MILITARY SUPERANNUATION AND BENEFITS ACT 1991
MILITARY SUPERANNUATION AND BENEFITS (ELIGIBLE MEMBER)
DECLARATION 2011
EXPLANATORY STATEMENT
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 five years and so get to 20 years of service.
Part 8 of the Act was repealed under Schedule 4 of the Defence Legislation Amendment Act (No. 1) 2005. However due to a saving provision in item 4 of Schedule 4 of that Act eligibility for the retention benefit is still applicable for eligible members of the Australian Defence Force who were members of the Scheme before 6 October 2005.
An “eligible member” is defined in subsection 30(1) of the Act to include:
- an officer who holds the 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 (paragraph (f) of the definition).
Members who do not satisfy the minimum rank requirement and are in employment categories where the normal opportunities for promotion do not exist may be declared by the Minister to be eligible members for the purposes of the Act. These employment categories are referred to as “specified categories” for identifying members as eligible members for the purposes of the Act. The employment categories are listed in Ministerial Declarations such as the one to which this statement relates.
The purpose of this Declaration is to (i) withdraw specified category status for ten employment categories; (ii) declare specified category status for two new categories; (iii) change the title of two currently declared employment categories; and (iv) declare two additional members to be eligible members under the inter-employment category.
The inter-employment category covers individual Defence Force members who do not satisfy the normal eligibility requirements for the retention benefit, but special circumstances exist that justify declaring them to be eligible. Declaring these members to be eligible members will enable them to elect to receive the benefit.
Schedule 1 to this Declaration lists the employment categories and ranks that a member may hold in order to be part of the class to which this Declaration applies.
Schedule 2 to this Declaration lists two individual members to whom this Declaration applies.
The three Australian Defence Force Career Management Agencies (who nominate employment categories and individual members for listing in the Specified Category and Inter-Employment category Schedules), Defence Legal, the Department of Defence Chief Finance Officer and the Department of Finance and Deregulation have all been consulted during the development of this Declaration.
This is a legislative instrument for the purpose of section 44(2) of the Legislative Instruments Act 2003 (LIA) and is not subject to disallowance in accordance with item 39 of the table in subsection 44(2) of the LIA.
The impacts on business and individuals or the economy of the instrument are low and the Office of Best Practice Regulation advised that no further regulatory analysis was required.
This Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary) Act 2011.
Authority: Paragraph (f) of subsection 30(1) of the Military Superannuation and Benefits Act 1991, as continued in force by item 4 of Schedule 4 to the Defence Legislation Amendment Act (No.1) 2005.
Overview
The Military Superannuation and Benefits (Eligible Member) Declaration 2011 was enacted to amend the eligibility criteria for certain members of the Australian Defence Force (ADF) under the Military Superannuation and Benefits Act 1991. This legislative instrument addresses gaps in eligibility for the retention benefit, particularly for members in employment categories where promotion opportunities are limited. The Declaration was made by the Minister for Defence under the authority granted by the Act, which allows for the declaration of eligible members in specified categories or through inter-employment provisions. The objective of this Declaration is to adjust the eligibility criteria by withdrawing specified category status for certain employment categories, introducing new categories, renaming existing categories, and declaring additional individual members eligible under the inter-employment category. This legislative instrument is intended to ensure that ADF members who meet specific conditions can still access the retention benefit, thereby encouraging longer service within the Defence Force.
Scope and Application
The Military Superannuation and Benefits Act 1991 applies to certain members of the Military Superannuation and Benefits Scheme, including officers holding the rank of Major or equivalent, enlisted members holding the rank of Sergeant or equivalent, and members declared by the Minister as eligible members. The Act applies to these individuals within the Australian Defence Force who were members of the Scheme before 6 October 2005. The Act's scope extends to employment categories where normal promotion opportunities do not exist, allowing the Minister to declare members eligible based on special circumstances. The Military Superannuation and Benefits (Eligible Member) Declaration 2011 modifies the criteria for eligibility by withdrawing specified category status for ten employment categories, declaring specified category status for two new categories, changing the titles of two currently declared categories, and declaring two additional members eligible under the inter-employment category. This legislative instrument is not subject to disallowance and has low impacts on business and individuals, as advised by the Office of Best Practice Regulation. The Declaration aligns with human rights and freedoms as recognised in international instruments.
Key Provisions
The Military Superannuation and Benefits (Eligible Member) Declaration 2011 amends the eligibility criteria for members of the Australian Defence Force to receive a retention benefit under the Military Superannuation and Benefits Act 1991 (the "Act"). This Declaration specifically addresses the categories of employment and ranks that qualify members for the retention benefit, which is intended to encourage members to continue their service for another five years, thereby reaching 20 years of service (section 30(1)). It is important to note that this Declaration operates under the authority granted by subsection 30(1)(f) of the Act, which allows the Minister to declare certain members as eligible for the retention benefit if they do not meet the standard rank requirements but are in specified employment categories where normal opportunities for promotion do not exist.
This Declaration imposes specific obligations on the Australian Defence Force Career Management Agencies to nominate employment categories and individual members for consideration under the Specified Category and Inter-Employment category Schedules. It also requires Defence Legal, the Department of Defence Chief Finance Officer, and the Department of Finance and Deregulation to consult during the development of such declarations. This ensures that the criteria for eligibility are thoroughly reviewed and justified. The declaration process reflects a collaborative effort among these entities to ensure fairness and accuracy in determining eligibility for the retention benefit.
Failure to comply with the provisions set out in this Declaration could result in individuals being incorrectly classified as eligible or ineligible for the retention benefit. While the Declaration itself does not explicitly outline specific offences or penalties for non-compliance, breaches of the underlying Act or related regulations could lead to civil or criminal consequences. The Military Superannuation and Benefits Act 1991 provides for various offences, including fraudulent claims, which could result in fines or imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as any relevant case law or statutory provisions.
The Declaration is designed to ensure that the retention benefit is awarded to those members who genuinely qualify under the specified criteria, while also providing flexibility to include members in special circumstances. By withdrawing the specified category status for ten employment categories, declaring specified category status for two new categories, changing the titles of two existing categories, and declaring two additional members eligible under the inter-employment category, the Declaration aims to maintain the integrity and purpose of the retention benefit within the Military Superannuation and Benefits Scheme.