MILITARY SUPERANNUATION AND BENEFITS ACT 1991
MILITARY SUPERANNUATION AND BENEFITS (ELIGIBLE MEMBERS)
DECLARATION 2015
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Part 8 of the Act was repealed under Schedule 4 of the Defence Legislation Amendment Act (No. 1) 2005.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 ten employment categories and to declare specified category status for thirteen 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.
Schedule 3 to this Declaration repeals the previous Military Superannuation and Benefits (Eligible Members) Declaration 2014 (No. 2)
Commencement
This Declaration commences the day after registration.
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 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.
Human Rights
The Human Rights (Parliamentary Scrutiny) Act 2011 section 9(1) states that a legislative instrument subject to disallowance requires a Statement of Compatibility to be prepared. Though this Declaration is not subject to disallowance it is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Declaration does not engage any applicable rights or freedoms, other than to provide an additional financial benefit to the affected person that assists them to exercise their right to the enjoyment of just and favourable conditions of work (article 7 of the International Covenant of Economic, Social and Cultural Rights).
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 Members) Declaration 2015 was enacted to address the classification of eligible members within the Military Superannuation and Benefits Scheme. The Military Superannuation and Benefits Act 1991, which provides for the payment of a retention benefit to certain members who have completed 15 years of continuous eligible service, was the primary piece of legislation amended by this Declaration. This instrument was introduced by the Australian Government and serves to update the eligibility criteria for the retention benefit under the Act. The policy objective of this Declaration is to ensure that the benefits of the Scheme are appropriately targeted to those members who have completed a significant period of service and to adjust the eligibility criteria to reflect the current operational needs of the Australian Defence Force.
Scope and Application
The Military Superannuation and Benefits (Eligible Members) Declaration 2015 applies to the members of the Australian Defence Force who were part of the Military Superannuation and Benefits Scheme before 6 October 2005. Specifically, it identifies which employment categories are eligible for the retention benefit, which provides an incentive for members to serve for another five years to reach 20 years of service. The Act applies to officers who hold the rank of Major or equivalent, enlisted members who hold the rank of Sergeant or equivalent, or members declared by the Minister to be eligible members. This Declaration adjusts the eligibility by withdrawing specified category status from ten employment categories and granting it to thirteen new categories, as listed in Schedule 1 and Schedule 2 of the Declaration. The changes are designed to align the eligibility criteria more closely with current career structures and opportunities within the Defence Force. The Act does not apply to members who joined the Scheme after 6 October 2005, as the relevant provisions were repealed by the Defence Legislation Amendment Act (No. 1) 2005, although eligibility for the retention benefit remains for pre-existing members due to a saving provision. The application of the Act is further refined and detailed through subordinate instruments such as Ministerial Declarations.
Key Provisions
The Military Superannuation and Benefits (Eligible Members) Declaration 2015 makes several key changes to the categories of military personnel eligible for a retention benefit under the Military Superannuation and Benefits Act 1991 (the "Act"). This Declaration effectively modifies the definition of "eligible members" in subsection 30(1) of the Act, which currently includes officers holding the rank of Major or above, enlisted members holding the rank of Sergeant or above, or those declared eligible by the Minister. Under this Declaration, certain employment categories lose their "specified category" status, while thirteen new categories are added (Schedule 1). The specific categories and ranks affected are detailed in the Declaration, and it applies to the individual members listed in Schedule 2. This legislative instrument operates to update the eligibility criteria for the retention benefit in line with current Defence Force structures and requirements.
The Declaration imposes specific obligations on the parties involved. The Australian Defence Force Career Management Agencies, Defence Legal, the Department of Defence Chief Finance Officer, and the Department of Finance and Deregulation must work together to ensure that the employment categories and individual members listed in the schedules are accurately identified and updated. The Defence Minister must also ensure that the categories listed in the Declaration are consistent with the Defence Force's current operational needs and structures. These obligations are designed to ensure that the retention benefit is applied fairly and effectively within the Defence Force.
Breach of the provisions of the Military Superannuation and Benefits Act 1991 or the Declaration could result in civil or criminal penalties. However, the Declaration itself does not explicitly outline these penalties. Under the Act, penalties for non-compliance or fraudulent claims may include fines, imprisonment, or both, depending on the severity of the breach. The maximum penalties would be in accordance with the provisions of the Act and any relevant case law. It is essential for Defence Force personnel and administrators to adhere to the guidelines set out in the Declaration to avoid potential legal repercussions.
The Declaration ensures that the retention benefit remains an effective incentive for members of the Military Superannuation and Benefits Scheme who have completed 15 years of continuous eligible service. By updating the eligible categories, the Declaration aims to maintain the relevance and fairness of the retention benefit within the Defence Force. The changes made by the Declaration are designed to reflect the current structures and requirements of the Defence Force, ensuring that the benefit continues to serve its intended purpose.