Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations (Amendment) 1995 No. 49
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 49
Issued by the authority of the Minister for Defence Science and Personnel
Defence Force Retirement and Death Benefits Act 1973
Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations (Amendment)
Background
Subsection 3 (1) of the Defence Force Retirement and Death Benefits Act 1973 (the DFRDB Act) provides for a member's "annual rate of pay" to be prescribed. Subsection 131(1) of the DFRDB Act provides that the Governor-General may make regulations prescribing matters for carrying out or giving effect to the Act.
The Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations (the Principal Regulations) prescribe the annual rates of pay, for the purposes of subsection 3(1) of the DFRDB Act. Contributions and benefits under the Defence Force Retirement and Death Benefits Scheme are calculated on the basis of the prescribed rates.
The Regulations amend the Principal Regulations, to correct references to a salary determination which has now been superseded.
Regulation 4 of the Principal Regulations prescribed the annual rates of pay by reference to "Determination 010111. "Determination 010111 was defined by subregulation 3(1) of the Principal Regulations to mean "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 0101 has not dealt with rates of salary since 4 June 1992 when a Defence Force Remuneration Tribunal determination (Determination No. 6 of 1992), made under section 58H of the Defence Act 1903, took over coverage of this matter. on that date the provisions dealing with the rates of salary were omitted from Determination 0101 by a determination made under section 58B of the Defence Act 1903 (Determination No. 21 of 1992).
In order to identify correctly the source of salary of or the regulations in question, the references to Determination 0101 needed to be replaced by references to Determination No. 6 of 1992. The amendment needed to be retrospective so that the references to Determination No. 6 of 1992 had effect from 4 June 1992, when that Determination replaced Determination 0101.
The Attorney-General's Department has advised that the amendment to the Principal Regulations is not prevented by the Acts Interpretation Act 1901. That Act prohibits retrospective regulations which affect rights disadvantageously or impose liabilities. The Attorney-General's Department has concluded that the correction of the wrong crossreferences is merely a "tidying-up" exercise and does not substantively affect rights.
Changes
The Regulations amend the incorrect references retrospectively, to apply Determination No. 6 of 1992 with effect from 4 June 1992. This is achieved by replacing the references to Determination 0101 in the Principal Regulations, with references to Determination No. 6 of 1992.
The effect of the amendment is to correct, with effect from 4 June 1992, the references that provide the basis for the deduction of contributions and the payment of benefits under the Defence Force Retirement and Death Benefits Scheme.
Commencement
The Regulations are taken to have commenced on 4 June 1992.
Overview
The Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations (Amendment) 1995 No. 49 were enacted to correct references in the Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations, which were made under the Defence Force Retirement and Death Benefits Act 1973. The objective of this amendment was to rectify the references to an outdated salary determination, which had been superseded on 4 June 1992 by a new Defence Force Remuneration Tribunal determination. This legislative amendment was made to ensure that the regulations correctly identified the source of salary rates for the purpose of calculating contributions and benefits under the Defence Force Retirement and Death Benefits Scheme. The regulation was issued under the authority of the Minister for Defence Science and Personnel and was not considered retrospective in a manner that would affect any rights or impose liabilities, as advised by the Attorney-General's Department.
Scope and Application
The Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations (Amendment) 1995 No. 49 applies to the annual rates of pay for members of the Australian Defence Force under the Defence Force Retirement and Death Benefits Act 1973. These regulations amend the existing Principal Regulations to correct references to a salary determination that has been superseded, ensuring that the correct source of salary is identified for the purposes of calculating contributions and benefits. The amendment is retrospective, with effect from 4 June 1992, when Determination No. 6 of 1992 replaced Determination 0101 as the relevant source for salary rates. This change does not disadvantage any party or impose new liabilities, as confirmed by the Attorney-General's Department, and is therefore not subject to the prohibitions of the Acts Interpretation Act 1901 against retrospective regulations affecting rights or imposing liabilities.
Key Provisions
The key operative sections of the Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations (Amendment) 1995 No. 49 (the Regulations) pertain to the correction of references in the Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations (the Principal Regulations) to a superseded salary determination. Regulation 4 of the Principal Regulations prescribed the annual rates of pay by reference to "Determination 010111" which is defined to mean "Determination 0101, Salary of Permanent Force Members, made under section 58B of the Defence Act 1903". However, Determination 0101 has not dealt with rates of salary since 4 June 1992, when Determination No. 6 of 1992, made under section 58H of the Defence Act 1903, took over coverage of this matter. The Regulations amend the Principal Regulations to replace references to Determination 0101 with references to Determination No. 6 of 1992, with retrospective effect from 4 June 1992.
The Regulations impose certain obligations on the parties or entities they govern. The primary obligation is to ensure that the correct references are made in the Principal Regulations for the purpose of calculating contributions and benefits under the Defence Force Retirement and Death Benefits Scheme. Specifically, the Regulations require that the references to Determination 0101 be replaced with references to Determination No. 6 of 1992, with effect from 4 June 1992. This ensures that the correct source of salary rates is identified for the purpose of calculating contributions and benefits under the Scheme.
The Regulations do not create any new offences or penalties. However, any breach of the Regulations, including failure to correctly reference the appropriate salary determination, may have civil or administrative consequences for the parties or entities affected. The Attorney-General's Department has advised that the amendment to the Principal Regulations is not prevented by the Acts Interpretation Act 1901, as it does not substantively affect rights. However, any failure to correctly reference the appropriate salary determination may result in incorrect calculations of contributions and benefits under the Defence Force Retirement and Death Benefits Scheme, which may have financial consequences for the affected parties or entities.