EXPLANATORY STATEMENT
Military Superannuation and Benefits (Eligible Members) Declaration 2022
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Part 8 of the Act was repealed under Schedule 4 of the Defence Legislation Amendment Act (No. 1) 2005.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 the amendment 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.
This Declaration is a legislative instrument for the purpose of the Legislation Act 2003 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.
To be eligible for the retention benefit under the Act, a person must be an 'eligible member'. An eligible member is defined in subsection 30(1) of the Act and paragraph (f) of the definition includes a member declared by the Minister to be an eligible member.
The purposes of this instrument are as follows.
- It repeals Military Superannuation and Benefits (Eligible Members) Declaration 2020.
- It declares the eligible members for the purpose of the Act who were provided under the repealed Declaration.
- It declares an additional three individual members as eligible members.
Section 1 of this instrument sets out the manner in which this instrument may be cited.
Section 2 provides that this instrument commences on the day after it is registered.
Section 3 provides that this instrument is made under paragraph 30(1)(f) of the definition of eligible member of the Military Superannuation and Benefits Act 1991, as it continues to apply under item 4 to the Defence Legislation Amendment Act (No. 1) 2005.
Section 4 provides that the instrument that is specified in Schedule 3 to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Eligible members by employment categories etc.
Schedule 1 to this instrument lists the employment categories and ranks that a member may hold in order to be part of the class of member to whom this Declaration applies.
Schedule 2—Individual eligible members
Schedule 2 to this instrument lists individuals who have been declared to be eligible members for the purpose of payment of a retention benefit. The list includes an additional three members who were not included in Military Superannuation and Benefits (Eligible Members) Declaration 2020.
Schedule 3—Repeal
Schedule 3 repeals Military Superannuation and Benefits (Eligible Members) Declaration 2020.
Consultation
Consultation was undertaken during the development of this Declaration with the three Australian Defence Force Personnel Management Agencies (who nominate individual members to be listed in the Schedule) and Defence Legal.
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
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Military Superannuation and Benefits (Eligible Members) Declaration 2022
This Determination 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.
Overview of the Determination
The purposes of this instrument are as follows.
- It repeals Military Superannuation and Benefits (Eligible Members) Declaration 2020.
- It declares the eligible members for the purpose of the Act who were provided under the repealed Declaration.
- It declares an additional three individual members as eligible members.
Human rights implications
Right to the enjoyment of just and favourable conditions of work
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.
Assessment of compatibility
This Declaration provides an additional financial benefit to eligible members that assists them to exercise their right to the enjoyment of just and favourable conditions of work.
Conclusion
This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
The Military Superannuation and Benefits (Eligible Members) Declaration 2022 was enacted to clarify and update the list of eligible members for the retention benefit under the Military Superannuation and Benefits Act 1991. This Act was initially introduced to provide superannuation and benefits to members of the Australian Defence Force, and the retention benefit was designed to encourage service members to continue their employment for a longer period. The problem the Declaration addresses is the need to maintain an updated and accurate list of eligible members, ensuring that those who qualify for the retention benefit are properly identified and recognised. The instrument was developed following consultations with relevant Australian Defence Force Personnel Management Agencies and Defence Legal.
The Declaration was enacted by the Parliament of Australia and aims to ensure that the eligibility criteria for the retention benefit are clearly defined and effectively administered. By repealing the previous Military Superannuation and Benefits (Eligible Members) Declaration 2020 and including an additional three individual members, the Declaration maintains the integrity of the retention benefit scheme. This legislative instrument is compatible with human rights, particularly the right to just and favourable conditions of work, as it ensures that eligible members receive the benefits to which they are entitled under the Act.
Scope and Application
The Military Superannuation and Benefits (Eligible Members) Declaration 2022 applies to eligible members of the Australian Defence Force who were part of the Military Superannuation and Benefits Scheme prior to 6 October 2005 and who have completed 15 years of continuous eligible service. The Act applies to specific categories of employment and ranks within the Australian Defence Force, as listed in Schedule 1, and to additional individual members specified in Schedule 2. This instrument, which is a legislative measure under the Legislation Act 2003, aims to provide a retention benefit to eligible members, encouraging them to continue their service for a further five years. The Declaration also repeals the Military Superannuation and Benefits (Eligible Members) Declaration 2020 and updates the list of eligible members to include three additional individuals. The instrument is made under the authority of the Military Superannuation and Benefits Act 1991, as continued in force by the Defence Legislation Amendment Act (No. 1) 2005, and it has been assessed for compatibility with human rights under the Human Rights (Parliamentary Scrutiny) Act 2011.
Key Provisions
The Military Superannuation and Benefits (Eligible Members) Declaration 2022 (the Declaration) serves to amend the eligibility criteria for the retention benefit under the Military Superannuation and Benefits Act 1991 (the Act). It repeals the Military Superannuation and Benefits (Eligible Members) Declaration 2020 and updates the list of eligible members who qualify for the retention benefit. The Declaration declares both categories of employment and specific individuals who are eligible for this benefit. According to section 4, the repealed Declaration is no longer applicable, and any amendments or repeals are to be made as specified in Schedule 3.
The obligations imposed by the Act on eligible members primarily revolve around meeting the criteria set out in section 30(1) of the Act, which includes being an 'eligible member' as defined. This includes being a member who has completed 15 years of continuous eligible service and being declared by the Minister as an eligible member. The Declaration updates the categories of employment and specific individuals who meet these criteria. The Act also requires that the retention benefit is paid to those who meet the eligibility criteria, thereby incentivising continued service for another five years, thereby reaching 20 years of service.
Under the Act, there are no explicit criminal or civil penalties stated for breaches of the eligibility criteria or failure to comply with the provisions of the Act. However, the failure to meet the eligibility criteria as declared by the Minister could result in the non-payment of the retention benefit to the individual. The legal consequences of such a failure would be limited to the financial implications for the individual, as there are no punitive measures specified in the Act or the Declaration for non-compliance.
The Declaration also includes a Statement of Compatibility with Human Rights, which asserts that the Determination 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 ensures that the right to the enjoyment of just and favourable conditions of work is protected, as per Article 7 of the International Covenant on Economic, Social and Cultural Rights. The provision of the retention benefit to eligible members aligns with these human rights principles, ensuring that the members are fairly compensated for their service.