Defence Force Retirement and Death Benefits Regulations 1973 (Cth)

Defence Force Retirement and Death Benefits Regulations 1973

Statutory Rules 1973 No. 260 as amended

made under the

Defence Force Retirement and Death Benefits Act 1973

This compilation was prepared on 1 January 2008

taking into account amendments up to SLI 2007 No. 348

Prepared by the Office of Legislative Drafting and Publishing,

Attorney‑General’s Department, Canberra

Contents

    1Citation [see Note 1]

  These Regulations may be cited as the Defence Force Retirement and Death Benefits Regulations 1973.

2Commencement [see Note 1]

• (1)

  Subject to subregulation (2), these Regulations shall be deemed to have come into operation on 1 October 1972.

• (2)

  Regulation 6 shall be deemed to have come into operation on 19 June 1973.

3Interpretation

 In these Regulations, unless the contrary intention appears:

Determination 0101 means Determination 0101, Salary of Permanent Force Members, made under section 58B of the Defence Act 1903, as in force from time to time as modified from time to time by determinations made under section 58H of that Act.

Determination No. 6 of 1992 means Determination No. 6 of 1992, Salaries, made under section 58H of the Defence Act 1903, as in force from time to time.

the Act means the Defence Force Retirement and Death Benefits Act 1973.

3APrescribed rate

• (1)

  For subsection 6BA (3) of the Act, the rate of $1 407.79 is prescribed.

  Indexation of the prescribed rate

• (2)

  On 1 July 2008, the amount mentioned in subregulation (1) is indexed in accordance with subregulation (3).

• (3)

  If the all groups consumer price index number for the weighted average of the 8 capital cities published by the Statistician in respect of the March quarter or September quarter of the half‑year immediately before the date of the indexation (A) exceeds the highest all groups consumer price index number for the weighted average of the 8 capital cities published by the Statistician in respect of the March quarter or September quarter of any earlier half‑year, not being a half‑year earlier than the half‑year that commenced on 1 July 2007 (B), the amount is increased, at the rate calculated in accordance with subregulation (4).

• (4)

  The rate is A – B expressed as a percentage of B.

• (5)

  On 1 January and 1 July in each year following 2008, the indexed amount in force immediately before that date is indexed in accordance with subregulation (3).

3BCalculating the lump sum payment

• (1)

  For subsection 6BA (3) of the Act, if the annual rate of pension is less than the prescribed rate determined by regulation 3A the spouse is instead entitled to a lump sum payment worked out in accordance with this regulation.

• (2)

  For the purposes of this regulation, a lump sum payment is worked out using the following formula:

  where:

  p meansthe annual rate of pension worked out in accordance with subsection 6BA (2) of the Act.

  a means the spouse’s age factor.

• (3)

  For subregulation (2), the spouse’s age factor is determined by:

  • (a)

    first — identifying the spouse’s age in the list of ages in column 1 of table 4A (for males) or table 4B (for females) in Part 4 of Schedule 1 to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003; and

  • (b)

    second — adopting the figure in column 6 of table 4A (for males) or table 4B (for females) in Part 4 of Schedule 1 to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, which is in the same row as the spouse’s age identified using paragraph (a), as the spouse’s age factor.

4Prescribed basic annual rate of pay

For the purposes of section 60 of the Act, the prescribed basic annual rate of pay applicable to a person who was, immediately before his death or retirement, a member of the scheme who was a contributing member is:

• (a)

  where the member was, immediately before his death or retirement, a member of the Air Force and died or retired on a day:

  • (i)

    during the period commencing on 1 October 1972 and ending on 7 February 1973 — $2,982.05;

  • (ii)

    during the period commencing on 8 February 1973 and ending on 30 August 1982 — a rate ascertained by adding the rate specified in subregulation 10 (1) of the Defence Force (Salaries) Regulations in its application in relation to service occurring on the day on which the member died or retired to the rate specified in Item 1 of Schedule 9 to the Defence Force (Salaries) Regulations in the application of that item in relation to service occurring on that day;

  • (iii)

    during the period commencing on 1 September 1982 and ending on 30 December 1984 — the rate specified in Schedule 7 to the Defence Force (Salaries) Regulations as the rate of salary at pay level 1 in relation to the rank of Private; or

  • (iv)

    during the period commencing on 31 December 1984 and ending on 3 June 1992 — the rate specified in Schedule 5 to Determination 0101 as the rate of salary at pay level 1 in relation to the rank of Private;

  • (v)

    after 3 June 1992 — the rate specified in Schedule 6 to Determination No. 6 of 1992 as the rate of salary at pay level 1 in relation to the rank of Private;

• (b)

  where the member was immediately before his death or retirement a member of the Navy or of the Army and died or retired on a day:

  • (i)

    during the period commencing on 1 October 1972 and ending on 8 February 1973 — $2,982.05;

  • (ii)

    during the period commencing on 9 February 1973 and ending on 30 August 1982 — a rate ascertained in accordance with subparagraph (a) (ii);

  • (iii)

    during the period commencing on 1 September 1982 and ending on 30 December 1984 — a rate ascertained in accordance with subparagraph (a) (iii); or

  • (iv)

    during the period commencing on 31 December 1984 and ending on 3 June 1992 — the rate referred to in subparagraph (a) (iv);

  • (v)

    after 3 June 1992 — the rate referred to in subparagraph (a) (v).

5Matters to be taken into account for the purposes of determining transfer value

In making a determination in respect of a person who has ceased to be an eligible member of the Defence Force for the purposes of section 74 of the Act, the Authority shall have regard to the following matters:

• (a)

  the amount of retirement pay ascertained in accordance with subsection 75 (3) of the Act that would, if retirement pay had, by virtue of the operation of subsection 75 (1) of the Act, been payable to that person under section 23 of the Act;

• (b)

  the value at the date of termination of the person’s service of the amount of retirement pay referred to in paragraph (a).

6Service not to be taken into account for the purposes of the definition of “period of previous contributory qualifying service”

 For the purposes of the application of the definition of “period of previous contributory qualifying service” in subsection 85 (1) of the Act to and in relation to an existing contributor:

• (a)

  a period:

  • (i)

    of service for pension served by the existing contributor prior to becoming a person to whom Part VIB of the previous Act applied; or

  • (ii)

    by which the period of service for pension of the existing contributor is, for the purposes of pension under the previous Act, deemed to be increased by virtue of subsection 82R (7) of the previous Act;

is not to be taken into account for the purposes of paragraph (a) of that definition; and

• (b)

  a period:

  • (i)

    in respect of which the existing contributor was not a contributor under Part IVA of the Superannuation Act 1922‑1924, or that Act as amended and in force from time to time before 2 July 1948; or

  • (ii)

    in respect of which the existing contributor was not a contributor under the previous Act;

 shall not be taken into account for the purposes of paragraph (b) of that definition.

7Determination of notional period of service

• (1)

  For the purposes of section 62 of the Act, a period determined by the Authority in relation to a person to whom subsection 62 (1) or (2) of the Act applies shall be treated as a notional period of service under the previous Act in relation to that person.

• (2)

  The Authority shall, before making a determination under subregulation (1), have regard to:

  • (a)

    the nature of any benefit paid to the person in respect of whom the determination is to be made on his previous retirement;

  • (b)

    the amount of benefit paid to that person on his previous retirement; and

  • (c)

    the rates of retirement pay specified in Schedule 1 to the Act applicable to that person.

8Ascertaining amount of aggregate pay for the purposes of subsection 85 (2) of the Act

• (1)

  For the purposes of subsection 85 (2) of the Act, the Authority shall ascertain the amount that, for the purposes of Part X of the Act, is to be treated as the amount of aggregate pay received by an existing contributor in respect of each part of his period of previous contributory qualifying service that is a constant pay period in accordance with the formula 14ab, where:

  ais the daily rate of pay applicable to him in respect of each day during the constant pay period; and

  bis the number of pay‑days that occurred during the constant pay period.

• (2)

  The Authority shall ascertain the daily rate of pay applicable to an existing contributor in respect of each day during his period of previous contributory qualifying service in accordance with this regulation.

• (3)

  In ascertaining the daily rate of pay applicable to an existing contributor in respect of a day, the Authority shall have regard to:

  • (a)

    the rank and pay of the existing contributor on that day;

  • (b)

    the basis on which contributions by the existing contributor on that day would have been assessed if the former scheme had been in operation on that day and the maximum daily rate of active pay applicable to him on that day under that scheme had been:

    • (i)

      where he made contributions under the Superannuation Act or the previous legislation in respect of that day — the rate of pay (calculated on a daily basis) applicable to him in respect of that day for the purposes of assessing those contributions or, where those contributions were assessed otherwise than in relation to such a rate of pay, an equivalent rate of pay; or

    • (ii)

      where he did not make contributions under the Superannuation Act or the previous legislation in respect of that day — the rate of pay (calculated on a daily basis) or equivalent rate of pay, that would have been applicable to him in respect of that day for the purposes of assessing his contributions in respect of that day if subparagraph (i) then applied to him;

  • (c)

    any election made by the existing contributor in respect of that day that modified the rate of pay for the purposes of determining contributions by him under the previous legislation;

  • (d)

    any refund that:

    • (i)

      was applicable to the existing contributor on that day; or

    • (ii)

      would have been applicable to the existing contributor on that day if the provisions relating to elections under the former scheme were in force on that day and he had not made an election that he would have been entitled to make under those provisions; and

  • (e)

    the maximum daily rate of active pay applicable to him on the date of commencement of the period of his full‑time service that was continuous with service on or after 1 October 1972.

• (4)

  In this regulation:

  constant pay period, in relation to an existing contributor, means a period during which the same daily rate of pay is applicable to him in respect of each day comprising that period.

  former scheme means the previous benefits scheme as in force on 30 September 1972.

  pay‑day means any of the following days:

  • (a)

    21 September 1972;

  • (b)

    the first day of each consecutive period of 14 days preceding 21 September 1972;

  period of previous contributory qualifying service has the same meaning as in Part X of the Act.

9Prescribed payments for the purposes of subsection 89 (6) of the Act

 For the purposes of subsection 89 (6) of the Act, the following payments are payments of a prescribed kind:

• (a)

  a payment of a gratuity under section 40, 42, 52 or 56A of the previous Act;

• (b)

  a payment of a gratuity under subsection 41 (3) or section 47 of the Defence Forces Retirement Benefits Act 1948 as amended and in force from time to time before 14 December 1959;

• (c)

  a payment of a gratuity under section 6 or paragraph 7 (1) (a) of the Defence Forces Special Retirement Benefits Act 1960;

• (d)

  a payment of deferred pay or interest on deferred pay under regulation 51, 74, 151 or 153 of the Naval Financial Regulations;

• (e)

  a payment of a gratuity under regulation 158, 269 or 291A of the Naval Financial Regulations;

• (f)

  a payment of a gratuity by virtue of regulation 7 of the Naval Financial (Citizen Forces) Regulations;

• (g)

  a payment of a gratuity under regulation 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 200 or 200A of the Military Financial Regulations;

• (h)

  a payment of deferred pay or interest on deferred pay under regulation 546 or 547 of the Air Force Regulations;

• (i)

  a payment of a gratuity under regulation 636, 637, 638, 639, 640, 641, 642 or 643 of the Air Force Regulations; and

• (j)

  a payment of the nature of a payment referred to in paragraph (d), (e), (f), (g), (h) or (i), being a payment under legislation relating to conditions of service of members of the Defence Force other than the War Gratuity Act 1945‑1966.

Notes to the Defence Force Retirement and Death Benefits Regulations 1973

Note 1

The Defence Force Retirement and Death Benefits Regulations 1973 (in force under the Defence Force Retirement and Death Benefits Act 1973) as shown in this compilation comprise Statutory Rules 1973 No. 260 amended as indicated in the Tables below.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non-exempt legislative instruments to be registered on the Federal Register of Legislative Instruments. From 1 January 2005 the Statutory Rules series ceased to exist and was replaced with Select Legislative Instruments (SLI series). Numbering conventions remain the same, ie Year and Number.

Table of Instruments

Year and number	Date of notification in Gazette or FRLI registration	Date of commencement	Application, saving or transitional provisions
1973 No. 260	12 Dec 1973	R. 6: 19 June 1973 Remainder: 1 Oct 1972
1974 No. 220	27 Nov 1974	27 Nov 1974	—
1976 No. 63	6 Feb 1976	9 Feb 1976	—
1979 No. 91	14 June 1979	14 June 1979	—
1984 No. 186	10 Aug 1984	30 Aug 1982	—
1984 No. 395	5 Dec 1984	31 Dec 1984	—
1985 No. 324	5 Dec 1985	R. 2: 30 May 1985 R. 3: 31 Dec 1984 Remainder: 5 Dec 1985	—
as amended by
1986 No. 104	23 May 1986	23 May 1986	—
1995 No. 50	29 Mar 1995	4 June 1992	—
2007 No. 348	19 Oct 2007 (see F2007L04118)	1 Jan 2008	—

Table of Amendments

ad. = added or inserted  am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
R. 1................................................	am. 2007 No. 348
R. 3................................................	rs. 1984 No. 395
am. 1985 No. 324; 1995 No. 50
R. 3A.............................................	ad. 2007 No. 348
R. 3B.............................................	ad. 2007 No. 348
R. 4....................................................... .......................................................	am. 1976 No. 63; 1979 No. 91; 1984 Nos. 186 and 395; 1985 No. 324; 1995 No. 50
R. 8..........................................	ad. 1974 No. 220
R. 9................................................	ad. 1974 No. 220