MILITARY SUPERANNUATION AND BENEFITS ACT 1991

MILITARY SUPERANNUATION AND BENEFITS (ELIGIBLE MEMBER)

DECLARATION 2012

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Part 8 of the Act was repealed under Schedule 4 of the Defence Legislation Amendment Act (No. 1) 2005.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 withdraw specified category status from one employment category and to declare specified category status for three new categories.

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 individual members to whom this Declaration applies.

Consultation

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 is not subject to disallowance under item 39 of the table in subsection 44(2) of the LIA  or sunsetting under item 42 of the table in subsection 54(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.

      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.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Military Superannuation and Benefits (Eligible Member) Declaration 2012

Overview of the Declaration

The purpose of this Declaration is to declare members of certain Australian Defence Force employment categories or individual members (called specified categories or inter-employment categories respectively) to be eligible for a retention bonus without meeting the normal minimum rank requirements for payment of the bonus.

Human Rights Implications

The protection of a person's right to remuneration engages Article 7 of the International Covenant on Economic, Social and Cultural Rights.  Article 7 guarantees just and favourable conditions of work, including remuneration, safe and healthy conditions, equal opportunity and reasonable limitations.

This Declaration protects member's rights, in accordance with Article 7, by providing  access to a retention bonus of 12 months salary to members who have not been able to meet the minimum rank requirements because of impediments in their employment category structures. The bonus is normally only payable to members who have attained the minimum rank of Major (or equivalent) or Sergeant (or equivalent).  However, members employment categories, and individual members, specified in this Declaration can be paid the bonus without reaching one of the qualifying ranks.

Conclusion

This Declaration is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Warren Snowdon MP, Minister for Defence Science and Personnel