Defence Determination, Conditions of Service Amendment (Defence Regulation 2016 – consequential amendments) Determination 2018 (No. 26)

Administered by Department of Defence

Legislation au F2018L00820 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Defence Regulation 2016 – consequential amendments) Determination 2018 (No. 26)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Defence Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AIA Act). Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003. These instruments are also subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.

All instances where the Principal Determination incorporates by cross reference, provisions in the Defence Regulation 2016, the incorporation is as the Defence Regulation 2016 is amended from time to time.

This Determination amends the Principal Determination which sets out conditions of service for members of the Australian Defence Force (ADF).

The purpose of this Determination is make consequential amendments to the Principal Determination resulting from changes to Defence regulations. The Defence Regulation 2016 ["the new regulation"] repealed the Defence Force Regulations 1952, the Defence (Personnel) Regulations 2002 and the Defence (Prohibited Words and Letters) Regulations 1957 ["the former regulations"]. The new regulation has come about as a result of the changes to the Defence Act 1903 by Defence Legislation Amendment (First Principles) Act 2015, which implements recommendations made by the First Principles Review – Creating One Defence report to improve the overall operation of Defence and the ADF.

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 of this Determination provides that the Determination commences 12 July 2018.

Section 3 provides that the Determination has authority under section 58B of the Defence Act 1903.

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable Sections in the Schedule concerned, and any other Section in a Schedule to this instrument has effect according to its terms.

Schedules 1 to 6 amend the Principal Determination. The amendments are consequential in nature and do not change the policy outcomes.

Schedule 1 of this Determination amends various sections of the Principal Determination to update rules that incorporate the former legislation by reference and replace with the relevant section in the new regulations. Schedule 1 also amends cross reference notes that direct the reader to the former regulation.

  • Section 1 inserts section 1.3.29A into the Principal Determination, which provides a definition for the term 'initial minimum period of service', as it applies throughout the Principal Determination.
  • Section 2 omits and substitutes section 1.3.69 of the Principal Determination, which provides the definition of 'return of service obligation'. The amendment reflects the changes to service obligation rules set out in the new regulation.
  • Section 3 omits and substitutes section 1.3.76 of the Principal Determination, which provides the definition of 'training commitment' for the purpose of Reserve service. The amendment removes the reference to regulation 100 of the Defence (Personnel) Regulations 2002. Section 27 of the new regulation provide that members of the Reserves are bound to render service (including training periods) as required by the Chief of the Defence Force (CDF). A cross reference to the new provision has no legal effect, and is not included in this Determination. A guidance cross reference will be available on the Defence pay and conditions website after the commencement of this Determination at: http://www.defence.gov.au/PayAndConditions/default.asp.

  • Section 4 amends subsection 1.4.1.2 of the Principal Determination, which provides a reference to a rank in the Principal Determination is to an Army rank. The equivalent rank for Navy and Air Force are the same as the corresponding ranks set out in the former regulations. The list of ranks for member of the ADF was moved from the former regulations into the Defence Act. This amendment incorporates Schedule 1 of the Defence Act, as in force from time to time, into the Principal Determination. The Defence Act is available on the Federal Register of Legislation at www.legislation.gov.au.
  • Section 5 amends an example in paragraph 3.2.23.4.d of the Principal Determination, which helps the reader to understand what other matters may be relevant to periods of service for salary advancement purposes. The amendment omits the reference to regulation 16 of the former regulations (Determination of seniority). It is not replaced with a new reference as there is no similar provision under the new regulation.
  • Section 6 amends paragraph 3.2.38.c of the Principal Determination, which sets out provisions relating to salary on reduction of rank. The cross reference note to the former regulations has been omitted. A guidance cross reference to the new regulation (Section 14, Reduction in rank) will be available on the Defence pay and conditions website after the commencement of this Determination at: http://www.defence.gov.au/PayAndConditions/default.asp.
  • Section 7 amends paragraph 3.2.46.4.b by removing the cross reference note which referred to the repealed Defence (Personnel) Regulations 2002.
  • Sections 8 to 17 amend various sections of Chapter 3 Part 5 of the Principal Determination, which sets out a range of retention and completion bonuses. Many of the bonuses provide that a member is not eligible if they have not completed their initial minimum period of service or they have a return of service obligation. Sections 8, 10, 11, 13, and 14 provide that a member's initial minimum period of service is set at the time of their appointment or enlistment. Sections 8, 9, 12, 15, 16 and 17 remove references to the former regulations and amends to align with the 'return of service obligation' definition inserted by Schedule 1 section 2 of this Determination. In some instances the cross references have no legal effect and will therefore be available as guidance on the Defence pay and conditions website after the commencement of this Determination at: http://www.defence.gov.au/PayAndConditions/default.asp.
  • Section 18 omits two non-examples from paragraph 3.5.97.a of the Principal Determination. The paragraph provides a partial payment of a bonus to a member who fails to complete the required period for the bonus if it is beyond the member's control that their service ceased. The non-examples have no legal effect and will therefore be available as guidance on the Defence pay and conditions website after the commencement of this Determination at: http://www.defence.gov.au/PayAndConditions/default.asp.
  • Section 19 omits and substitutes paragraph 3.5.97.b of the Principal Determination, which sets out the circumstances when a member may be eligible for a partial payment of a bonus under the Army – targeted rank and employment category completion bonus. The amendment removes a cross reference note to the former regulations and replaces it with a cross reference note to the new regulation. The sentence has also been rewritten to clarify that a member's service is terminated rather than a member being terminated. 
  • Section 20 omits and substitutes paragraph 3.6.4.c of the Principal Determination, which sets out a list of liabilities that if any apply to the member, an agreed period under a deliberately differentiated offer cannot commence. The amendment removes references to the former regulations and, where appropriate, replaces it with a reference to the new regulation.
  • Section 21 omits and substitutes subsection 3.6.5.1 of the Principal Determination, which sets out circumstances the CDF must consider when deciding that a member is to be given a deliberately differentiated offer. The circumstances at paragraphs a and b are merged into paragraph a. The amendment also removes references to the former regulations.
  • Sections 22, 27 and 28 amend paragraph 4.9.6.1.c and subsection 7.6.57.3 of the Principal Determination, to update the redress of grievance provisions from Part 15 of the Defence Force Regulations 1952 to Part 7 of the Defence Regulation 2016.

  • Sections 23, 24, 29 and 30 omit references to regulation 58E of the former regulations. A cross reference to section 49 of the new regulation (same provision as the former regulations) is not included in this Determination because it has no legal effect. Guidance cross references will be available on the Defence pay and conditions website after the commencement of this Determination at: http://www.defence.gov.au/PayAndConditions/default.asp.
  • Section 25 omits the notes in subsection 5.3.8.1 of the Principal Determination, which contained administrative procedural advice for a member and a member's unit relating to the granting of medical absence. This information may be published as guidance on the Defence pay and conditions website: http://www.defence.gov.au/PayAndConditions/default.asp.
  • Section 26 amends paragraph 5.3.11.a of the Principal Determination, which provides a reference to regulation 58E of the former regulations. The paragraph is amended to refer to section 49 of the Defence Regulation 2016 (same provision as the former regulations).

Schedule 2 of this Determination amends various provisions of the Principal Determination that relate to a member's retirement age. The term 'compulsory retirement age' and provisions relating to the alteration and extension of a member's retirement age under the former regulations have been repealed. The new regulation provides for a member's period of service to end when they reach their retirement age. The new regulation also lists the retirement ages for members and provides that the CDF may, by written direction, allow a member to serve beyond their retirement age.

Section 1 omits the definition for 'compulsory retirement age' from section 1.3.14 of the Principal Determination and Section 2 inserts a new definition of 'retirement age' into section 1.3.68A. The new definition provides that the term has the same meaning as defined in the Defence Regulation 2016, as in force from time to time. The change to the section number is made in order to insert the definition in alphabetical sequence.

  • Section 3 amends section 2.3.2 of the Principal Determination, which provides the contents for the Part. Defence Determination 2016/,43, Special benefit payment – amendment, amended provisions in the Principal Determination under the management-initiated early retirement (MIER) scheme to reflect changes to Defence legislation. The changes were made to the MIER provisions, however, the Division title in the table of contents was not changed. Section 3 corrects this oversight.
  • Sections 4, 6, 7, 8, 9, 10, 11, 12, 13 and 16 omit the term 'compulsory retirement age' and replaces with 'retirement age'. They also amend various sections that discuss the extension of a member's retirement age. Under the new regulation, the CDF may allow a member to serve beyond their retirement age but this is no longer an extension of the member's retirement age.
  • Section 5 omits and substitutes subsection 3.5.36.1 of the Principal Determination, which provides for a partial payment to a member in specific circumstances for the Navy – Electronics Technical (junior sailor) bonus. The subsection is redrafted to meet contemporary drafting standards and to be consistent with the wording in other bonuses that provide for partial payments. Paragraph 3.5.36.1.c has been amended to remove reference to a member discharging because they have reached compulsory retirement age. The new paragraph provides for a member whose service ends because they have reached their retirement age. Paragraph 3.5.36.1.d is reworded to reflect the wording in the new regulation where a member’s service is terminated because of redundancy.
  • Section 14 omits the definition of 'compulsory retirement age' from section 5.5.5 of the Principal Determination, which sets out definitions for the purpose of long service leave for members of the ADF. This definition is no longer required. The term 'retirement age' within Chapter 5 Part 5 has the same meaning as the definition that applies throughout the Principal Determination, as inserted by Schedule 2 Section 2 of this Determination.
  • Section 15 omits and substitutes subsection 5.5.28.1, which provides a list of reasons a member's service ends that entitle the member to a pro rata amount of long service leave when they have served for less than 10 years. The subsection is amended to change the language around termination, redundancy and retirement age, as a result of the new regulation. An example and a non-example are removed because they are no longer helpful to the reader.

 


Schedule 3 of this Determination amends Chapter 2 Part 3 Division 1 of the Principal Determination, which provides a redundancy payment to some members of the ADF. The provisions for redundancy payment under the Principal Determination rely on a Service Chief to declare a member redundant under regulations 68 or 83 of the former regulations. These provisions were not incorporated into the new regulation. However, the objective of these provisions is now achieved under paragraph 24(1)(b) of the new regulations, which provides a power of early termination of service if a member cannot usefully serve because of redundancy.

  • Section 1 omits and substitutes section 2.3.3 of the Principal Determination, which sets out the purpose of the redundancy benefit. This has been amended to align with the language used in the new regulation.
  • Section 2 omits and substitutes paragraph 2.3.4.a of the Principal Determination, which sets out who the Division applies to. The paragraph has been amended to provide that this Division applies to a member whose service has been terminated due to redundancy under the new regulation, rather than a member who is declared redundant.
  • Sections 3 and 4 amend section 2.3.5 of the Principal Determination, which provides the method of calculating the benefit provided to a member whose service is terminated because of redundancy. The amendments replace references to a member being declared redundant with a member's service being terminated.
  • Section 5 omits and substitutes section 2.3.6 of the Principal Determination, which provides that the section applies to a member who is made redundant and requests to cease service before the end of the notice period. Subsection 1 is reworded to reflect the new regulation, which provides a member's service is terminated because of redundancy. A cross reference to the relevant section of the new regulation is also provided. The section also provides a payment of the member's salary and Service allowance for the notice period (minimum 5 weeks) if the member requests their service end before the end of the notice period.
  • Section 6 omits and substitutes section 2.3.7 of the Principal Determination, which provides that a member who receives a payment because of redundancy must repay that amount if the member begins a further period of continuous full-time service that is not authorised by the Minister, within one year of ceasing to be a member. The amendments remove reference to 'redundancy' and provide that the member must repay the amount unless the CDF decides otherwise.

Schedule 4 of this Determination amends three sections of the Principal Determination that relate to ADF chaplains. Under the new regulation, chaplains are appointed as officers under section 12 but are not appointed a rank as in the case for other officers.

  • Section 1 omits and substitutes section 1.4.2 of the Principal Determination, which provides the classification levels for chaplains and their equivalent ranks for the purposes of providing conditions of service. Section 1 rewords the section to clarify that chaplains do not hold an actual rank and that the comparison to rank is only to establish their eligibility for certain benefits.
  • Sections 2 and 3 amend section 3.2.41 of the Principal Determination, which sets out provisions for increment advancement for chaplains and dental officers. These amendments make it clear that salary increments for chaplains are based on being placed into a Division or advancing to a higher division rather than being promoted to a higher rank.

Schedule 5 of this Determination substitutes paragraphs 3.5.14.1.b and 3.5.72.1.b of the Principal Determination. These paragraphs provide that members are not required to repay a bonus if they were transferred to the Reserves at their Service Chief's initiative. This decision now lies with the Chief of Defence Force under section 16 of the new regulation. Sections 1 and 2 amend the paragraphs to reflect this change.


Schedule 6 of this Determination amends various sections of the Principal Determination to remove references to 'managed-initiated early retirement'. Managed-initiated early retirement (MIER) was a scheme linked to alteration of service obligation under the former regulations. The scheme was repealed by the new regulations and replaced with a similar policy through Defence Determination 2017/7, Special benefit payment – amendment.

  • Sections 1, 2, 3 and 4 amend subsection 2.2.9.4 and omit and substitute section 2.2.10 and subsections 2.2.29.3 and 2.2.31.1, of the Principal Determination respectively. These provisions set out career transition benefits and levels of assistance for members of the ADF. These amendments provide that a member who has received a special benefit may be eligible for level 3 assistance and may have access to both career transition training and management coaching. These subsections were also restructured and amended to change the language around termination and redundancy, as a result of the new regulation and also discussed in this explanatory statement (at Schedule 3).
  • Section 4 also omits a table from section 2.2.10 of the Principal Determination, which provided a summary of the levels of assistance in the Career Transition Assistance Scheme. The table had no legal effective and will therefore be published as guidance on the Defence pay and conditions website: http://www.defence.gov.au/PayAndConditions/default.asp.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Consultation

No external consultation was undertaken in accordance with section 17 of the Legislation Act 2003 before this Determination was made as it is a minor or machinery nature and does not substantially alter existing arrangements. It changes the terminology used in the Principal Determination to reflect the new Defence regulations.

 

Authority:  Section 58B of the
Defence Act 1903


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Determination, Conditions of Service Amendment (Defence Regulation 2016 – consequential amendments) Determination 2018 (No. 26)

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Purpose

The purpose of this Determination is make consequential amendments to the Principal Determination resulting from changes to Defence regulations. The Defence Regulation 2016 ["the new regulation"] repealed the Defence Force Regulations 1952, the Defence (Personnel) Regulations 2002 and the Defence (Prohibited Words and Letters) Regulations 1957 ["the former regulations"]. The new regulation has come about as a result of the changes to the Defence Act 1903 by Defence Legislation Amendment (First Principles) Act 2015, which implements recommendations made by the First Principles Review – Creating One Defence report to improve the overall operation of Defence and the ADF.

Human rights implications

This Determination does not engage any applicable rights or freedoms. It aligns terminology and amends references to the Principal legislation following legislative amendments to the Defence Act and the repeal and remake of associated Defence regulations.

 

Conclusion

This Determination is compatible with human rights because it does not engage any applicable human rights or freedoms.

Elizabeth Anne Sisley, Acting Assistant Secretary People Policy and Employment Conditions

 

 

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.