EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 142
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE SCIENCE AND PERSONNEL
MILITARY SUPERANNUATION AND BENEFITS ACT 1991 MILITARY SUPERANNUATION AND BENEFITS DECLARATION
The Military Superannuation and Benefits Act 1991 ("the Act") makes provision in Part 8 for the payment of a retention benefit to certain members of the Military Superannuation and Benefits Scheme ("the Scheme") who have completed 15 years of continuous eligible service. The purpose of the benefit is to induce members to serve for another 5 years. An "eligible member" is defined in section 30 of the Act to include: an officer who holds a rank not lower than Major or equivalent (or who was previously an enlisted member), an enlisted member who holds the rank. of Sergeant or equivalent; or a member declared by the Minister to be an eligible member. This last category was included in the Act to enable members to receive the benefit where they would not otherwise qualify (because they are in employment categories where the normal opportunities for promotion do not exist.)
The retention benefit became payable from 1 October 1991 and two instruments, one covering the period from 1 October 1991 to 30 September 1992 and the other covering the period commencing on 1 October 1992, purported to make members in certain employment categories "eligible members" for the purpose of paying the retention benefit. These instruments were defective in a number of ways and, in particular, were not in the form of Statutory Rules as required by section 49 of the Act.
The purpose of this declaration is to rectify the defects of the two earlier instruments by remaking them in accordance with section 49.
This declaration covers the same employment categories as the earlier instruments. The declaration covers the period from 1 October 1991 to 30 September 1992 and the period commencing 1 October 1992. The retrospective operation of the declaration is wholly beneficial to members affected by it.
Clause 1. Citation
This clause is formal.
Clause 2. Interpretation
This clause defines references to the "Act".
This clause has the effect of including, as "eligible members", members of the Scheme included in the employment categories set out in the Schedule to the Determination.
Schedule
The employment categories in Part 1 of the Schedule apply to the period from 1 October 1991 to 30 September 1992 and the categories in Part 2 apply after the latter date. The categories covered by this declaration are the same as those intended to be covered by the defective instruments.
Overview
The Military Superannuation and Benefits Declaration 1993 (C2004L05389) was issued under the authority of the Minister for Defence Science and Personnel to rectify defects in earlier instruments that were intended to determine eligibility for a retention benefit under the Military Superannuation and Benefits Act 1991. The original instruments, which aimed to include certain employment categories as eligible for the retention benefit, were found to be defective as they were not made in the form of Statutory Rules as required by section 49 of the Act. This declaration serves to correct these defects and ensures that the intended categories of members are eligible for the benefit, thereby addressing the legislative gap created by the defective instruments. The policy objective of the declaration is to provide clarity and ensure the proper administration of the retention benefit, ensuring that eligible members receive the benefit to which they are entitled.
Scope and Application
The Military Superannuation and Benefits Act 1991 applies to certain members of the Military Superannuation and Benefits Scheme, specifically those who have completed 15 years of continuous eligible service. Eligible members include officers holding a rank not lower than Major or equivalent, enlisted members holding the rank of Sergeant or equivalent, and members declared by the Minister to be eligible. The Act aims to provide a retention benefit to induce members to continue serving for another five years. The scope of this Act extends to the Commonwealth of Australia and applies to members within the Scheme, ensuring they meet the eligibility criteria to receive the retention benefit. The Act's jurisdiction is national, and it includes provisions for subordinate instruments to extend or restrict its application, ensuring that the intended beneficiaries are correctly identified and included. Any defects in the original instruments have been rectified through this declaration, ensuring that the benefits are accurately applied to the intended members without jurisdictional or eligibility issues.
Key Provisions
The Military Superannuation and Benefits Act 1991, specifically in Part 8, provides for the payment of a retention benefit to certain members of the Military Superannuation and Benefits Scheme (the "Scheme") who have completed 15 years of continuous eligible service (section 30). This benefit is intended to encourage members to serve for an additional 5 years. Eligible members under this Act include officers with a rank not lower than Major or equivalent, enlisted members with the rank of Sergeant or equivalent, or members declared by the Minister to be eligible members, even if they are in employment categories where normal opportunities for promotion do not exist. The retention benefit became payable from 1 October 1991.
The Act imposes several obligations and requirements on the parties involved. Firstly, it mandates that eligible members who have completed 15 years of continuous service within the Scheme be eligible for the retention benefit. The Act further specifies that any instruments related to the payment of this benefit must be in the form of Statutory Rules as required by section 49. Any defects in such instruments must be rectified to ensure compliance with the Act. Additionally, the Act requires that any amendments or clarifications be made in a manner that maintains the integrity and purpose of the benefit, ensuring that it remains wholly beneficial to the affected members.
There are potential consequences for breaches of the Act, although the text does not specify the exact offences or penalties. Generally, under Australian law, breaches of statutory provisions can lead to civil or criminal penalties, depending on the nature and severity of the breach. Civil penalties might include fines, compensation for damages, or injunctions, while criminal penalties could involve imprisonment or fines, particularly if the breach is deemed to be of a serious nature. The maximum penalties would be determined by the specific provisions of the Act and any relevant legislation governing the enforcement of statutory provisions.
In summary, the Military Superannuation and Benefits Act 1991 sets out the criteria for the payment of a retention benefit to eligible members of the Scheme who have completed 15 years of service. The Act imposes specific obligations on the parties, including the requirement for Statutory Rules to be used for any instruments related to the benefit. Failure to comply with the Act could result in civil or criminal penalties, although the exact consequences would depend on the nature of the breach. The recent declaration aims to rectify defects in earlier instruments, ensuring that the benefit remains available to those who qualify under the Act.