Military Superannuation and Benefits Trust Deed (Amendment) (Instrument No. 3 of 1992)

Administered by Department of Defence

Legislation au F2005B00371 Not in force Legislative Instrument

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EXPLANATORY STATEMENT INSTRUMENT NO 3 OF 1992

ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE SCIENCE

AND PERSONNEL

 

MILITARY SUPERANNUATION AND BENEFITS TRUST DEED

(AMENDMENT)

 

The Schedule to the Trust Deed made by the Minister for Defence Science and Personnel under section 5 or the Military Superannuation and Benefits Act 1991 ("the MSB Act") contains Rules ("the MSB Rules") which deal with:

 

  1. the contributions to be made by members or the Defence Force who are members or the Military Superannuation and Benefits Scheme ("the MSB scheme") established by the Trust Deed in accordance with section 4 or the MSB Act; and

 

b.         the benefits to be provided to members of the MSB scheme upon retirement or to dependants or deceased members or the scheme.

 

The Minister is empowered, by subsection 5(1) or the MSB Act, to amend the Trust Deed (including the MSB Rules), by an instrument which, by subsection 49(1) or the MSB Act, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 

The MSB Rules make provision (in Schedule 6) for members of the Defence Force Retirement and Death Benefits Scheme ("the DFRDB scheme") who transferred to the MSB scheme to be given a credit (in the form of eligible service for the member's employer benefit) in respect of certain service rendered while a member or the DFRDB scheme.              The Rules also make provision (in Schedule 10) for members of the DFRDB scheme who transferred to MSBS to be given a credit (in the form of a transfer value) towards the member's member benefit, in respect of certain contributions paid while a member of the DFRDB scheme.

 

The member benefit consists of several elements including, in the case of a transferred member, the person's transfer value and notional interest thereon.              The elements constituting transfer value are listed in Schedule 10, and include previous contributions made by the person when a member of the DFRDB scheme.              The expression "previous contributions" is defined in Schedule 1 to the MSB Rules to exclude any contributions refunded to the member under the Defence Force Retirement and Death Benefits Act 1973 ("the DFRDB Act").

 

Under the DFRDB scheme, provision exists for members to "purchase" prior service and this can be done by lump sum payment or fortnightly instalments.               The Defence Force Retirement and Death Benefits Scheme Review Committee recommended that such ongoing repayments should not be brought into the MSB scheme.              The Committee recognised that an immediate pay out of the amount due, as a condition of transfer to the MSB scheme, was likely to be too onerous for most members with outstanding repayments and likely to deter them from transferring to the MSB scheme. The Committee accordingly recommended that a procedure be provided under which a

 

 

 

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member with outstanding repayments who elected to transfer would have the debt extinguished on entry by offset against the value of the credit given on entry for the member's previous contributions. Schedule 10 provides accordingly.

 

A member's transfer value is ascertained under Schedule 10 by adding together the member's unrefunded contributions under the DFRDB scheme and notional interest thereon and subtracting any unpaid amount in respect of previous service which the member was repurchasing and any amount which the member was required to repay under the DFRDB Act in respect of gratuities etc which remained unpaid.

 

Some members in this situation repaid their outstanding debts before transferring to the MSB scheme. The manner in which Schedule 10 operated with regard to the transfer value of such a member resulted in Schedule 10 being perceived as creating an anomaly in that it resulted in the double-counting of certain previous contributions.

 

Instrument No 2 of 1992 made by the Minister under subsection 5(1) of the MSB Act amended the MSB Rules to remove the perceived anomaly in the operation of

Schedule 10 but this amendment was disallowed by the Senate on 9 September 1992 on the ground that mem hers who repaid their outstanding debts before transfer to the MSB scheme were deprived by the amendment of the proper value of their contributions under the DFRDB Act.              In the debate on the disallowance motion, the Minister for Defence announced that, if the Instrument were disallowed (thus removing

the reduction in the amount of transfer value for members who transferred on or after 9 September 1992 and who repaid their outstanding debts before transfer), he would amend the Military Superannuation and Benefits Rules to provide members, who had transferred before 9 September 1992, with an equal opportunity to pay to the Commonwealth the amount that could have been paid to repurchase prior service etc

(in place of the offset procedure which had applied to them) if they wish to do so. Instrument No 3 makes the necessary amendments.

 

Since contributions made under the DFRDB Act are paid into consolidated revenue and do not accrue interest, it is to the financial advantage of a re-entered member of the DFRDB scheme who elects to purchase prior service to defer repayment of

contributions for as long as possible. Consequently, it is the invariable practice for re­ entered members to elect repayment by instalments instead of by lump sum and to repay the outstanding balance as a lump sum immediately before retirement.              It was assumed that members with outstanding repayments would not repay before transfer to the MSB scheme and would therefore be subject to the offset procedure.

 

The information kits and other information provided to each member to enable him or her to make an informed judgement on whether to transfer to the MSB scheme, did not inform members with outstanding repayments of the fact that repayment before

transfer was an option to the offset procedure, nor did it provide any information about

the financial effect of repaying debts before transfer. On grounds of equity, these members should also be given an opportunity to pay to the Commonwealth an amount which could have been used to repurchase prior service instead of the member being subject to the offset procedure.              The amendments made by Instrument No 3 are accordingly extended to all members who transferred since the beginning of the MSB scheme on 1 October 1991 and to whom the offset procedure applied.

 

In the case of serving members, the amendments provide for an adjustment to be made to the person's transfer value. Members who have retired, or who will have retired

 

 

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before having an opportunity to take advantage of the amendments made by Instrument No 3 relating to the transfer value, will have already been paid the member benefit (of which the transfer value is a component) or will have preserved the member benefit in the Fund, and in these cases it is appropriate to provide for additional member benefit instead of adjusting the transfer value.

 

  1. Interpretation

 

This clause defines expressions used in the Instrument.

 

2.                Amendment This clause is formal.

3.                Schedule 9(CALCULATION OF MEMBER BENEFIT)

 

Schedule 9 to the MSB Rules describes what a member benefit comprises, namely, contributions and interest and, in the case of transferees from the DFRDB scheme, the person's transfer value plus notional interest on the transfer value.

 

Subclause 3.1 clarifies the reference in subparagraph l(e) to a person who has retired.

 

Subclause 3.3. In calculating the additional member benefit for a person who pays an amount to the Commonwealth under new paragraph 3 of Schedule 9 or new paragraph 3 of Schedule 10 (inserted by subclauses 3.4 and 4.1, respectively, of Instrument No 3), the existing subparagraph l(e) would have the effect of crediting the person with notional interest on the amount paid with effect from the person's date of transfer to the MSB scheme.              However, the Commonwealth should not be liable to pay interest in respect of a period before it is paid the amount in question, and subclause 3.3 amends subparagraph l(e) of Schedule 9 to exclude interest in respect of this period from the additional member benefit which becomes payable as a result of any payment made by a person under the amended provisions.

 

Subclause 3.4 inserts new paragraphs 2 and 3.

 

New paragraph 2 deals with a transferred person (who has retired) who was affected by the disallowed instrument on retirement.              It deals with a member who repaid all of the outstanding repayments before transfer to the MSB scheme and a member who repaid part of the outstanding repayments.              It provides, by way of additional member benefit, for payment lo the person of the additional amount to which the person would have been entitled if the disallowed amendments had not been made.              In the case of members who repaid part of the outstanding repayments before transfer and to whom the offset procedure applied in respect of the unpaid amount, the question of the

unpaid amount is dealt with in new paragraph 3.

 

New paragraph 3 deals with a transferred person (who has retired) to whom the offset procedure applied and provides him or her with an opportunity to pay to the Commonwealth, within 90 days after the commencement of Instrument No 3, an amount equal to all or part of the amount which was offset on transfer.              If the person makes such a payment, the person receives an addition to the member benefit.

 

 

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4.                Schedule  10 (TRANSFER VALUE)

 

Schedule 10 to the MSB Rules provides for a transfer value in respect of members who transferred to the MSB scheme from the DFRDB scheme, the transfer value being a notional amount which was credited to a transferee, on transfer, in respect of his or her contributions under the DFRDB scheme and notional interest on that amount up to the date of transfer.              Provision is made for the amount so calculated to be reduced by any amounts unpaid by the member in respect of service that was being repurchased immediately before transfer.

 

Subclause 4.1 amends Schedule 10 by adding new paragraph 3 which allows persons who transferred to MSBS to whom the offset procedure applied (other than members who have since retired, for whom provision is made by the amendments made to Schedule 9) to pay to the Commonwealth, within 90 days after the commencement of Instrument No 3, all or part of the amount which was offset on transfer.              If a member makes such a payment, the transfer value applicable is increased accordingly.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Overview

The Military Superannuation and Benefits Trust Deed (Amendment) Instrument No 3 of 1992 was introduced to amend the Military Superannuation and Benefits Trust Deed made under the Military Superannuation and Benefits Act 1991. This Act was enacted by the Parliament of Australia to address the issue of providing fair and equitable treatment to members of the Defence Force Retirement and Death Benefits Scheme who transferred to the Military Superannuation and Benefits Scheme. The problem this legislation sought to address was the perceived anomaly in the transfer value calculations for those who had outstanding debts that were repaid before transferring to the MSB scheme. The Minister for Defence Science and Personnel was empowered to amend the Trust Deed under subsection 5(1) of the MSB Act, and this amending instrument was issued to provide an equitable solution for affected members, ensuring that all members have an opportunity to pay an amount equivalent to the value of their contributions, rather than being subject to the offset procedure. The policy objective is to ensure that members of the MSB scheme receive benefits that accurately reflect their contributions and service.

Scope and Application

The Military Superannuation and Benefits Trust Deed (Amendment) Instrument No 3 of 1992 applies to members of the Defence Force Retirement and Death Benefits Scheme who have transferred to the Military Superannuation and Benefits Scheme. This legislation amends the Trust Deed to address anomalies that arose from the disallowed Instrument No 2 of 1992, which initially attempted to rectify an issue with the calculation of transfer values for certain members. Specifically, the amendments aim to provide members who had outstanding debts under the Defence Force Retirement and Death Benefits Act 1973 with an opportunity to pay an amount to the Commonwealth, thereby avoiding an offset procedure that applied to their transfer value. The Act applies nationally, affecting all members who transferred to the MSB scheme since its inception on 1 October 1991, regardless of their current status within the Defence Force. The changes extend to both serving members, who receive an adjustment to their transfer value, and retired members, who are provided with additional member benefit instead of an adjustment to their transfer value. There are no stated exclusions or exemptions in this amendment, and its application is comprehensive within the defined scope of the MSB scheme.

Key Provisions

The Military Superannuation and Benefits Trust Deed (Amendment) Instrument No 3 of 1992 amends the Military Superannuation and Benefits Rules to address issues related to the transfer of members from the Defence Force Retirement and Death Benefits Scheme (DFRDB scheme) to the Military Superannuation and Benefits Scheme (MSB scheme). The primary focus of the amendments is to provide equity to members who had outstanding debts or repayments under the DFRDB scheme but repaid these debts before transferring to the MSB scheme. Specifically, the amendments, detailed in Schedule 9 and Schedule 10 of the MSB Rules, aim to correct an anomaly that resulted from the previous amendments which were disallowed by the Senate on 9 September 1992. The MSB Rules now provide a mechanism for members who had outstanding debts under the DFRDB scheme, and to whom the offset procedure applied, to pay an amount to the Commonwealth within 90 days of the commencement of Instrument No 3. This payment is intended to offset the amount that was previously deducted from their transfer value. For serving members, this results in an adjustment to their transfer value. For members who have already retired, the amendment provides for an additional member benefit instead of adjusting the transfer value. This ensures that all members who were affected by the disallowed amendments, including those who repaid all or part of their outstanding debts before transferring to the MSB scheme, have the opportunity to rectify the impact of those disallowed amendments. Under the MSB Rules, members who transferred to the MSB scheme from the DFRDB scheme are entitled to a transfer value, which is a notional amount credited to them in respect of their contributions under the DFRDB scheme and notional interest thereon. The amendments to Schedule 10 allow members who had the offset procedure applied to their transfer value to pay to the Commonwealth an amount equivalent to the offset, thereby increasing their transfer value. This is an opportunity for members to correct the perceived anomaly in the operation of the previous rules. The MSB Rules impose obligations on members to make payments to the Commonwealth within the specified timeframe if they wish to rectify the impact of the disallowed amendments. Members who choose to make such payments will receive additional member benefits or have their transfer value increased accordingly. The rules also mandate that the Commonwealth should not be liable to pay interest on amounts paid under the amended provisions for periods before the payment is made. Failure to comply with the provisions of the amended MSB Rules may lead to civil consequences, including the potential for members not to receive the additional member benefits or the increase in transfer value to which they are entitled. The MSB Rules do not explicitly state criminal or civil penalties for non-compliance, but the failure to adhere to the provisions could result in disputes or claims against the Commonwealth for members who do not receive the benefits to which they are entitled under the amended rules.

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