MILITARY SUPERANNUATION AND BENEFITS ACT 1991
MILITARY SUPERANNUATION AND BENEFITS (ELIGIBLE MEMBERS)
DECLARATION 2017
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Part 8 of the Act was repealed under Schedule 4 of the Defence Legislation Amendment Act (No. 1) 2005.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. 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relevant Service as no longer presenting structural impediments to members reaching the minimum rank required, it is withdrawn from the specified category list.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 declare specified category status to two new employment categories (Aeronautical Engineer and Weapons Electrical Aircraft Engineer-(items 1.29 and 1.30), and rename six existing and continuing specified categories (items3.18,3.19,3.20,3.23,3.24,3.5) into Ground Mechanical Engineering Mustering (item 3.28), Ground Support Equipment Mustering(item 3.29). Aircraft Structures Mustering (item 3.30) and Air Force Imagery Specialist (3.31).
In addition there have been minor eligibility changes to category items 1.2,1.24,1.25 and 1.27 to reflect the actual end date of 29 September 2015.
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 2016 Declaration.
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, 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, though not subject to disallowance, 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 2017 is an instrument under the Military Superannuation and Benefits Act 1991, which was enacted to provide a retention benefit to certain members of the Military Superannuation and Benefits Scheme who have completed 15 years of continuous eligible service. The benefit aims to encourage members to serve for another five years, reaching 20 years of service. This declaration, issued by the Minister for Defence, serves to address the issue of structural impediments to promotion that prevent certain members from reaching the minimum rank required for eligibility. By declaring specific employment categories as eligible, the Declaration ensures that members in these categories, despite not meeting the rank requirements, can still qualify for the retention benefit. This legislative instrument is not subject to disallowance and has been deemed compatible with human rights, providing an additional financial benefit that assists eligible members in exercising their right to favourable conditions of work.
Scope and Application
The Military Superannuation and Benefits (Eligible Members) Declaration 2017 operates under the framework established by the Military Superannuation and Benefits Act 1991, which applies to eligible members of the Australian Defence Force who were part of the Military Superannuation and Benefits Scheme prior to the repeal of Part 8 by the Defence Legislation Amendment Act (No. 1) 2005. This legislation pertains to members who have completed 15 years of continuous eligible service and aims to provide a retention benefit to encourage them to serve for an additional five years, thereby reaching 20 years of service. The Act applies to 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 due to structural impediments in their employment categories. The Declaration amends and updates the eligibility criteria for certain employment categories, ensuring that members who face specific structural barriers in their career progression remain eligible for the retention benefit. The changes made by this Declaration include the addition of two new employment categories, renaming of six existing categories, and minor adjustments to reflect the actual end dates of certain categories. This legislative instrument is not subject to disallowance and has been developed with consultation from relevant Defence agencies and departments.
Key Provisions
The Military Superannuation and Benefits (Eligible Members) Declaration 2017 amends the Military Superannuation and Benefits Act 1991 by declaring specified categories of employment for members of the Australian Defence Force who are eligible for a retention benefit. This benefit is designed to encourage members to continue serving for an additional five years, bringing their total service to 20 years. The Declaration lists employment categories where structural impediments have historically made it difficult for members to achieve the minimum rank required for eligibility (subsection 30(1)(f)). Two new employment categories—Aeronautical Engineer and Weapons Electrical Aircraft Engineer—have been added to the list of specified categories, while six existing categories have been renamed to better reflect their roles. The Declaration also includes minor changes to some category end dates to ensure they accurately reflect the actual end date of 29 September 2015.
Under the Military Superannuation and Benefits Act 1991, eligible members who have completed 15 years of continuous eligible service are entitled to a retention benefit. To qualify, a member must meet the minimum rank requirement, or they must be in an employment category identified as a specified category by the Minister. The Act also requires that any changes to specified categories be communicated through Ministerial Declarations, ensuring transparency and proper consultation with relevant stakeholders, including the Australian Defence Force Career Management Agencies, Defence Legal, and the Department of Defence Chief Finance Officer.
The Act imposes specific obligations on the parties it governs. The Minister is required to declare employment categories as specified categories if they present structural impediments to members reaching the minimum rank requirement. The Australian Defence Force Career Management Agencies are responsible for nominating 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 must be consulted during the development of these Declarations. These obligations ensure that the Declarations are both accurate and fair, reflecting the true nature of the employment categories and the challenges faced by members within them.
There are no specific offences or penalties outlined in the Military Superannuation and Benefits (Eligible Members) Declaration 2017. However, any failure to comply with the obligations imposed by the Military Superannuation and Benefits Act 1991 could lead to legal consequences. For example, if the Minister fails to properly declare specified categories or if the Australian Defence Force Career Management Agencies do not accurately nominate employment categories and members, these actions could be subject to judicial review. While the Declaration itself does not impose penalties, non-compliance with the underlying Act could result in legal action or other consequences as determined by the relevant courts.