Malcolm Howie and Commonwealth Superannuation Corporation
[2013] AATA 114
•1 March 2013
[2013] AATA 114
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3812
Re
Malcolm Howie
APPLICANT
And
Commonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 1 March 2013 Place Perth The decision under review is affirmed.
.................[sgd]..........................................
S D Hotop, Deputy President
CATCHWORDS
DEFENCE – Defence Force Retirement and Death Benefits Scheme (DFRDBS) – Military Superannuation and Benefits Scheme (MSBS) – applicant retired from Australian Regular Army in July 2010 – applicant a recipient member of DFRDBS – applicant a member of Army Reserve – applicant undertook to render continuous full-time service (CFTS) with Australian Regular Army from 8 November 2011 to 7 March 2012 – applicant resumed CFTS on 8 November 2011 – applicant elected in writing not to become member of MSBS before 8 November 2011 – applicant did not communicate election to respondent before resuming CFTS on 8 November 2011 – applicant became member of MSBS on 8 November 2011 – applicant continued to receive retirement pay under DFRDBS in period from 8 November 2011 to 23 February 2012 – retirement pay under DFRDBS not payable to applicant in that period – amount of retirement pay under DFRDBS paid to applicant in that period recoverable by respondent – decision under review affirmed
LEGISLATION
Defence Act 1903 (Cth), s 4(1), s 30 and s 31
Defence Force Retirement and Death Benefits Act 1973 (Cth), s 3(1), s 5A(1), s 61B, s 61C and s 126
Military Superannuation and Benefits Act 1991 (Cth), s 6
CASES
Chapman v Defence Force Retirement and Death Benefits Authority (2001) 108 FCR 537
Re Gill and Commonwealth Superannuation Corporation [2012] AATA 876Re Marston and Defence Force Retirement and Death Benefits Authority (2011) 121 ALD 232
Sargent v ASL Developments Ltd (1974) 131 CLR 634
REASONS FOR DECISION
Deputy President S D Hotop
1 March 2013
Introduction
Malcolm Howie (“the applicant”) has applied to the Tribunal for review of a decision of
the Defence Force Case Assessment Panel (“DFCAP”) made on 3 August 2012 under s 102(1)(a) of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (“DFRDB Act”).
In its decision of 3 August 2012 the DFCAP confirmed a decision of a delegate of the Commonwealth Superannuation Corporation (“the respondent” or “CSC”), dated 2 March 2012, that the applicant had been overpaid “retirement pay” under the Defence Force Retirement and Death Benefits Scheme (“DFRDB Scheme”) in the amount of $8,386.99 in the period from 8 November 2011 to 23 February 2012 and that the amount of that overpayment was to be recovered from him by the CSC. In confirming that decision the DFCAP found that that overpayment had arisen because the applicant had ceased to be a member of the DFRDB Scheme on 8 November 2011 and had become a member of the Military Superannuation and Benefits Scheme (“MSB Scheme”) on that date because he had failed to make an election, under s 61B(3) of the DFRDB Act, not to become a member of the MSB Scheme before resuming full-time service as a member of the Army Reserve for a continuous period of less than 12 months.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T44, pp 1–174) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and the oral evidence of the applicant.
The Relevant Legislation
The Military Superannuation and Benefits Act 1991 (Cth)
Section 6 of the Military Superannuation and Benefits Act 1991 (Cth) (“MSB Act”) provides:
“6 Membership of Superannuation Scheme
(1) Subject to subsection (2), each of the following persons is, by force of this section, a member of the Scheme:
(a) a member of the Permanent Forces;
(b)a member of the Reserves who is rendering continuous full-time service under an undertaking to serve for a period of not less than 12 months;
(c)a member of the Reserves who is rendering continuous full-time service under an undertaking to serve for a period of less than 12 months unless that member has elected not to become a member of the Scheme under section 61B of the DFRDB Act.
(2)In spite of subsection (1), a person is not a member of the Scheme if the person is an eligible member of the Defence Force for the purposes of the DFRDB Act.”
The DFRDB ACT
The DFRDB Act relevantly provides:
“3 Interpretation
(1) In this Act, unless the contrary intention appears:
…
CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
date of commencement of the scheme means 1 October 1972.
…
eligible member of the Defence Force means:
…
but does not include:
(c) a person who, under section 5A, is excluded from this definition;
…
member of the scheme means a person who is, or at any time on or after the date of commencement of the scheme, has been, an eligible member of the Defence Force.
MSB scheme means the superannuation scheme established under the Military Superannuation and Benefits Act 1991.
…
recipient member means a member of the scheme who is entitled to retirement pay or invalidity pay, and includes:
(a)a member of the scheme who, but for the suspension of his or her invalidity pay under subsection 35(3) or 61D(2), would be entitled to invalidity pay; and
(b)a member of the scheme who, but for the suspension of his or her retirement pay under subsection 61C(1), would be entitled to retirement pay.
Reserve means:
(a)in relation to a member of the Navy – the Naval Reserve; and
(b)in relation to a member of the Army – the Army Reserve; and
(c) in relation to a member of the Air Force – the Air Force Reserve.
…
retirement pay means retirement pay payable under section 23.
…
service means service as a member of the Defence Force.
…
5A Persons excluded from definition of eligible member of the Defence Force
(1)Subject to subsection (2), a person who:
(a)becomes, on or after 1 October 1991, a member of the Defence Force; or
(b)being a member of a Reserve, commences on or after that day to render continuous full-time service for a period of not less than 12 months;
is excluded from the definition of eligible member of the Defence Force
in subsection 3(1).…
61B Election by recipient member intending to resume full-time service
(1) Where a person:
(a) who is a recipient member; or
(b) in respect of whom deferred benefits are applicable under section 78;
intends to resume full-time service:
(c) as a member of the Permanent Forces; or
(d)as a member of a Reserve for a continuous period of not less than 12 months;
the person must, before resuming service, in writing addressed to CSC, elect:
(e) to become a contributing member; or
(f) to become a member of the MSB scheme.
(2) Subsection (1) does not apply if the person has previously;
(a) made an election under that subsection; or
(b)made, under subsection (3), an election to become a member of the MSB scheme.
(3) A recipient member who:
(a)intends to resume full-time service as a member of a Reserve for a continuous period of less than 12 months; and
(b)has not previously made, under this section, an election to become a member of the MSB scheme;
must, before resuming service, in writing addressed to CSC, elect whether or not to become a member of that scheme.
61C Recipient member in receipt of retirement pay who becomes member of MSB scheme
(1)Where a recipient member in receipt of retirement pay becomes a member of the MSB scheme, payment of the member’s retirement pay is, subject to subsection (2), suspended.
(2)A suspension under subsection (1) ceases to have effect when the recipient member whose retirement pay has been suspended ceases to be a member of the MSB scheme.
…
126 Recovery of amounts payable to Commonwealth
…
(4)Where, for any reason (including the making of, or cancellation of, an election under this Act), an amount of benefit has been paid that is not payable, or has become not payable, the amount so paid may be recovered by CSC, on behalf of the Commonwealth, in a court of competent jurisdiction as a debt due and payable to the Commonwealth.
(5)Where, for any reason (including the making of, or cancellation of, an election under this Act), an amount of benefit has been paid that is not payable, or has become not payable, and the person to whom that amount was paid is receiving, or is entitled to receive, a benefit, that amount, or such part of that amount as CSC determines, may, if CSC in its discretion so directs, be recovered by deduction from that benefit.
(6)In subsections (4) and (5), benefit includes pension or other money payable under the previous legislation.”
THE FACTUAL BACKGROUND
The applicant retired from the Australian Defence Force – more specifically, the Australian Regular Army – with the rank of Warrant Officer, Class 2, on 4 July 2010, after 27 years’ service. By reason of that service, the applicant was entitled to “retirement pay” pursuant to s 23 of the DFRDB Act, and he thereby became a “recipient member”, as defined in s 3(1) of that Act.
On 25 October 2011 the applicant, as a member of the Army Reserve, signed a form of “Undertaking … to Render Continuous Full-time Service” with the Australian Regular Army for a period of 121 days from 8 November 2011 to 7 March 2012. In signing that form, the applicant made the following acknowledgments (inter alia):
“7. I acknowledge that it is my responsibility to elect a superannuation fund prior to undertaking the period of CFTS and I am aware that if an election is not made, I will become a member of MSBS.
8. I acknowledge that I have been informed that I should seek financial advice before making a superannuation election.”
In Part 2 of the form, to be completed by the “CFTS Unit”, it was indicated that (inter alia) “Superannuation fund election submitted”, and Part 2 was signed by the Unit Commander and dated 28 October 2011. (T26, pp 103-104)
On 8 November 2011 the applicant commenced continuous full-time service, being deployed with the Special Operations Task Group operating in Uruzgan Province, Afghanistan, and he completed that service on 7 March 2012.
The applicant completed a DFRDB Scheme “Election form for former DFRDB Scheme Members resuming Australian Defence Force full-time service” (form D100). At the commencement of the form the following instruction and information appear:
“You must complete this form and lodge it with DFRDB/Military Super BEFORE resuming continuous full-time service (CFTS) in the Australian Defence Force (ADF) as a member of the Permanent Forces or in the Reserves.
If you do not complete this form before resumption of service, you will become a Member of MilitarySuper. Membership of MilitarySuper is final and irreversible and applies to all future periods of continuous full-time service in the ADF. Please read the instructions sheet carefully before completing the form.” (original emphasis)
In Part C of that form, headed “Election under Section 61B(3) of the DFRDB Act”, the applicant, in response to the question “Do you elect to join MilitarySuper?”, indicated: “No”. The form is signed by the applicant and the “date signed” is stated as: “07/11/2011”. Part E of the form comprises the following:
“Lodgement
It is your responsibility to send this completed form to DFRDB/MilitarySuper before resumption of service in the ADF.
This form can be
posted to:PO Box 22
BELCONNEN ACT 2616
faxed to:(02) 6272 9616
You must also send a copy of this form to your pay unit before resumption of service.
Doing both of these things will help to ensure your election is valid, avoid possible overpayments and safeguard your entitlement to future benefits.” (original emphasis) (T26, pp 95-98)
On 8 March 2012 the applicant, following receipt of the CSC delegate’s letter of 2 March 2012 advising him of the overpayment of “retirement pay” under the DFRDB Scheme (see paragraph 2 above), sent an email to DFRDB as follows:
“…
Earlier today I spoke with a DFRDB representative reference a collection notice for overpayment of my DFRDB pension.
It was explained to me that the D100 form that I had completed did not arrive at your office through the Army system in regards to my pension.
I have completed four plus months on CFTS, completion date 07 March 2012 and received a letter dated 02 March 2012 form (sic) your office requesting payment for an overpayment of my pension.
As I am a DFRDB member and did not revert to MSBS at any point, I was shocked to receive your notice for payment.
I have contacted the ‘available’ relevant personnel that handled my CFTS application and it appears that during the change over / posting cycle for 2012 the out going Chief Clerk did not send my D100 form as I had requested.
As I did not deploy until the week after the main body, due to a hold up in my CFTS application and a mandatory pre-deployment training session in Sydney, it appears that the paperwork was not sent through to DFRDB.
I have faxed through my papers including the D100 form dated 08 (sic) Nov 2011. You will note that the date of the application cover note is 14 Nov 2011 after I deployed.
…” (T7, pp 17-18)
By email sent on 9 March 2012 a DFRDB officer replied to the applicant as follows:
“Thank you for your email dated 8 March 2012, regarding your D100 form.
Your email has been forwarded to the ComSuper Reconsideration area for a response.
I can confirm that we received your supporting documents by fax on 9 March 2012 and will also advise ComSuper Reconsiderations, of these.
…” (T7, p 15)
By letter dated 19 March 2012 a DFRDB officer wrote to the applicant as follows:
“I refer to your email, dated 8 March 2012, which has been accepted as a request for reconsideration of the overpayment of which you were advised by letter, dated 2 March 2012, in relation to the non-submission of a D100 form for your recent period of re-entry to the Defence Force.
The reconsideration process involves assembling all relevant available information of your case for submission to the Defence Force Case Assessment Panel (DFCAP), to whom the Commonwealth Superannuation Corporation (CSC) have delegated the power to reconsider a decision. DFCAP can decide whether to confirm or vary the decision.
Of particular note, is that as part of determining if a pattern has developed, which could possibly guide DFCAP, a re-examination of the membership of your prior periods of service will also be undertaken.
In deciding how to proceed in this matter you may wish to note the following:
·The DFRDB legislation sets out strict membership rules in relation to re-entering the ADF. In most circumstances, if a former ADF member resumes service or continues on a new engagement, an election needs to be made and received by ComSuper, before resuming service or the extension/new engagement commences, whether or not to become a member of the Military Superannuation and Benefits Scheme (MSBS).
·If no election is made and received by ComSuper before re-entry, a member automatically becomes a member of the MSBS for this and any subsequent periods of re-engagement. MSBS membership applies by operation of section 6 of the Military Superannuation and Benefits Act 1991 and is final and irreversible for every type or length of full-time ADF service thereafter.
·The DFRDB Act makes no provision for a member in these circumstances to return to the DFRDB scheme.
I refer to your facsimile, dated 9 March 2012, in which you included a copy of your D100 election form, signed by you on 7 November 2011, which you claimed to have faxed to the Department of Defence on 14 November 2011.
I kindly ask that you confirm if you had communicated to ComSuper your intent to remain in the DFRDB scheme verbally or in writing at any point prior to 8 November 2011, and if so, please provide details and any supporting documentary evidence.
…” (original emphasis) (T11, p 25)
The DFRDB officer wrote a further letter, dated 15 May 2012, to the applicant as follows:
“I refer to my letter, dated 19 March 2012, regarding your request for reconsideration of the overpayment of which you were advised by letter, dated 2 March 2012, in relation to the non-submission of a D100 form for your recent period of re-entry to the Defence Force.
I note that in my letter of 19 March, I have requested you provide any further details and supporting documentary evidence.
The more details and associated evidence you can provide in relation to this matter, the more it will assist DFCAP in reaching their determination.
I kindly ask that you please indicate, in writing, if you wish to proceed with your request for reconsideration. If a response is not received by 31 May 2012, it will be assumed that you do not wish to continue with your request for reconsideration.” (T22)
By letter dated 28 May 2012 the applicant wrote to the DFRDB officer as follows:
“In response to your letter dated 15 May 2012, I wish to proceed with my request for reconsideration.
I apologise for not getting back to you and your staff in reference to this matter. Enclosed is a statutory declaration from myself indicating that I did in fact complete a D100 form.
I am aware that the D100 form was not sent on my behalf due to the letter I received 2 March 2012 requesting payment for an overpayment of $8,386.99, which indicates that I defaulted to MSBS due to no D100 form being submitted to ComSuper, however my copy is dated 07 Nov 11, which you did not receive.
I have submitted a copy of AD600 the Undertaking to Render Continuous Full-Time Service application dated 25 Oct 2011 noting paragraph 7 & 8, reference election to stay on DFRDB and not move to MSBS.
Part 2 indicates my election of Superannuation Fund at that time when my election was submitted.
As a 27 year veteran, who made the conscious decision to stay on DFRDB and not move to MSBS when it was first introduced, clearly indicated my intention to stay with the better system.(sic)
There appears to be no record of my paperwork being submitted during the fortnight leading up to my deployment overseas.
I understand that it is a member’s responsibility to submit all appropriate paperwork; my reliance on the system now places me in this position.
I can only hope that the reconsideration committee accepts my evidence.” (T26, p 110)
The statutory declaration referred to in the second paragraph of the applicant’s letter is dated 28 May 2011 (sic) and states only as follows:
”That the information I have provided in relation to my request for reconsideration in respect to my DFRDB pension is true and correct.” (T26, p 111)
[The Tribunal notes that the D100 form mentioned in the applicant’s letter is referred to in paragraph 9 above and the AD600 form mentioned in that letter is referred to in paragraph 7 above.]
THE APPLICANT’S EVIDENCE
The applicant confirmed that he recommenced continuous full-time service on 8 November 2011 and was deployed to Afghanistan on 15 November 2011.
The applicant said that he had in fact signed the relevant D100 election form on or about 25 October 2011, although he indicated in that form that he had signed it on 7 November 2011, being the day before he was scheduled to recommence continuous full-time service. He said that, having signed that form, he handed it, together with other “paperwork”, to the Chief Clerk (the chief administrative officer) of his SASR unit, with a request that the Chief Clerk submit it to ComSuper.
The applicant acknowledged that he did not send the relevant D100 election form, or communicate his election not to join the MSB Scheme orally or otherwise, to the respondent, to ComSuper or to DFRDB at any time prior to his recommencing continuous full-time service on 8 November 2011.
THE ISSUE
The ultimate question to be determined by the Tribunal is whether, pursuant to s 6 of the MSB Act, the applicant became a member of the MSB Scheme on 8 November 2011.
If that question is determined in the affirmative, it will necessarily follow, pursuant to s 61C(1) of the DFRDB Act, that payment of the applicant’s “retirement pay” under the DFRDB Scheme is suspended with effect from 8 November 2011 and, accordingly, the total amount of “retirement pay” under the DFRDB Scheme which was paid to him from 8 November 2011, namely, $8,386.99, is, pursuant to s 126(4), (5) of the DFRDB Act, recoverable from him by the respondent.
ANALYSIS
Did the applicant become a member of the MSB Scheme on 8 November 2011?
The answer to the above question depends, ultimately, on the application of s 6 of the MSB Act to the circumstances of the applicant’s case.
Was the applicant an “eligible member of the Defence Force for the purposes of the DFRDB Act”, within the meaning of s 6(2) of the MSB Act, on and from 8 November 2011?
The phrase “eligible member of the Defence Force”, as defined in s 3(1) of the DFRDB Act, “does not include … a person who, under s 5A, is excluded from [that] definition”.
Section 5A(1) of the DFRDB Act provides (relevantly) that, subject to subs (2), “a person who … becomes, on or after 1 October 1991, a member of the Defence Force … is excluded from the definition of eligible member of the Defence Force in subsection 3 (1)”.
There is no exhaustive or inclusive definition of the phrase “member of the Defence Force” in s 3(1) of the DFRDB Act. Nor is there a definition of the phrase “Defence Force” in s 3(1) of the DFRDB Act. Section 30 of the Defence Act 1903 (Cth) (“Defence Act”), however, provides:
“The Defence Force consists of 3 arms, namely, the Australian Navy, the Australian Army and the Australian Air Force”
and s 31 provides:
“The Australian Army consists of 2 parts:
(a) the Regular Army; and
(b) the Army Reserve.”
In s 4(1) of the Defence Act:
·the word “Member” is defined to include “any officer, sailor, soldier and airman”;
·the word “Officer” is relevantly defined to mean “… in relation to the Australian Army … a person appointed as an officer of the Australian Army …”; and
·the word “Soldier” is defined to mean “a member of the Army other than an officer”.
In the Tribunal’s opinion, having regard to the “close connection between” the DFRDB Act and the Defence Act, it is appropriate to interpret the phrase “member of the Defence Force” in s 5A(1)(a) of the DFRDB Act consistently with the abovementioned provisions of the Defence Act: see Chapman v Defence Force Retirement and Death Benefits Authority (2001) 108 FCR 537 at 541.
In the present case it is common ground that the applicant retired from the Australian Regular Army on 4 July 2010 and that he subsequently became a member of the Army Reserve. Accordingly, the applicant became “a member of the Defence Force” – more specifically, a member of the Army Reserve – “after 1 October 1991”, within the meaning of s 5A(1)(a) of the DFRDB Act: Chapman (above) at 541. The Tribunal, furthermore, is satisfied that s 5A(2) is inapplicable in the circumstances of the applicant’s case.
The Tribunal concludes, therefore, that, pursuant to s 5A of the DFRDB Act, the applicant was not an “eligible member of the Defence Force”, as defined in s 3(1) of the DFRDB Act, on and from 8 November 2011.
Accordingly, the applicant was not an “eligible member of the Defence Force for the purposes of the DFRDB Act”, within the meaning of s 6(2) of the MSB Act, on and from 8 November 2011.
Was the applicant a member of the MSB Scheme, pursuant to s 6(1) of the MSB Act, on and from 8 November 2011?
Pursuant to s 6(1) of the MSB Act, the applicant is a member of the MSB Scheme if he falls within para (a), (b) or (c) of that subsection. It is common ground that the applicant does not fall within para (a) or para (b) of s 6(1). The critical question, therefore, is whether he falls within para (c) of s 6(1).
The applicant will fall within para (c) of s 6(1) of the MSB Act if he is “a member of the Reserves who is rending continuous full-time service under an undertaking to serve for a period of less than 12 months unless [he] has elected not to become a member of the [MSB] Scheme under section 61B of the DFRDB Act.”
Although the word “Reserves” is not defined in the MSB Act, the Tribunal is of the opinion that it should be taken to have the same meaning as that given in the definition of that word in s 4(1) of the Defence Act which states:
“‘Reserves’ means the Naval Reserve, the Army Reserve and the Air Force Reserve.”
It is common ground that, on and from 8 November 2011, the applicant was “a member of the Reserves”, namely, the Army Reserve, “who is rendering continuous full-time service under an undertaking to serve for a period of less than 12 months”, namely, the period from 8 November 2011 to 7 March 2012, within the meaning of para (c) of s 6(1) of the MSB Act. The matter which is in dispute is whether the applicant “has elected not to become a member of the [MSB] Scheme under section 61B of the DFRDB Act”, within the meaning of para (c) of s 6(1) of the MSB Act.
It is common ground that subss (1) and (2) of s 61B of the DFRDB Act are inapplicable in this case.
As regards subs (3) of s 61B of the DFRDB Act, it is common ground that the applicant was, at the material time, a “recipient member who intends to resume full-time service as a member of a Reserve for a continuous period of less than 12 months” and “has not previously made, under [s 61B], an election to become a member of the MSB scheme”, within the meaning of that subsection. The matter for the Tribunal’s determination is whether, for the purposes of subs (3) of s 61B, the applicant had, “before resuming service, in writing addressed to CSC, elect(ed) … not to become a member of [the MSB] scheme”.
It is common ground that the applicant completed and signed a DFRDB Scheme “Election form for former DFRDB Scheme Members resuming Australian Defence Force full-time service” (form D100) (see paragraph 9 above). As regards the date on which the applicant signed that form, the Tribunal accepts his evidence that he signed the completed form on or about 25 October 2011 and postdated it 7 November 2011 (being the day before he was scheduled to resume continuous full-time service). In any event, the Tribunal is satisfied, and finds, that the applicant signed the completed form “before resuming service” for the purposes of s 61B(3) of the DFRDB Act, and that his doing so constituted “… writing addressed to CSC” for the purposes of that subsection. The critical question for the Tribunal’s determination is whether, by completing and signing that form, the applicant “elect(ed) … not to become a member of [the MSB] scheme, within the meaning, and for the purposes, of s 61B(3) of the DFRDB Act.
The Tribunal notes that s 61B(3) of the DFRDB Act, unlike other provisions of that Act relating to the making of elections (see, for example, ss 24(1), 32A(2), 51, 57(1), 76(1) and 93(2)), does not expressly provide that the relevant election be made “by notice in writing given to CSC”. By contrast, s 61B(3) provides that the relevant “recipient member … must, before resuming service, in writing addressed to CSC, elect …”. In previous decisions of the Tribunal it has been determined that s 61B(3) of the DFRDB Act does not, either expressly or impliedly, require that the relevant written election be served on the CSC before the resumption of service but that, for an election under that subsection to be effective, the content of that election must be communicated, whether orally or in writing or by other conduct, to the CSC before the resumption of service: see Re Marston and Defence Force Retirement and Death Benefits Authority (2011) 121 ALD 232 at 236-238 (Member S Webb); Re Gill and Commonwealth Superannuation Corporation [2012] AATA 876 at paras 17, 21 (Deputy President R P Handley).
In the Tribunal’s opinion, the phrase “in writing addressed to CSC” in s 61B(3) of the DFRDB Act prescribes the form in which an election under that subsection is required to be made, not the means by which such an election is required to be effected. In that respect, the phrase “in writing addressed to CSC” in s 61B(3) of the DFRDB Act is to be contrasted with the phrase “by notice in writing given to CSC” in the various other provisions of that Act referred to in paragraph 35 above which, in the Tribunal’s opinion, prescribes the means by which an election under each of those provisions is required to be effected.
Given the Tribunal’s opinion that s 61B(3) of the DFRDB Act does not prescribe the means by which an election under that subsection is required to be effected, it is appropriate to have regard to the general law in relation to the making of an election. In Sargent v ASL Developments Ltd (1974) 131 CLR 634 Mason J said (at 655-656):
“Essential to the making of an election is communication to the party affected by words or conduct of the choice thereby made …”
Accordingly, the Tribunal agrees with the interpretation of s 61B(3) of the DFRDB Act enunciated in Marston and Gill (above), namely, that the making of an election for the purposes of that subsection requires:
·the expression of the content of the election or choice “in writing addressed to [the] CSC”; and
·the communication of the content of that election or choice to the CSC by words or conduct (including, of course, service of the election in writing on the CSC);
and that, in order to make an effective election under that subsection, the relevant “recipient member” must fulfil both of those requirements “before resuming service”, within the meaning of that subsection.
In the present case it is common ground that the applicant:
·fulfilled the first abovementioned requirement by completing and signing the relevant D100 election form before he resumed continuous full-time service on 8 November 2011;
·did not fulfil the second abovementioned requirement in that he failed to communicate, by any means, the content of the election he had expressed in writing in the D100 form to the CSC (or to any related agency such as ComSuper, DFRDB or MilitarySuper) before he resumed continuous full-time service on 8 November 2011.
The applicant’s handing of the completed and signed D100 form to the Chief Clerk of his SASR unit on or about 25 October 2011, with a request that the Chief Clerk submit that form to ComSuper, does not, in the Tribunal’s opinion, constitute communication by the applicant of the content of that form to the CSC or to ComSuper on or about that date. It is common ground, furthermore, that the D100 form was not received by the CSC (or any of the abovementioned related agencies) before the applicant resumed continuous full-time service on 8 November 2011. Indeed, it appears from the DFRDB officer’s letter of 19 March 2012 to the applicant (see paragraph 12 above) that DFRDB did not receive the relevant D100 form until 9 March 2012 when it was faxed to DFRDB by the applicant (see paragraphs 10 – 11 above).
The Tribunal finds, therefore, that the applicant did not make an effective election – including an election not to become a member of the MSB Scheme – under s 61B(3) of the DFRDB Act “before resuming service” within the meaning of that subsection.
Accordingly, the Tribunal determines that the applicant has not “elected not to become a member of the [MSB] Scheme under section 61B of the DFRDB Act”, within the meaning of s 6(1)(c) of the MSB Act.
The Tribunal concludes, therefore, that the applicant was a member of the MSB Scheme, pursuant to s 6(1) of the MSB Act, on and from 8 November 2011.
The applicant was overpaid “retirement pay” under the DFRDB Scheme
It follows from the abovementioned conclusion that, pursuant to s 61C(1) of the DFRDB Act, the applicant’s “retirement pay” under the DFRDB Scheme is suspended with effect from 8 November 2011. It is common ground that the applicant was nevertheless paid “retirement pay” under the DFRDB Scheme from 8 November 2011 to 23 February 2012 in the total amount of $8,386.99
The amount of the overpayment of “retirement pay” under the DFRDB Scheme to the applicant is recoverable by the CSC
Pursuant to subss (4) and (5) of s 126 of the DFRDB Act, the total amount of overpayment of “retirement pay” under the DFRDB Scheme made to the applicant in the period from 8 November 2011 to 23 February 2012, namely, $8,386.99, may be recovered by the CSC in the manner referred to in those subsections.
DECISION
For the above reasons, the decision under review is affirmed.
I certify that the preceding 46 (forty six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
........[sgd B Mitchell]..............................
Administrative Assistant
Dated 1 March 2013
Date of hearing
5 February 2013
Representative of the Applicant
In person (unrepresented)
Representative of the Respondent
Mr T Giugni
Office of the Australian Government Solicitor
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