elapsed time since they last worked in that role meets the column 5 threshold (s 5(1)(a)(i)-(ii) and Schedule 1). Where an individual held multiple listed roles previously, they must satisfy the elapsed-time condition for each listed role previously held (s 5(1)(a)(ii)). The requirement is conjunctive, which raises a compliance duty for applicants and record-keepers to assemble employment histories that show the relevant last-worked dates for each function.

Part II adds a particular evidentiary rule for acting appointments and payments: SES employees and star ranked officers include persons who were acting at that level and received Additional Responsibility Pay (APS) or acting rank/Higher Duties Allowance (ADF) for a consecutive period of 12 months or more. That creates an operational right to be included in Part II coverage for long-term acting appointees, but it simultaneously creates an evidentiary duty to prove the 12-month consecutive duration and the relevant pay/allowance entitlement. The instrument is explicit about this point in the Part II note.

The instrument also depends on external definitions (s 4). For example, whether someone is an APS employee or SES employee is determined under the Public Service Act 1999. That creates a cross-Act administrative duty: parties must check those definitions to know whether the Schedule Part is applicable.

The Determination does not itself provide a mechanism for dispute resolution, application, or certification. It does not state how an individual obtains a formal acknowledgement from Defence or another decision-maker that they are not a foreign work restricted individual. Those processes, if any, are in the Defence Act or in departmental administrative practice; the Determination simply sets the qualifying classes and elapsed-time thresholds.

Finally, the Determination creates an implicit right for private employers to rely on a former employee’s classification where the elapsed-time tests are met, subject to any other legal or contractual restrictions that might continue to apply under the Defence Act or other laws. The instrument does not displace other ongoing controls (for example indemnities in contracts, separate security vetting requirements, or other statutory regimes) because it is limited expressly to the purpose of subsection 114(2) of the Act.

The Determination does not create offences, penalties or enforcement mechanisms within its own text. The instrument is made under subsection 115(1) of the Defence Act 1903 (s 3), but it confines itself to setting classes of persons who are not foreign work restricted individuals for the purposes of subsection 114(2). The Determination is silent about penalties and enforcement. That silence means that any penal or enforcement consequences associated with being a foreign work restricted individual , or with contravening prohibitions that apply to foreign work restricted individuals , rest with the Defence Act and any other primary legislation and subordinate instruments that set out offences, administrative sanctions, or enforcement processes.

In practice, enforcement questions will be resolved under the Act’s regime. Because the Determination operates by excluding classes from being foreign work restricted individuals, enforcement of prohibitions tied to that status will turn on the correct classification of persons under this Determination and on the Act’s enforcement provisions. The Determination therefore creates practical compliance points that enforcement authorities could scrutinise: for example, whether an individual met the elapsed-time threshold for a listed role, and whether an acting appointment counted for Part II purposes (the 12-month consecutive period rule in the Part II note).

The Determination also implicitly places operational responsibilities on Defence HR and record-keeping systems and on agency heads (as defined in s 4). If an enforcement action arises under the Act and hinges on classification under this Determination, the availability, accuracy and accessibility of employment records showing the last date someone worked in a function will be determinative. The Determination does not set out who bears the burden of proof if a dispute occurs; that allocation will be governed by the Act and by general administrative-law principles.

Because this instrument does not create its own penalties, there is no schedule of fines, infringement notices, or administrative sanctions in the Determination. Anyone seeking to evaluate enforcement risk should therefore consult the Defence Act 1903 for the operative offence provisions and the procedures for investigation, prosecution or administrative action that apply when a person is found to have contravened the Act’s restrictions while not properly excluded by a valid determination.

The Determination is an instrument made under the Defence Act 1903, and it explicitly imports definitions from the Public Service Act 1999 (s 4). The text therefore creates direct cross-references to at least two statutory sources: the Defence Act and the Public Service Act. For definitional matters, APS employee, SES employee and agency head mean what they do under the Public Service Act 1999 (s 4). The Determination also relies on the Defence Act for terms such as defence staff member, foreign work restricted individual and service chief (s 4, note). The role “star ranked officer” is defined with reference to the Defence Act’s Schedule 1 (s 4), so this instrument depends upon the Act’s internal schedules for rank definitions.

Operationally this cross-referencing matters in several ways. First, whether a person falls within Part I (APS) vs Parts III-V (ADF) depends on whether they are classified as an APS employee under the Public Service Act or as a member of the ADF under the Defence Act. That distinction will determine which Schedule entries apply and which elapsed-time thresholds are relevant.

Second, the Determination only addresses the statutory category “foreign work restricted individual” for the purpose of subsection 114(2) of the Defence Act. Any other prohibitions in the Defence Act (for example, broader restrictions, security-related requirements, confidentiality duties, or other post-employment controls that the Act may contain) are not altered by this Determination unless they explicitly depend on the subsection 114(2) classification. Practitioners must therefore read this Determination in tandem with the relevant provisions of the Defence Act to understand the complete legal regime affecting post-defence employment for a particular individual.

Third, because the Determination deals with “time elapsed since individual last worked in” a function, it requires accurate HR records and may interact with administrative law principles on proof and record-keeping. The Part II note expressly recognises pay and allowance mechanisms (Additional Responsibility Pay, Higher Duties Allowance) used in APS and ADF practice for counting acting service. That embeds employment-pay practice into the legal test and therefore creates an interaction between industrial/HR practice and statutory classification.

Fourth, the Determination’s lists of roles and former role names may overlap with other statutory or regulatory lists used in other regimes such as security vetting, export controls, or sanctions-related rules. The Determination does not address or displace those regimes; firms and individuals must ensure compliance with any other legal obligations that are unaffected by this instrument. The instrument therefore coexists with other bodies of law rather than supplanting them.

Finally, because the instrument is a determination (not primary statute) made under a power in the Defence Act, it may be subject to disallowance, judicial review or other legal challenge avenues applicable to subordinate instruments. The text supplied contains no amendment history or disallowance clause but the legal architecture in which it sits includes mechanisms for parliamentary scrutiny and administrative law recourse. The Determination therefore operates inside an established legislative and administrative ecosystem and will interact with the Act and other statutes through definitions, thresholds and evidentiary mechanics set out in its text.

The instrument’s short title is the Defence (Non-foreign work restricted individual) Determination 2024 (s 1). The text supplied does not set out any previous versions, amendments, or revocations. The instrument states its statutory authority under subsection 115(1) of the Defence Act 1903 (s 3), which is the enabling provision allowing determinations of this character. There are no schedules within the instrument that amend prior determinations, and no marked-up redline or marginal notes showing prior versions. The Schedule 1 contained in the instrument is comprehensive in the text provided.

Because no amendment history is recorded in the instrument text supplied, readers should treat this instrument as a stand-alone determination made in 2024 and not as an amending instrument to an earlier Determination in the materials provided. If there were previous determinations addressing the same subject-matter in prior years, those are not referenced or replicated in this text.

One discrete internal update to note is the Part II technical rule about acting appointments: the instrument records that SES employees and star ranked officers include persons acting at that level for a consecutive period of 12 months or more (Part II note). That is an operative drafting detail that may represent a substantive interpretative rule compared with prior practice, if previous determinations did not treat acting service in the same manner. The instrument does not say whether that formulation is novel or continuing practice.

From a practitioner’s perspective, absence of an explicit amendment record in the instrument necessitates external verification. Reviewers should check the Federal Register of Legislation and any Defence administrative announcements for the instrument’s registration date, commencement date, any explanatory materials, and whether it replaced or amended earlier determinations on foreign work restrictions. The instrument itself contains no revocation clause, transitional provisions or saving provisions for persons whose status changed before its commencement. Those matters, if relevant, will be found in associated public notices, explanatory memoranda or the Defence Act’s transitional provisions , not in the text provided.

The instrument text supplied contains no reference to litigation, court decisions, or judicial review outcomes. There are no case citations, no referenced judicial interpretations, and no annotated notes of past disputes concerning these particular schedule entries. As a consequence, the instrument’s legal status, as presented, is purely textual and administrative.

For practitioners seeking precedent or guidance on how courts might treat disputes arising from this Determination , for example disputes concerning the correct interpretation of “last worked in”, the application of the 12-month acting-rule in Part II, or the interplay between multiple prior roles and the conjunctive elapsed-time test in s 5(1)(a)(ii) , there is nothing in the instrument to rely on. Any litigation history connected to the Defence Act’s broader regime (including subsection 114(2) or enforcement provisions) is not included in this Determination. Parties anticipating contested cases should therefore look beyond the Determination to reported decisions about the Defence Act generally, administrative-law principles on delegated instruments, and case law on statutory construction and labour-history evidentiary standards. Those authorities are not included in the instrument text and must be sourced elsewhere.

Absent a recorded litigation history, the likely early legal contests that could arise are interpretative: determining what counts as “last worked in” a specific function when role titles have changed or where personnel records are partial; whether acting service that is not strictly consecutive but effectively continuous qualifies under the Part II note; and disputes about whether a particular historical function maps to a Schedule 1 entry where Column 4 lists former role names as non-exhaustive indicators. The Determination does not contain clarifying examples, dispute-resolution guidance or administrative appeal pathways; those questions will be decided either by administrative practice or, if litigated, by courts applying ordinary statutory interpretation principles and the Defence Act’s enforcement provisions.

This Determination creates a number of practical traps and interpretation-sensitive points for advisers, employers, and former defence staff when determining status.

1. Conjunctive multi-role requirement. Section 5(1)(a)(ii) requires satisfaction of the relevant condition in column 5 “for each role, position, function, rank and appointment that the individual previously worked in.” This is conjunctive. If an individual previously worked across multiple listed functions with different elapsed-time thresholds (for example an APS employee who previously worked in a 1-year finance function and a 5-year governance function), the individual must meet the elapsed-time requirement for every listed role they previously held. Practitioners must therefore audit not only last role but the entire Defence work history against Schedule 1.

2. The “last worked in” timing metric. Column 5 reads as “Time elapsed since individual last worked in [the function]”. That is distinct from “time since separation from Defence” or “time since last held any Defence role.” If an individual moved from a classified role to a non-listed role within Defence, the “last worked in” date for the classified role may pre-date a later Defence exit. Advisers must therefore identify the precise date the person last did the specific function, not simply an end-of-service date.

3. Role name mapping and former names. Column 4 contains former role names for some items to aid mapping. However not every historical role title is listed and the table may not be exhaustive. Employers and advisers should be cautious about assuming a title match. Where role titles changed across restructures, documentary evidence of duties and classification during the period in question will be important to show that the individual indeed “worked in” the listed function.

4. Acting appointments counted only in Part II under conditions. Part II has an explicit note that SES employees and star ranked officers include acting appointees for APS and acting rank/Higher Duties Allowance for ADF, but only where the acting arrangement ran for a consecutive period of 12 months or more. Acting service of shorter duration will not be counted under that rule, which can materially affect senior personnel who undertook temporary higher duties. Advisers must check payroll and allowance records to prove acting-service duration and entitlement.

5. Differential sensitivity and employer expectations. The Schedule mixes low-threshold (1 year) roles, mid (5 year) and high (10 year) thresholds. Employers who expect to recruit ex-defence technical specialists will find different waiting times depending on function. Mistaking a 1-year for a 10-year role (or vice versa) can expose both employer and hire to regulatory uncertainty if a later enforcement matter depends on proper statutory classification.

6. The Determination is only about subsection 114(2). It does not alter other legal obligations that may restrict post-defence work, such as separate confidentiality duties, security vetting requirements, export-control obligations, or criminal law prohibitions. Treating someone as “not foreign work restricted” under this Determination does not immunise them from other legal constraints. Advisers must check the Defence Act and other relevant regimes, rather than relying solely on the Determination.

7. No application or certification process in the Determination itself. The instrument does not set out how a person obtains a formal ruling or certificate from Defence that they are not foreign work restricted. In the absence of an administrative certification mechanism in the text, parties may face operational uncertainty in hiring decisions unless Defence provides ancillary processes or guidance.

8. Evidence burden and record-keeping. The Determination effectively requires an evidentiary showing of last-worked dates and, for Part II actors, pay/allowance proof. Poor HR records will hamper classification and can be decisive in enforcement or dispute situations.

9. Cross-Act definitional dependency. Because APS/SES and agency head are sourced from the Public Service Act 1999, and star ranked officer is connected to the Defence Act, misapplication of those external definitions will lead to misclassification.

10. No transitional or saving provisions shown. The text available contains no transitional rules dealing with persons whose work history spans the instrument’s commencement. If a person’s eligibility turns on a “time elapsed” test that may straddle the Determination’s commencement date, advisers should seek contemporaneous commencement information from the Federal Register of Legislation.

If you are advising a former defence staff member, an employer considering hiring one, or a Defence HR/agency head responsible for classification, the following practical compliance steps follow directly from the instrument’s mechanics and the text’s explicit requirements.

1. Map the person’s work history to Schedule 1. Start by creating a comprehensive list of every role, function, rank or appointment the person has held in Defence. For APS employees, use the Public Service Act 1999 definition to confirm the category. Then match each historic role to the appropriate Part and item in Schedule 1 (Parts I-V and Part II for senior roles). Use Column 4 where present to map former role names. Where there is uncertainty about the equivalence of a historical title and a Schedule entry, document the role duties and any Defence classification statements or position descriptions that support the mapping.

2. Establish the “last worked in” dates for each listed role. For each Schedule entry that the person previously worked in, determine and document the last date the person performed that specific function. The elapsed-time requirement refers to “since individual last worked in” the function, so the last-worked date is the critical computation point for the Column 5 threshold.

3. Calculate elapsed-time against Column 5. For each listed role previously held, confirm whether the elapsed time since the last-worked date meets or exceeds the number of years set out in Column 5. Remember the conjunctive requirement in s 5(1)(a)(ii): all listed roles that the individual worked in must satisfy their respective thresholds.

4. For senior/acting cases, assemble pay and acting records. If the person claims inclusion under Part II based on acting appointments, collect payroll, Additional Responsibility Pay records, Higher Duties Allowance records, or acting rank orders that demonstrate a consecutive 12-month acting period. The Part II note makes this a decisive evidentiary test.

5. Get agency head or legal sign-off where appropriate. While the Determination does not state an internal certification process, prudent employers or agency heads should document an internal legal assessment that the person’s history satisfies the Determination conditions before taking actions that depend upon the person not being foreign work restricted. This reduces operational risk should questions later arise.

6. Retain and archive supporting documents. Because the Determination’s classification hinges on dates and pay/allowance evidence, retain position descriptions, task sheets, role reclassification documents, payroll records, personnel orders, and any Defence-issued certification. These documents will be required to justify a compliance position.

7. Check for other applicable constraints. Confirm whether other statutory, contractual or security restrictions continue to apply to the person’s proposed work. Being “not foreign work restricted” under this Determination may not relieve obligations under other parts of the Defence Act, confidentiality covenants, security clearance conditions, export control rules or sanctions regimes.

8. Consider staged hiring or conditional engagement. If there is uncertainty about whether elapsed-time thresholds are met, employers may wish to use conditional employment terms or staged responsibilities that avoid exposing the firm to breach of any statutory restriction pending formal confirmation of status.

9. Coordinate with Defence policy channels where possible. If there is operational ambiguity that could affect recruitment (for example borderline acting-service durations, unclear role-name mappings, or gaps in records), seek advice from Defence legal or HR policy teams. Although the Determination does not prescribe an application or notification process, departmental practice may provide authoritative confirmation.

10. Monitor the Federal Register of Legislation and departmental guidance. Because the instrument as supplied lacks an amendment history and does not contain implementation guidance, keep an eye on the published Determination as registered, any explanatory memorandum, and any Defence guidance notes that explain administrative procedures for determining status under subsection 114(2) of the Defence Act.

By following these steps you will align documentary practice with the instrument’s mechanics: identify prior roles listed in Schedule 1, compute precise “last worked in” dates, verify acting-service evidence where Part II applies, and document the decision trail to support a classification that a person is not a foreign work restricted individual under s 5 of this Determination.