Military Superannuation and Benefits Amendment Trust Deed 2004 (No. 2)

Administered by Department of Defence

Legislation au F2005B00986 Not in force Legislative Instrument

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Military Superannuation and Benefits Amendment Trust Deed 2004 (No. 2)

I, MALCOLM THOMAS BROUGH, Minister for Employment Services, for the Minister for Defence, make this Trust Deed under subsection 5 (1) of the Military Superannuation and Benefits Act 1991.

Dated 14 June 2004

MAL BROUGH

Minister for Employment Services

for the Minister for Defence

 

1 Name of Trust Deed

  This Trust Deed is the Military Superannuation and Benefits Amendment Trust Deed 2004 (No. 2).

2 Commencement

  This Trust Deed commences on 12 August 2004.

3 Amendment of Military Superannuation and Benefits Trust Deed

  Schedule 1 amends the Military Superannuation and Benefits Trust Deed made under the Military Superannuation and Benefits Act 1991.

Schedule 1 Amendments

(section 3)

 

[1] Rules, subrule 2 (1)

after

allocation

insert

allowance

[2] Rules, subrule 2 (1)

after

Department

insert

Determination No. 6 of 1992

[3] Rules, subrule 2 (1)

after

financial year

insert

flying allowance

[4] Rules, subrule 2 (1)

after

previous legislation

insert

Q & S component

[5] Rules, subrule 2 (1)

after

SIS Regulations

insert

special action forces allowance

specialist operations allowance

[6] Rules, subrule 2 (1)

after

Statistician

insert

submarine service allowance

[7] Rules, paragraph 4 (5) (a)

omit

the salary and allowances of a member in respect of a period are

insert

the salary of a member in respect of a period is

[8] Rules, subrule 4 (7)

substitute

 (7) In a case to which paragraph (6) (b) applies, the member’s salary for the purpose of calculating the contribution payable by the member is taken not to include an allowance unless:

 (a) the allowance was payable to the member on the day immediately preceding the commencement of the period; and

 (b) an appropriate authority of the Defence Force has notified the Board that, but for the member’s absence on leave without pay, the allowance would have been payable to the member in respect of the whole of the period of his or her absence on that leave.

[9] Rules, paragraph 8 (1) (b)

substitute

 (b) the salary so assumed to be paid did not include an allowance unless:

 (i) the allowance was payable to the member on the day immediately before the commencement of the period; and

 (ii) an appropriate authority of the Defence Force has notified the Board that, but for the member’s absence on leave without pay, the allowance would have been payable to the member in respect of the whole of the period of his or her absence on that leave.

[10] Rules, paragraph 34 (1) (c)

substitute

 (c) the salary of the member in respect of the period was forfeited under regulations made under the Defence Act 1903, and an amount equal to the amount of the salary so forfeited was not subsequently paid, and is not payable, under those regulations to him or her;

[11] Rules, paragraph 40 (4) (b)

substitute

 (b) the salary of the deceased member in respect of the period of absence without leave was forfeited under regulations made under the Defence Act 1903, and an amount equal to the amount of the salary forfeited was not subsequently paid, and is not payable, under those regulations to the deceased member’s personal representative;

[12] Rules, Schedule 1, Part 1, after definition of allocation

insert

allowance means an allowance determined by the Defence Force Remuneration Tribunal under section 58H of the Defence Act 1903.

[13] Rules, Schedule 1, Part 1, after definition of Department

insert

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.

[14] Rules, Schedule 1, Part 1, after definition of financial year

insert

flying allowance means the allowance of that name established by Determination No. 7 of 1997, Flying Allowance, made under section 58H of the Defence Act 1903, as in force from time to time.

[15] Rules, Schedule 1, Part 1, after definition of previous legislation

insert

Q & S component, of an allowance, means the qualifications and skill component of the allowance.

[16] Rules, Schedule 1, Part 1, definition of salary

substitute

salary has the meaning given by Part 10 of this Schedule.

[17] Rules, Schedule 1, Part 1, definition of service allowance

substitute

service allowance means the allowance of that name established under Determination No. 11 of 1994, Service Allowance, made under section 58H of the Defence Act 1903, as in force from time to time.

[18] Rules, Schedule 1, Part 1, after definition of SIS Regulations

insert

special action forces allowance means the allowance of that name established by Determination No. 11 of 2002, Special Action Forces Allowance, made under section 58H of the Defence Act 1903, as in force from time to time.

specialist operations allowance means the allowance of that name established by Determination No. 19 of 2002, Specialist Operations Allowance, made under section 58H of the Defence Act 1903, as in force from time to time.

[19] Rules, Schedule 1, Part 1, after definition of Statistician

insert

submarine service allowance means the allowance of that name established by Determination No. 9 of 1995, Submarine Service Allowance, made under section 58H of the Defence Act 1903, as in force from time to time.

[20] Rules, Schedule 1, after Part 9

insert

Part 10 Salary

18 (1) Subject to this section, salary, in relation to a person who is a member of the Scheme on a particular day, means the sum of:

 (a) the annual rate of salary of the member on that day under Determination No. 6 of 1992, as in force from time to time; and

 (b) for a member to whom service allowance is payable — an amount equal to the annual rate of the service allowance that is applicable in respect of service by the member on that day; and

 (c) for a member to whom higher duties allowance is payable — an amount equal to the annual rate of the higher duties allowance that is applicable in respect of service by the member on that day; and

 (d) for a member to whom the Q & S component of:

 (i) flying allowance; or

 (ii) special action forces allowance; or

 (iii) specialist operations allowance; or

 (iv) submarine service allowance;

is payable — an amount equal to the annual rate of the Q & S component that is applicable in respect of service by the member on that day.

 (2) For a member holding the office of Chief of the Defence Force, Vice Chief of the Defence Force, Chief of Navy, Chief of Army or Chief of Air Force on a particular day, salary means the annual rate of salary on that day of a holder of that office as determined by the Remuneration Tribunal under subsection 7 (3) of the Remuneration Tribunal Act 1973.

 (3) A reference in this section to the annual rate of salary of a member on a day under Determination No. 6 of 1992 is taken to be a reference to the amount that would be the annual rate of salary of the member on that day under that Determination if the expression rank, when used in that Determination, had the meaning given to that expression by subsection 3 (1) of the 1973 Act and did not have the meaning given to that expression by that Determination.

Note   The definition of rank in subsection 3 (1) of the 1973 Act is:

rank, in relation to a member of the Defence Force, means:

(a) his substantive rank or, if he is appointed provisionally or on probation, the rank to which he is so appointed; or

(b) if he is provisionally promoted to another rank—that other rank.

[21] Rules, Schedule 2, paragraph 1 (a)

substitute

 (a) the salary of a member in respect of a period was, on or after the date of his or her entry into the Scheme, forfeited, in whole or in part, under regulations made under the Defence Act 1903; and

[22] Rules, Schedule 2, paragraph 1 (c)

omit

and allowances

 

Overview

The Military Superannuation and Benefits Amendment Trust Deed 2004 (No. 2) was enacted to amend the Military Superannuation and Benefits Trust Deed, originally established under the Military Superannuation and Benefits Act 1991. This Trust Deed was made by Malcolm Thomas Brough, the Minister for Employment Services, on behalf of the Minister for Defence. The primary objective of this amendment is to refine and update the definitions and rules related to allowances and salary calculations for members of the military superannuation scheme. The changes aim to clarify the terms and conditions under which allowances are considered in the calculation of a member's contributions and benefits, ensuring that the Trust Deed aligns with current Defence Force policies and remuneration practices. This amendment is intended to provide a more precise framework for administering the superannuation and benefits scheme for military personnel.

Scope and Application

The Military Superannuation and Benefits Amendment Trust Deed 2004 (No. 2) applies to the members of the Australian Defence Force who are participants in the Military Superannuation and Benefits Scheme. This Trust Deed, made under the Military Superannuation and Benefits Act 1991, amends the Military Superannuation and Benefits Trust Deed to refine the definitions and rules governing allowances, salary, and other financial aspects pertinent to military personnel. The amendments affect the calculation of benefits, particularly regarding allowances such as flying allowance, special action forces allowance, specialist operations allowance, and submarine service allowance, and address scenarios where salary or allowances may be forfeited. The Trust Deed is applicable nationally, aligning with the Commonwealth jurisdiction and directly impacting Defence Force personnel across Australia. The Trust Deed does not explicitly mention exclusions, exemptions, or thresholds, but the specific conditions and calculations it outlines inherently limit its application to those defined within the Defence Act 1903 and the Remuneration Tribunal Act 1973. The Trust Deed’s provisions can be further detailed or modified through subordinate instruments under the enabling Act.

Key Provisions

The Military Superannuation and Benefits Amendment Trust Deed 2004 (No. 2) (sections 1-3) amends the Military Superannuation and Benefits Trust Deed made under the Military Superannuation and Benefits Act 1991. This amendment takes effect from 12 August 2004, as specified in section 2. The main amendments are detailed in Schedule 1, which revises various rules and definitions to better align with current Defence Force remuneration practices. Section 3 of the Trust Deed imposes several obligations on the parties involved. It mandates the inclusion of new allowances such as flying allowance, special action forces allowance, specialist operations allowance, and submarine service allowance, as established under the Defence Act 1903. It also refines the definition of 'salary' to include various components such as the annual rate of salary, service allowance, higher duties allowance, and the Q&S component of specific allowances. Furthermore, it updates the rules regarding salary calculation for members on leave without pay or those whose salary was forfeited under Defence Act 1903 regulations. Breaches of the provisions in this Trust Deed can lead to significant legal consequences. While the specific offences and penalties are not detailed in the provided text, under the Military Superannuation and Benefits Act 1991, non-compliance with superannuation and benefits regulations can result in civil or criminal penalties. Typically, penalties for breaches in superannuation legislation can include fines and, in severe cases, imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as any applicable Defence Act regulations.

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