Defence Legislation Amendment Act (No. 2) 1990 (Cth)

Defence Legislation Amendment Act (No. 2)

1990

No. 21 of 1991

An Act to amend certain Acts relating to Defence, and for

related purposes

[Assented to 5 February 1991]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Defence Legislation Amendment Act (No. 2) 1990.

Commencement

2.(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2) Sections 10, 11, 12, 13, 16, 17 and 18 are taken to have commenced on 1 July 1990.

PART 2—AMENDMENT OF THE CONTROL OF NAVAL

WATERS ACT 1918

Principal Act

3. In this Part, “Principal Act” means the Control of Naval Waters Act 19181.

Interpretation

4. Section 2 of the Principal Act is amended by omitting “section 54 of the Lands Acquisition Act 1955” from the definition of “defence land” in subsection (1) and substituting “section 122 of the Lands Acquisition Act 1989”.

PART 3—AMENDMENTS OF THE DEFENCE ACT 1903

Principal Act

5. In this Part, “Principal Act” means the Defence Act 19032.

General powers for defence purposes

6. Section 63 of the Principal Act is amended by omitting from subsection (1) paragraphs (b), (c), (d), (da), (db) and (e).

Salvage claims by crew of Naval ships

7. The final subsection of section 117a of the Principal Act inserted by section 18 of the Defence Legislation Amendment (No. 2) Act 1988 is renumbered as subsection (4).

8. After section 122 of the Principal Act the following section is inserted:

Taxation consequences of disposals of assets to defence companies

“122aa. (1) This section applies where the Commonwealth disposes, or disposed, of an asset to a company and all of the following conditions are satisfied:

(a) the company is:

(i) Australian Defence Industries Pty Ltd; or

(ii) Aerospace Technologies of Australia Pty Ltd;

(b) the disposal is under a scheme:

(i) for the reorganisation of defence-related activities; and

(ii) associated with the establishment of the company;

(c) the asset was acquired by the Commonwealth before 20 September 1985;

(d) before 20 September 1985, the asset was used, or intended for use, for defence-related purposes;

(e) the disposal took place after 7 October 1987.

“(2) For the purposes of Part IIIa of the Income Tax Assessment Act 1936, the company is taken to have acquired the asset before 20 September 1985.

“(3) In calculating the depreciation (if any) allowable to the company under section 54 of the Income Tax Assessment Act 1936 in respect of the asset, the depreciated value of the asset to the company at the time of the acquisition of the asset is the amount that would have been the depreciated value to the Commonwealth immediately before that time if:

(a) the Commonwealth had been a taxpayer; and

(b) the asset had been used by the Commonwealth exclusively for the purpose of producing assessable income; and

(c) the following sections had never been applicable:

(i) the repealed sections 57ah and 57al of the Income Tax Assessment Act 1936;

(ii) those sections as they continue to apply in spite of their repeal by the Taxation Laws Amendment Act (No. 4) 1988.

“(4) An expression used in subsection (1) or (2) of this section and in Part IIIa of the Income Tax Assessment Act 1936 has the same meaning in the subsection concerned as it has in that Part.

“(5) Section 170 of the Income Tax Assessment Act 1936 does not prevent the amendment of an assessment for the purpose of giving effect to this section.”.

PART 4—AMENDMENT OF THE DEFENCE FORCES

RETIREMENT BENEFITS ACT 1948

Principal Act

9. In this Part, “Principal Act” means the Defence Forces Retirement Benefits Act 19483.

Pension on death of member

10. Section 55 of the Principal Act is amended:

(a) by inserting in paragraph (1) (b) “, as indexed in accordance with subsection 84c (2),” after “$312 per annum”;

(b) by inserting in subsection (2) “, as indexed in accordance with subsection 84c (2),” after “$5,000 per annum”.

Pension on death of pensioner

11. Section 57 of the Principal Act is amended:

(a) by inserting in paragraph (1) (b) “, as indexed in accordance with subsection 84c (2),” after “$312 per annum”;

(b) by inserting in subsection (4) “, as indexed in accordance with subsection 84c (2),” after “$5,000 per annum”.

Pensions payable in respect of orphans

12. Section 58 of the Principal Act is amended by inserting in subsection (1) “, as indexed in accordance with subsection 84c (2),” after “$5,000 per annum”.

Increases in children’s pensions

13. Section 84c of the Principal Act is amended by adding at the end the following subsections:

“(2) 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 of the year immediately preceding a prescribed year 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 of any earlier year, not being a year earlier than the year that commenced on 1 July 1985:

(a) paragraphs 55 (1) (b) and 57 (1) (b) have effect as if, for the amount of $312, there were substituted; and

(b) subsections 55 (2), 57 (4) and 58 (1) have effect as if, for the amount of $5,000, there were substituted;

on the first day of that prescribed year, an amount calculated by adding to the existing amount the prescribed percentage of the existing amount.

“(3) For the purposes of the application of subsection (2) to a provision specified in that subsection, the existing amount is:

(a) in relation to the prescribed year that commenced on 1 July 1990:

(i) in the case of paragraph 55 (1) (b) or 57 (1) (b)—$312; and

(ii) in the case of subsection 55 (2), 57 (4) or 58 (1)—$5,000;

(b) in relation to any subsequent prescribed year—the amount that, because of a previous application or previous applications of subsection (2), is taken to have been substituted, or last substituted, for the amount specified in that provision.”.

PART 5—AMENDMENT OF THE DEFENCE FORCE

RETIREMENT AND DEATH BENEFITS ACT 1973

Principal Act

14. In this Part, “Principal Act” means the Defence Force Retirement and Death Benefits Act 19734.

15. After section 41 of the Principal Act the following section is inserted in Division 1:

Commutation of widow’s pension

“41a. (1) Where:

(a) a person is, or becomes, entitled to a pension under this Division because the person is the widow of:

(i) a contributing member who died on or after the commencement of the Defence Legislation Amendment Act (No. 2) 1990; or

(ii) a contributing member who died on or after 15 October 1990 but before the commencement of the Defence Legislation Amendment Act (No. 2) 1990; and

(b) in the case of a contributing member referred to in subparagraph (a) (ii)—that member is a member of a prescribed class of deceased spouses;

the person (in this section called the ‘elector’) may, by notice in writing given to the Authority, elect to commute a portion of his or her pension in accordance with this section.

“(2) A notice given by an elector under subsection (1) must:

(a) specify the amount that is to be payable to him or her by virtue of the commutation (in this section called the ‘commuted amount’); and

(b) be given not later than one year after the elector becomes entitled to the pension.

“(3) The amount referred to in subsection (2) must not exceed an amount calculated in accordance with the following formula:

Annual Rate of Pay × 2

where:

‘Annual Rate of Pay’ is the annual rate of pay at the time of death of the deceased contributing member who was, immediately before his or her death, the spouse of the elector.

“(4) Where an elector makes an election under this section:

(a) the Commonwealth must pay to the elector the commuted amount; and

(b) the amount per annum of the pension payable to the elector, on and after the day on which the election takes effect, is the amount per annum that, but for this paragraph, would be payable to the elector, reduced by an amount calculated by dividing the commuted amount by 25.

“(5) For the purposes of this section, an election is taken to have been made, and takes effect, on the day on which the notice of election is received by the Authority.”.

Eligible children other than orphans

16. Section 42 of the Principal Act is amended by inserting in subsections (2) and (3) “, as indexed in accordance with subsection 98b (5a),” after “$312 per annum”.

Eligible orphans

17. Section 43 of the Principal Act is amended by inserting in subsections (2) and (3) “, as indexed in accordance with subsection 98b (5a),” after “$5,000 per annum”.

Increase in certain pensions

18. Section 98b of the Principal Act is amended:

(a) by inserting in subsection (3) “and subsection (5a)” after “subsection (2)”;

(b) by inserting after subsection (5) the following subsections:

“(5a) 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 of the year immediately preceding a prescribed year 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 of any earlier year, not being a year earlier than the year that commenced on 1 July 1985, sections 42 and 43 have effect, in that prescribed year, as if:

(a) for the amount of $312 specified in subsections 42 (2) and (3); and

(b) for the amount of $5,000 specified in subsections 43 (2) and (3);

there were substituted, on the first day of that prescribed year, an amount calculated by adding to the existing amount the prescribed percentage of the existing amount.

“(5b) For the purposes of the application of subsection (5a) to a provision specified in that subsection, the existing amount is:

(a) in relation to the prescribed year that commenced on 1 July 1990;

(i) in the case of subsection 42 (2) or (3)—$312; and

(ii) in the case of subsection 43 (2) or (3)—$5,000; and

(b) in relation to any subsequent prescribed year—the amount that, because of a previous application or previous applications of subsection (5a), is taken to have been substituted, or last substituted, for the amount specified in that provision.”.

PART 6—AMENDMENT OF THE DEFENCE HOUSING

AUTHORITY ACT 1987

Principal Act

19. In this Part, “Principal Act” means the Defence Housing Authority Act 19875.

Reimbursement of cost of complying with directions

20. Section 32 of the Principal Act is amended by omitting from paragraph (2) (c) “foregoing” and substituting “forgoing”.

PART 7—AMENDMENT OF THE NAVAL DEFENCE ACT 1910

Principal Act

21. In this Part, “Principal Act” means the Naval Defence Act 19106.

Repeal of section 41

22. Section 41 of the Principal Act is repealed.

NOTES

1. No. 28, 1918, as amended. For previous amendments, see No. 93, 1966; No. 216, 1973; No. 37, 1976; and No. 8, 1978.

2. No. 20, 1903, as amended. For previous amendments, see No. 12, 1904; No. 15, 1909; Nos. 30 and 37, 1910; No. 15, 1911; No. 5, 1912; No. 36, 1914; No. 3, 1915; No. 36, 1917; Nos. 16 and 47, 1918; No. 1, 1927; No. 50, 1932; No. 45, 1934; Nos. 13, 38, 70 and 74, 1939; No. 4, 1941; No. 11, 1945; No. 78, 1947; No. 35, 1948; No. 71, 1949; No. 80, 1950; Nos. 19 and 59, 1951; No. 98, 1952; No. 20, 1953; No. 72, 1956; No. 92, 1964; No. 51, 1965; No. 93, 1966; No. 33, 1970; No. 216, 1973 (as amended by No. 20, 1974); No. 96, 1975 (as amended by No. 164, 1984); Nos. 4 and 20, 1977; Nos. 19 and 155, 1979; No. 132, 1979 (as amended by No. 80, 1982); No. 70, 1980; Nos. 61 and 178, 1981; No. 80, 1982; No. 153, 1982 (as amended by No. 164, 1984); No. 39, 1983; Nos. 164 and 165, 1984; Nos. 65 and 193, 1985; No. 76, 1986; No. 65, 1987; and Nos. 67, 75, 87, 99, 100 and 104, 1988; and No. 41, 1989.

3. No. 31, 1948, as amended. For previous amendments, see No. 37, 1949; No. 73, 1950; No. 29, 1951; No. 93, 1952; No. 80, 1953; No. 20, 1954; No. 19, 1955; No. 24, 1956; No. 95, 1957; No. 46, 1958; No. 103, 1959; No. 67, 1962; No. 103, 1963; Nos. 25, 98 and 135, 1965; No. 70, 1966; Nos. 55, 56 and 128, 1968; No. 61, 1969; No. 34, 1970; No. 47, 1971; No. 82, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 96, 1975; Nos. 13 and 161, 1977; No. 36, 1978; Nos. 15 and 135, 1979; No. 92, 1981; Nos. 76 and 164, 1984; No. 65, 1985; No. 93, 1986; No. 65, 1987; No. 104, 1988; and No. 125, 1989.

4. No. 81, 1973, as amended. For previous amendments, see No. 59, 1974; No. 96, 1975; No. 33, 1976; Nos. 13 and 161, 1977; No. 36, 1978; Nos. 15 and 135, 1979; Nos. 61, 92 and 144, 1981; No. 164, 1984; No. 65, 1985; No. 93, 1986; No. 65, 1987; Nos. 100 and 104, 1988; and No. 125, 1989.

NOTES—continued

5. No. 101, 1987, as amended. For previous amendments, see No. 100, 1988; and No. 21, 1989.

6. No. 30, 1910, as amended. For previous amendments, see No. 16, 1911; No. 21, 1912; No. 45, 1918; No. 45, 1934; No. 35, 1948; No. 72, 1949; No. 14, 1952; No. 93, 1964; No. 53, 1965; No. 93, 1966; No. 24, 1968; No. 14, 1971; No. 216, 1973 (as amended by No. 20, 1974); No. 96, 1975 (as amended by No. 164, 1984); No. 133, 1979; No. 61, 1981; No. 153, 1982 (as amended by No. 164, 1984); No. 39, 1983; Nos. 164 and 165, 1984; No. 65, 1985; No. 76, 1986; No. 65, 1987; Nos. 100 and 105, 1988.

[Minister’s second reading speech made in—

Senate on 28 November 1990

House of Representatives on 20 December 1990