explanatory statement
Issued by the authority of the Minister for Finance and Deregulation
Defence Force Retirement and Death Benefits Act 1973
Declaration under section 73
Eligible superannuation schemes are schemes to which Defence Force Retirement and Death Benefit (DFRDB) members can transfer their benefits on leaving the DFRDB, provided they are not entitled to a pension at that time.
Under the Defence Force Retirement and Death Benefit Act 1973 (DFRDB Act), the Minister for Finance and Deregulation (MFD) has the power to declare which schemes are eligible superannuation schemes.
The purpose of this Declaration, cited as the Eligible Superannuation Scheme Declaration 2008, is to consolidate in a single instrument those superannuation schemes which have been declared eligible superannuation schemes under the DFRDB Act, effective from 1 January 2008.
Advice provided by the Australian Government Solicitor (AGS) has identified no legal impediment in making the Declaration retrospective.
AGS noted that the retrospective enactment of the Declaration is provided for under the DFRDB Act, and in ensuring there is no gap in the availability of the option to transfer DFRDB benefits, which is a beneficial outcome for DFRDB members, would not appear to breach section 12 of the Legislative Instruments Act 2003.
Overview
The Defence Force Retirement and Death Benefits Act 1973 was enacted to provide for the retirement and death benefits of members of the Australian Defence Force. This Act was introduced to address the need for a comprehensive framework that governs the retirement and death benefits for members of the Defence Force, ensuring they are adequately provided for after their service. The policy objective of the Act is to offer financial security to members of the Defence Force and their families in the event of death or retirement, thereby recognising and compensating for their service. The Eligible Superannuation Scheme Declaration 2008, issued by the Minister for Finance and Deregulation, serves to consolidate the schemes eligible for transferring DFRDB benefits, ensuring continuity and clarity for Defence Force members. This declaration, effective from 1 January 2008, was made retrospective to avoid any gaps in the availability of transfer options for DFRDB benefits, reflecting a commitment to the welfare of Defence Force retirees.
Scope and Application
The Eligible Superannuation Scheme Declaration 2008, issued under the Defence Force Retirement and Death Benefit Act 1973, applies to superannuation schemes eligible for the transfer of benefits from members of the Defence Force Retirement and Death Benefit (DFRDB) scheme upon their departure from the DFRDB, provided they are not receiving a pension at that time. This instrument is significant as it consolidates the previously disparate declarations into a single, comprehensive statement effective from 1 January 2008. The declaration is made by the Minister for Finance and Deregulation, who is empowered under the DFRDB Act to identify eligible schemes. The scope of this legislation is specifically targeted at DFRDB members and the superannuation schemes that are eligible to receive their benefits, ensuring continuity and clarity in the process of transferring these benefits. The retrospective nature of the declaration, as advised by the Australian Government Solicitor, is deemed legally sound and does not contravene the Legislative Instruments Act 2003, thereby maintaining the integrity of the benefits available to DFRDB members.
Key Provisions
The Eligible Superannuation Scheme Declaration 2008, issued under section 73 of the Defence Force Retirement and Death Benefit Act 1973, serves to consolidate the various superannuation schemes that are deemed eligible for the transfer of benefits from the Defence Force Retirement and Death Benefits (DFRDB) scheme. These are the schemes to which DFRDB members can transfer their benefits when they leave the DFRDB, provided they are not entitled to a pension at the time of their departure. The Minister for Finance and Deregulation has the authority to declare which superannuation schemes qualify as eligible under the DFRDB Act, and this declaration specifies the schemes that have been approved for this purpose, effective from 1 January 2008. The consolidation of these schemes in a single instrument aims to simplify the process for DFRDB members seeking to transfer their benefits.
The Act imposes specific obligations on the parties and entities it governs, primarily centred on the eligibility of superannuation schemes for the transfer of DFRDB benefits. The Minister for Finance and Deregulation must ensure that the schemes declared under the Act are indeed suitable for such transfers. Additionally, the Australian Government Solicitor has provided advice that there is no legal barrier to making the declaration retrospective, meaning that the declaration can apply to schemes and members prior to the date of the declaration, provided it does not contravene any legal principles or provisions. This advice is crucial in maintaining continuity and ensuring that DFRDB members are not disadvantaged by any changes in the legislative framework.
Failure to comply with the provisions of the Defence Force Retirement and Death Benefit Act 1973, or the specific requirements set out in the Eligible Superannuation Scheme Declaration 2008, can lead to various civil and criminal consequences. While the explanatory statement does not specify the exact penalties for breaches, it is important to note that the Act provides for enforcement measures to ensure adherence to its provisions. The retrospective nature of the declaration, as advised by the Australian Government Solicitor, is intended to avoid any gaps in the legislative framework, thereby protecting the interests of DFRDB members. Any breach of the Act or the declaration could potentially result in legal actions, penalties, or other civil remedies as prescribed by law.