Defence (Payments to ADF Cadets) Determination 2023

This Determination operates through a small set of defined concepts that structure entitlement, payment and administrative delegation. Key concepts defined in the instrument are: Act (meaning the Defence Act 1903), authorised person (as given by s 10), and daily amount (an amount payable in respect of participation in an activity of the ADF Cadets for all or part of a day) (s 4). These definitions anchor the remainder of the instrument.

"Daily amount" is a per‑day payment concept: it covers participation for "all or part of a day" and therefore is agnostic to hours worked within that day (s 4). The instrument does not define rates; instead, rates are set by the Chief of Personnel by notifiable instrument (s 7(1)). Because the instrument separates the concept of a unit of payment from the quantum of payment, it creates a two‑tier structure: entitlement rules in the Determination and monetary rules in delegated notifiable instruments.

"Authorised person" is a procedural concept. The Chief of Personnel may, by notifiable instrument, authorise a person to approve applications made under s 6 (s 10). That creates a two‑step chain: application goes to an authorised person, authorised persons are created by the Chief of Personnel, and the Chief of Personnel also sets monetary amounts. Thus the Determination centralises both monetary setting and approval authorisations in the office of the Chief of Personnel (ss 7(1)-(2), 10). It also permits an authorised person to approve out‑of‑time applications (s 6(3)), giving authorised persons discretion in administering deadlines.

"Other benefits" (s 9) introduces an exceptional‑circumstances exception to the otherwise prescriptive monetary rules. A payment may be made in respect of an ADF cadet, an officer or instructor in the ADF Cadets, or other adult volunteers assisting at a cadet activity, if a specified decision maker is satisfied there are exceptional circumstances. The list of decision makers is prescribed and includes the Chief of the Defence Force, Chief of Personnel, and commanders or directors with cadet responsibilities (s 9(3)). Amounts under this exceptional route are set by the decision maker (s 9(2)), not by the Chief of Personnel's notifiable instrument. The Determination therefore splits standard cases (rates by Chief of Personnel instrument) and exceptional cases (rates by specified senior officers).

The instrument also contemplates recovery of amounts paid where no expense is in fact incurred; payments in those cases are a debt due to the Commonwealth and may be recovered by court action (s 8). The legal mechanism is straightforward: a payment made under s 7 that did not correspond to an incurred expense creates a Commonwealth debt.

Procedural timing is a central concept. Applicants must apply in writing at or before the end of the calendar month following the calendar month in which participation or the expense occurred (the "relevant calendar month") (s 6(2)). This timing rule interacts with the authorised person's discretion in s 6(3) to allow late applications. The Determination also permits the Chief of Personnel to determine "other matters" in connection with eligibility by notifiable instrument (s 6(4)), preserving administrative flexibility to set supporting documentation requirements, assessment criteria, or further procedural rules, although none are specified in the text.

Finally, the instrument uses the notation of schedules to amend or repeal earlier instruments and to give effect to other instrument items (s 5). In Schedule 1 the 2022 Determination is repealed. The form and language of the Determination make clear that it is a framework instrument: short, with delegated detail to notifiable instruments and decision makers.

Primary affected persons under this Determination are officers and instructors in the ADF Cadets, ADF cadets themselves and other adult volunteers assisting at ADF Cadets activities, but the scope differs by provision. Section 6(1) gives officers and instructors in the ADF Cadets an express entitlement to apply for daily amounts or expense payments in respect of their participation. Section 9 expands eligibility in cases of exceptional circumstances to include ADF cadets and other adult volunteers assisting at an ADF Cadets activity, subject to a decision maker being satisfied that exceptional circumstances exist. Thus ordinary claims are limited to officers and instructors; extraordinary claims may cover cadets and other adult volunteers.

Who pays is implicitly the Commonwealth, because s 8 expressly treats mispaid amounts as debts due to the Commonwealth and recoverable by action in a court. The instrument does not specify an appropriation clause but places payment authority within the Defence statutory framework under subsection 62B(1) of the Defence Act 1903 (s 3) and identifies senior Defence officers as decision makers for exceptional payments (s 9(3)). Decision makers and authors of notifiable instruments are internal Defence offices: Chief of Personnel, Chief of the Defence Force, Head Joint Support Services Division, Director‑General Australian Navy Cadets, Commander Australian Army Cadets, Director‑General Cadets - Air Force (s 9(3)). Those officers will determine who benefits under exceptional payments and will also make notifiable instruments setting ordinary payment amounts and authorisations (ss 7(1)-(2), 10).

Authorised persons , those who receive and approve written applications under s 6 , are identified only by the method of appointment: they are persons authorised by the Chief of Personnel by notifiable instrument (s 10). The identity of authorised persons therefore depends on later administrative action, not the Determination itself. This creates an intermediate level of affected parties: potential applicants must know who is an authorised person to lodge an effective application.

Third parties are affected indirectly. Employers of ADF Cadets officers and instructors may experience labour scheduling impacts if staff participate in cadet activities; however the Determination addresses payment for participation and expenses rather than employer obligations. The Commonwealth is exposed to contingent fiscal costs because the Chief of Personnel sets amounts and may extend payments to cadets and volunteers in exceptional cases (ss 7(1)-(2), 9(1)-(2)). Individuals who wrongly receive payments must repay them, and the Commonwealth may pursue recovery in court (s 8).

Legal and administrative actors are affected. Courts may be engaged for debt recovery (s 8). Internal Defence finance and personnel sections will have roles in drafting and publishing notifiable instruments, determining eligibility logistics under s 6(4), and setting up processes for authorised persons and applications.

Finally, because the Determination repeals the 2022 Determination (Schedule 1), persons and administrators who relied on the 2022 instrument must transition to the 2023 instrument’s rules from commencement (ss 1-2, Schedule 1). The Determination identifies who may set rates and approve payments, and so affects internal Defence governance around cadet activity payments.

The Determination creates a modest set of operative rights and administrative duties. Rights created: an officer or instructor in the ADF Cadets has a right to apply, in writing, to an authorised person for (a) a daily amount, or (b) an expense that has been, or will be, incurred in respect of participation in ADF Cadets activities (s 6(1)). The right is procedural: it is the right to make a written application for payment; approval is subject to the authorising framework (s 6).

Duties on applicants are minimal in the text but implicit. An applicant must provide a written application within a defined timetable: at or before the end of the calendar month following the calendar month in which the participation or expense occurred, unless an authorised person approves a later application (s 6(2)-(3)). The Determination does not prescribe evidentiary requirements or form, but s 6(4) allows the Chief of Personnel to determine other matters connected to eligibility by notifiable instrument, which may impose further documentary or procedural duties.

Duties on Defence officers include: the Chief of Personnel must set daily amounts and expense ceilings by notifiable instrument (s 7(1)-(2)); the Chief of Personnel may authorise persons to approve applications (s 10); and specified senior officers may make exceptional payments when satisfied of exceptional circumstances (s 9(1)-(3)). The Determination does not require publication of notifiable instruments within the text, but the repeated use of notifiable instruments as the mechanism for monetary and delegatory decisions places a duty on those offices to issue such instruments for the payment regime to operate.

The right to exceptional payments is discretionary, not entitlement‑based. A person (including a cadet, officer/instructor, or other adult volunteer) is eligible for a payment in respect of such persons only if a listed decision maker is satisfied there are exceptional circumstances in connection with participation (s 9(1)). The decision maker then sets the payment amount (s 9(2)-(3)). This creates a discretionary duty to assess and, where justified, make payments in extraordinary circumstances , but not a guaranteed right to payment.

Recovery duties are specific: if an amount paid under s 7 corresponds to an expense that was not, in fact, incurred, the payment is a debt due to the Commonwealth and may be recovered by action in a court of competent jurisdiction (s 8). That imposes a legal consequence on recipients and a procedural obligation on Commonwealth agencies to pursue recovery if they choose.

The Determination also enables administrative duties to be imposed by follow‑on instruments. Section 6(4) permits the Chief of Personnel to determine other matters in connection with eligibility by notifiable instrument, and these "other matters" will create duties for applicants (for example, to provide receipts) and duties on authorised persons (for example, to apply assessment criteria). The instrument itself leaves those details to the notifiable instrument stage.

In sum, the Determination confers a procedural right to apply for payments for officers and instructors, a discretionary exceptional route for cadets and volunteers, decisive control of monetary amounts and delegations in the Chief of Personnel via notifiable instruments, and a recovery mechanism where payments are not supported by actual expenses.

The Determination does not create criminal offences or administrative pecuniary penalties. Its enforcement mechanism is civil: recovery of improperly paid sums by the Commonwealth. Section 8 is the operative enforcement clause. It declares that if an amount is paid under section 7 and the expense is not in fact incurred, then the amount is a debt due by the person to the Commonwealth and may be recovered by action in a court of competent jurisdiction (s 8). That is a civil remedy, not a punitive statutory fine.

There is no express administrative penalty or sanction for false statements or fraudulent applications within the text of the Determination. The instrument does not prescribe disciplinary processes or criminal referrals where an applicant knowingly claims for expenses not incurred. However, the recovery mechanism in s 8 leaves open conventional civil remedies available to the Commonwealth and does not exclude other remedies available at law. The Determination does not state that the civil recovery in s 8 is the exclusive remedy, but it does not specify additional enforcement channels either.

Enforcement responsibility is implied rather than stated. The Commonwealth is the beneficiary of debt recovery, and courts are the forum for recovery actions (s 8). Practical enforcement requires the Defence department to identify mispayments, seek recovery, and litigate where necessary. The instrument does not detail internal investigative or recovery procedures, nor does it require particular administrative steps before court action.

For exceptional payments under s 9, the Determination confers discretion on named senior officers to determine eligibility and amount. It does not provide appeal or review rights in the text of the Determination. The Determination likewise does not specify whether decisions made under it are subject to merits review, administrative law review, or internal review, nor does it specify time limits for internal review processes. That leaves potential review pathways to general administrative law (for example, judicial review) or to Defence internal review mechanisms where they exist, but the Determination itself is silent on review or internal oversight.

The Chief of Personnel’s use of notifiable instruments to set rates and authorisations (ss 7(1)-(2), 10) may produce administrative documents that in practice are subject to separate legislative instrument rules or Defence administrative practice; however the Determination does not state whether those notifiable instruments are subject to third‑party review or parliamentary oversight within the instrument itself.

In short, enforcement under the Determination is primarily a civil recovery mechanism for amounts paid without corresponding expenses, exercised through courts. There are no express criminal penalties, specified administrative sanctions, or internal review requirements contained in the Determination text.

The Determination is made under subsection 62B(1) of the Defence Act 1903 (s 3). That parent statutory authority situates the Determination within the broader Defence statutory framework. The Determination defines "Act" as the Defence Act 1903 (s 4), showing that it is meant to be read as an instrument under that Act. The Determination repeals the 2022 Determination (Schedule 1), so it directly replaces the earlier instrument and governs payments from its commencement (ss 1-2, Schedule 1).

The instrument repeatedly employs "notifiable instrument" as the procedural mechanism for setting monetary amounts and authorising persons (ss 7(1)-(2), 6(4), 10). The Determination does not define "notifiable instrument" within its text, but the phrase carries administrative meaning: it denotes a subordinate instrument that must be notified to the relevant executive or register. The Determination does not specify whether those notifiable instruments are legislative instruments subject to the Legislation Act 2003 or another regime; that interaction must be determined by reference to the parent Act or Defence administrative practice. The Determination itself does not resolve whether the notifiable instruments attract parliamentary oversight or disallowance.

Civil recovery under s 8 interacts with general Commonwealth debt recovery law and civil procedure rules. Section 8(1)(b) expressly allows recovery by action in a court of competent jurisdiction, so ordinary rules of civil procedure, limitation periods, and defences under general law will apply. The Determination does not alter or displace criminal law; it does not create offences, but fraudulent representations in seeking payment might trigger separate criminal liability under other Commonwealth statutes, though the Determination does not state that, so any such interaction would have to be established under the relevant criminal statutes and evidence.

The Determination is silent about workers compensation, taxation or social security interactions. Payments described as "daily amounts" or expense reimbursements could have tax consequences or intersect with other Commonwealth payments, but the Determination does not address tax treatment or offsets. Practitioners should consider whether amounts paid under the Determination are assessable to recipients under the taxation law, or whether they affect means‑tested benefits, but those issues are governed by the relevant taxation and social security laws rather than the Determination itself.

Administrative law remedies may apply to decisions under the Determination. Decisions made in the exercise of statutory powers, such as determining eligibility, setting amounts by notifiable instrument, or making exceptional payments, could be subject to judicial review if they are amenable to review (for example, jurisdictional error, procedural fairness, or unreasonableness). The Determination does not exclude review or set out privative clauses. The precise reviewability will depend on the character of each decision and on general administrative law principles.

Finally, internal Defence policy and procedural documents are likely to be materially relevant. Section 6(4) expressly allows the Chief of Personnel to determine other matters connected to eligibility by notifiable instrument. Those internal instruments will shape application forms, evidence requirements, delegations and operational detail, and will determine how the Determination interacts in practice with other Defence procedures and employment frameworks.

The Determination itself records its provenance and immediate amendment history. It is titled Defence (Payments to ADF Cadets) Determination 2023 (s 1). It is made by the Chief of the Defence Force and dated 1 December 2023 (cover page). The instrument commences on the day after registration (s 2). Its statutory authority is subsection 62B(1) of the Defence Act 1903 (s 3).

Schedule 1 records a single repeal: it repeals the Defence (Payments to ADF Cadets) Determination 2022 in full (Schedule 1, item 1). The text provides a mechanism for additional changes: section 5 provides that each instrument specified in a Schedule is amended or repealed as set out, and that other items in a Schedule have effect according to their terms (s 5). That confirms the instrument is intended to operate as an amending/replacing instrument in the series of Defence payments determinations.

The Determination delegates substantive monetary detail to notifiable instruments made by the Chief of Personnel (s 7(1)-(2)), and also authorises the Chief of Personnel to determine "other matters" in connection with eligibility by notifiable instrument (s 6(4)). Those notifiable instruments therefore constitute the most likely locus of future amendment to the actual payment rates or procedural rules without amending the Determination text itself.

There is no list of earlier amendments to the 2023 Determination within the text beyond the repeal of the 2022 Determination. Nor does the instrument include an express sunset, review clause, or automatic expiry date. Any future amendment to payment amounts, eligibility criteria or delegations will occur through further notifiable instruments or by replacing/amending the Determination itself.

Because the Determination is an exercise of power under the Defence Act 1903, its amendment or repeal may also occur when the Chief of the Defence Force or Chief of Personnel exercises the relevant powers under the Act. The Determination does not itself set an internal review schedule or require periodic reporting to Parliament, although ordinary legislative processes and administrative practices may require publication and notification of notifiable instruments.

Practically, the amendment history to watch for is: (a) notifiable instruments made by the Chief of Personnel establishing or changing daily rates and expense ceilings (s 7), (b) notifiable instruments by the Chief of Personnel establishing authorised persons and other eligibility matters (ss 6(4), 10), and (c) any subsequent Determinations that repeal or replace the 2023 Determination (Schedule 1). The Determination’s text thus centralises future change in delegated instruments rather than in repeated formal amendments to the Determination itself.

The text of the Determination contains no references to litigation, cases, or judicial treatment of its provisions. Because it is dated 1 December 2023 and repeals the 2022 Determination, it is recent and the instrument itself does not include any reported litigation history. The Determination does, however, create scenarios in which litigation could occur: for example, a dispute about whether an expense was "in fact incurred" for the purposes of s 8, or a contested decision concerning exceptional payments under s 9 where a decision maker refuses to be satisfied that exceptional circumstances exist. In those circumstances, courts could be asked to resolve questions of fact, jurisdiction, or legal interpretation arising under the Determination.

The instrument expressly contemplates court action for recovery of amounts paid where the expense was not incurred (s 8). That clause anticipates civil litigation initiated by the Commonwealth to recover funds, but the Determination itself does not describe any previous cases or judgments.

Because the Determination delegates significant discretion to notifiable instruments and to named decision makers, judicial review could be engaged for challenges to administrative decisions made under the Determination. Potential judicial review grounds could include jurisdictional error, failure to afford procedural fairness where applicable, or decisions made without evidence. The Determination does not identify privative clauses or exclude review rights; therefore affected persons might pursue judicial review of adverse decisions, although the text does not state that explicitly.

If litigation were to occur, the likely legal questions would include interpretation of "daily amount" (s 4), the scope of the Chief of Personnel's power to set amounts by notifiable instrument (s 7), the meaning of "exceptional circumstances" for s 9 payments, the lawfulness of authorisations made by notifiable instrument under s 10, and the proper application of s 8 recovery for sums not actually expended. Each of these issues would be resolved by the courts against the statutory text and applicable administrative law principles.

At the date of this instrument there is no litigation history recorded in the Determination text. Practitioners should therefore review subsequent case law and Defence administrative practice for any judicial decisions that interpret or apply the Determination’s provisions once disputes arise in practice.

Several practical risks and traps are embedded in the Determination’s short text. These are operational "gotchas" to watch for when advising clients or administering payments.

1. Tight application timing with limited textual flexibility. Ordinary applications must be made in writing at or before the end of the calendar month following participation or incurrence of the expense (s 6(2)). That timing is short for events late in a month. Although s 6(3) permits authorised persons to approve late applications, that discretion is held by authorised persons, not by applicants. Absent authorised persons exercising leniency, missed deadlines could forfeit entitlement to ordinary payments.

2. Monetary amounts not set in the Determination. The daily amount and expense ceilings are not in the Determination; they are set by notifiable instrument of the Chief of Personnel (s 7(1)-(2)). Practically, applicants and administrators must consult separate instruments to know entitlements. If a notifiable instrument has not been issued or is not readily accessible, the entitlement is uncertain. Reliance on oral or informal advice is risky because the Determination itself defers to published notifiable instruments.

3. Centralised discretion in the Chief of Personnel. The Chief of Personnel both sets monetary parameters by notifiable instrument and can authorise approving persons (ss 7(1)-(2), 10). That centralisation concentrates administrative control. The Determination provides no criteria for setting amounts or for selecting authorised persons; policy choices are therefore internal and discretionary.

4. Exceptional payments are discretionary and wide. Section 9 permits payments for cadets and other adult volunteers in "exceptional circumstances" where a listed decision maker is satisfied (s 9(1)-(3)). The Determination does not define "exceptional circumstances", leaving this to decision makers. This creates uncertainty for applicants and potential inconsistency across decision makers. It also permits senior officers to set amounts outside the Chief of Personnel’s notifiable instrumented ceilings, creating potential differentials between ordinary and exceptional outcomes.

5. Recovery is civil but may be litigated. If an expense is not actually incurred, the payment is a Commonwealth debt recoverable by court action (s 8). Recipients should be warned that recovery may include legal costs and court process. The Determination does not require administrative recovery steps, so claimants may receive demands for repayment without administrative appeal avenues specified in the instrument.

6. Lack of explicit evidentiary rules. The Determination leaves evidentiary and procedural details to notifiable instruments under s 6(4). Until those instruments are consulted, applicants do not know what proof of participation or expenses will be required, increasing the risk of rejected claims or later recovery demands.

7. Coverage differs by role. Ordinary claims are available only to officers and instructors (s 6(1)). Cadets and other adult volunteers are eligible only via the exceptional route (s 9(1)). Misunderstanding this distinction could lead to misplaced applications.

8. Interaction with other legal frameworks is unspecified. The Determination is silent on tax treatment, social security offsets, or industrial implications. Practitioners must assess these interactions under separate laws and advise recipients accordingly.

9. Delegation formalities absent in text. Authorised persons are appointed by notifiable instrument (s 10), but the Determination does not require publication or notice beyond the instrument’s own mechanisms. If authorisations are not communicated effectively, applicants may not know where to apply.

10. Repeal of 2022 Determination. The 2023 Determination repeals the 2022 Determination in full (Schedule 1). Administrators and claimants who rely on provisions or rates under the 2022 instrument must confirm transitional arrangements, if any, as the Determination does not set out transitional provisions.

Each of these "gotchas" flows directly from the Determination’s text. They implicate administrative practice, communication, and the need for accessible notifiable instruments and internal guidance. Absent those, affected persons face uncertainty about entitlements, evidentiary requirements, and remedies.

For officers and instructors seeking payments under the Determination, a practical compliance checklist follows, tied to the instrument’s provisions.

1. Know your eligibility: only officers and instructors in the ADF Cadets are expressly able to apply under s 6(1) for a daily amount or for an expense that has been, or will be, incurred. If you are a cadet or other adult volunteer, ordinary entitlement does not apply; you must seek an exceptional payment under s 9, which is discretionary.

2. Apply in writing and on time: applications must be made in writing to an authorised person at or before the end of the calendar month following the month in which participation or the expense occurred (s 6(2)). If the event occurred in January, the application must be lodged by the end of February unless the authorised person approves a later application (s 6(3)). To reduce risk, submit applications promptly and do not rely on authorised persons to grant late approvals.

3. Identify the authorised person: applications are to be made to an authorised person (s 6(1)). The Chief of Personnel appoints authorised persons by notifiable instrument (s 10). Before applying, confirm who is presently an authorised person via Defence publications or the relevant notifiable instrument. If unsure, seek written confirmation from your chain of command or Defence personnel office.

4. Provide suitable evidence: the Determination does not set evidentiary requirements in its text; the Chief of Personnel may determine "other matters" in connection with eligibility by notifiable instrument (s 6(4)). Anticipate that receipts, attendance lists, travel records, or official orders may be required. Keep originals and certified copies of receipts and contemporaneous records of participation.

5. Check applicable rates and ceilings: the daily amount and allowable expense amounts are set by notifiable instrument of the Chief of Personnel (s 7(1)-(2)). Before preparing a claim, obtain and read the relevant notifiable instrument to calculate entitlements and limits.

6. Exceptional circumstances route: if you are a cadet or other adult volunteer or if your circumstances fall outside the notifiable instrument ceilings, consider applying for a payment under s 9. That requires satisfaction by a named decision maker that "exceptional circumstances" exist (s 9(1)-(3)). Identify the appropriate decision maker (e.g. Chief of the Defence Force, Chief of Personnel, Head Joint Support Services Division, Director‑General Australian Navy Cadets, Commander Australian Army Cadets, Director‑General Cadets - Air Force) and be prepared to present a case explaining the exceptional circumstances and why standard rates are inadequate.

7. Avoid over‑claiming: if an amount is paid under s 7 and the expense is not in fact incurred, the payment becomes a debt due to the Commonwealth and may be recovered in court (s 8). Make conservative, well‑documented claims and verify expenditure before submitting applications.

8. Keep records for potential recovery actions: because s 8 allows court recovery, maintain records for at least the limitation period applicable to civil debt actions, plus any additional time necessary for internal Defence audit or review. Records should include the application, the authorised person’s approval, supporting receipts, bank statements and contemporaneous attendance records.

9. Seek internal guidance and copies of notifiable instruments: compliance relies heavily on notifiable instruments that set rates, authorisations and possibly evidentiary requirements (ss 6(4), 7(1)-(2), 10). Contact Defence personnel or finance sections to obtain the current instruments and internal guidance.

10. Consider external legal or tax advice: the Determination does not address tax treatment or interaction with social security or employment law. If payments are significant or if you receive other means‑tested benefits, obtain tax or social security advice to understand reporting and offset obligations.

11. If declined, consider review options: the Determination does not provide an internal review mechanism in its text. If an authorised person or decision maker refuses a claim, seek written reasons and advice on appeal, internal grievance, or judicial review options consistent with general administrative law principles.

12. Monitor for instrument updates: as the Chief of Personnel can change rates and authorisations by notifiable instrument (ss 6(4), 7(1)-(2), 10), periodically check for updated instruments to ensure ongoing compliance.

Following this checklist maps directly to the Determination’s text and reduces the main risks identified in the "Gotchas" section. The essential compliance levers are timely written application to an authorised person, documentary proof of incurred expense or participation, awareness of notifiable instruments setting amounts, and caution against claiming sums that might later be recoverable by the Commonwealth (s 8).