MILITARY SUPERANNUATION AND BENEFITS ACT 1991
MILITARY SUPERANNUATION AND BENEFITS (ELIGIBLE MEMBERS)
DECLARATION 2016
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Part 8 of the Act was repealed under Schedule 4 of the Defence Legislation Amendment Act (No. 1) 2005.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 due to structural impediments, 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 and allows the beneficial nature of the legislation to flow to affected members. When a specified category is identified by the relevant Service as no longer presenting structural impediments to members reaching the minimum rank required, it is withdrawn from the specified category list.
The purpose of this beneficial legislative Declaration is to withdraw specified category status from three employment categories as they no longer have structural impediments for members to reach their required rank within that category. One new category has been declared specified category status as they have structural impediments.
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.
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 have all been consulted during the development of this Declaration.
This is a legislative instrument for the purpose of the Legislation Act and is not subject to disallowance in accordance with item 3 of the table in section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015.
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 right 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 2016, issued under the Military Superannuation and Benefits Act 1991, aims to update the categories of Australian Defence Force members who may qualify for a retention benefit. This benefit was originally intended to encourage members to serve for an additional five years, thereby reaching a total of twenty years of service. Although Part 8 of the Act was repealed by the Defence Legislation Amendment Act (No. 1) 2005, eligibility for the retention benefit remains in force for members who were part of the Military Superannuation and Benefits Scheme before 6 October 2005. The current Declaration modifies the specified employment categories that were previously recognised as having structural impediments to promotion, thereby affecting eligibility for the retention benefit. This update aims to ensure that the benefit is accurately targeted to those who still face such impediments.
Scope and Application
The Military Superannuation and Benefits (Eligible Members) Declaration 2016 applies to eligible members of the Australian Defence Force who were members of the Military Superannuation and Benefits Scheme prior to 6 October 2005, as defined under the Military Superannuation and Benefits Act 1991. The Act applies to officers who hold the rank of Major or equivalent, enlisted members who hold the rank of Sergeant or equivalent, or those declared eligible by the Minister due to structural impediments in certain employment categories. This Declaration specifically targets these eligible members, withdrawing specified category status from three employment categories where structural impediments have been resolved, and assigning specified category status to one new category that still presents such impediments. The geographic reach of the Act is national, as it pertains to the Australian Defence Force, which operates across all states and territories of Australia. The Act is not subject to disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015, indicating its legislative standing. Furthermore, the Declaration aligns with human rights recognised in international instruments, notably by providing additional financial benefits to affected individuals, which supports their right to just and favourable conditions of work.
Key Provisions
The Military Superannuation and Benefits (Eligible Members) Declaration 2016 amends the eligibility criteria for the retention benefit under the Military Superannuation and Benefits Act 1991. This Declaration, as outlined in Schedule 1, withdraws specified category status from three employment categories where structural impediments to achieving the minimum required rank have been removed. Conversely, it grants specified category status to one new category where such impediments exist. These changes are effective for members who were part of the Military Superannuation and Benefits Scheme before 6 October 2005. The Declaration is underpinned by consultations with the Australian Defence Force Career Management Agencies, Defence Legal, the Department of Defence Chief Finance Officer, and the Department of Finance. This ensures that the legislative changes are well-informed and balanced.
The Act imposes specific obligations on the entities and individuals it governs. Firstly, the Australian Defence Force Career Management Agencies are tasked with identifying employment categories that still present structural impediments to promotion, and nominating these for specified category status. Defence Legal provides legal advice to ensure the Declaration aligns with existing legislative frameworks. The Department of Defence Chief Finance Officer and the Department of Finance collaborate to assess the financial implications of the changes and ensure they are within budgetary constraints. These consultations are critical for maintaining the integrity and effectiveness of the Military Superannuation and Benefits Scheme.
Breaching the provisions of this Declaration or failing to comply with the obligations outlined could lead to civil or administrative penalties. While the Declaration does not explicitly state penalties for non-compliance, the broader Military Superannuation and Benefits Act 1991 provides a framework for such consequences. Typically, breaches of military legislation can result in disciplinary action, financial penalties, or other administrative sanctions. The precise penalties depend on the severity and nature of the breach, as well as the specific provisions of the Act that are contravened. The Act ensures that any misconduct or non-compliance is addressed to uphold the standards and objectives of the Military Superannuation and Benefits Scheme.