Defence Force Retirement and Death Benefits Act 1973

Subject to subsection (2), this Act shall come into operation on the day on which it receives the Royal Assent.

Sections 3 to 6 (inclusive), and Parts III to IX (inclusive), shall be deemed to have come into operation on 1 October 1972 and, subject to this Act, contributions under section 17 are payable to the Commonwealth, and benefits under this Act are payable by the Commonwealth, on and after that date accordingly.

in the case of a member who is a member of the Permanent Forces—the age for compulsory retirement of the member ascertained in accordance with, or in accordance with regulations under, the Naval Defence Act 1910‑1971, the Defence Act 1903‑1970 or the Air Force Act 1923‑1965; or

in the case of a member who is not a member of the Permanent Forces—the age for compulsory retirement, as ascertained in accordance with paragraph (a), of a member of the same rank and branch who is a member of the Permanent Forces.

For the purposes of the definition of eligible member of the Defence Force in subsection 3(1), a member of the Defence Force serving on continuous full‑time service shall not be deemed to have ceased to be on continuous full‑time service during any period that is deemed by section 6 to be a period of non‑effective service in relation to the member.

Where a contributing member ceases to be on continuous full‑time service but continues to be a member of the Defence Force he shall, for the purposes of this Act, be deemed to have retired on the day on which he ceases to be on continuous full‑time service.

Where a contributing member retires and, without a break in the continuity of his service, again becomes an eligible member of the Defence Force serving on continuous full‑time service, he shall, for the purposes of this Act, be deemed not to have ceased to be an eligible member of the Defence Force by reason of that retirement.

Subsection (3) does not apply in relation to a person who is taken to have retired under section 5B.

Subject to subsection (2), a person who:

becomes, on or after 1 October 1991, a member of the Defence Force; or

being a member of a Reserve, commences on or after that day to render continuous full‑time service for a period of not less than 12 months;

Subsection (1) does not apply to:

a person who:

ceased to be an eligible member of the Defence Force because he or she was transferred to a Reserve, was discharged from the Defence Force, or had his or her continuous full‑time service terminated, under the Defence (Parliamentary Candidates) Act; and

under Part III of that Act is transferred back to, reinstated in, or accepted for further continuous full‑time service in, the force of which he or she was a member immediately before ceasing to be an eligible member of the Defence Force; or

a person to whom section 63 applies.

This section applies if:

a person is an eligible member of the Defence Force; and

the person commences as a continuous full‑time Reservist as a result of an engagement that is made before 1 July 2016; and

the period of the engagement is extended on or after that day.

For the purposes of this Act, the person is taken:

to have retired, but not at his or her own request, on the day before the day (the extension day) the period of the engagement is extended; and

to have commenced as a continuous full‑time Reservist on the extension day.

The effect of this section is that this Act applies in relation to service before the extension day, while the Australian Defence Force Superannuation Act 2015 applies in relation to service on and after the extension day.

For the purposes of this Act, disregard as a period of effective service the service rendered on or after the extension day of any member who is taken to have retired under this section.

Where a member of the scheme has, for any period commencing on or after the date of commencement of the scheme and ending before 3 July 1985, being a period that exceeds 21 consecutive days, been:

on leave of absence without pay;

absent without leave;

awaiting or undergoing trial on a charge in respect of which he is later convicted; or

undergoing field punishment, detention or imprisonment;

Where a member of the scheme has, for any period commencing before the date of commencement of the scheme but ending on or after that date, being a period that exceeds 21 consecutive days, been absent without leave, so much of that period as commenced on the date of commencement of the scheme shall be deemed to be a period of non‑effective service in relation to him.

Where a member of the scheme was on leave of absence without pay for a period:

that commenced:

on or after 3 July 1985; or

on or after the date of commencement of the scheme and ended on or after 3 July 1985; and

that exceeded 21 consecutive days;

Where:

the salary and allowances of a member of the scheme in respect of a period were, on or after 3 July 1985, forfeited, in whole or in part, under regulations made under the Defence Act 1903;

the period exceeded 21 consecutive days; and

an amount equal to the amount of the salary and allowances forfeited was not subsequently paid, and is not payable, under those regulations to the member;

Where:

a member of the scheme was in custody under the Defence Force Discipline Act 1982 awaiting or undergoing trial for a service offence;

the period for which the member was in custody awaiting or undergoing trial:

commenced:

on or after 3 July 1985; or

on or after the date of commencement of the scheme and ended on or after 3 July 1985; and

exceeded 21 consecutive days;

the member was subsequently convicted of the offence or another service offence at the trial; and

either of the following subparagraphs apply:

the conviction was not quashed or set aside;

the conviction was quashed or set aside and:

a conviction for another service offence was substituted; or

the member was ordered to be tried again for the offence of which the member was convicted, or for another service offence, and was convicted of a service offence at the subsequent trial;

Where:

2 or more consecutive periods of 24 hours or more would, but for paragraph (3)(b), paragraph (4)(b) or subparagraph (5)(b)(ii) or 2 or all of those provisions, be deemed to be periods of non‑effective service in relation to a member of the scheme; and

the periods exceed, in the aggregate, 21 days;

Where:

a period of 24 hours or more would, but for paragraph (3)(b), paragraph (4)(b) or subparagraph (5)(b)(ii), be deemed to be a period of non‑effective service in relation to a member of the scheme; and

the period is consecutive with a period that, under subsection (3), (4) or (5), is deemed to be a period of non‑effective service in relation to the member;

Where:

a period of 24 hours or more would, but for paragraph (3)(b), paragraph (4)(b) or subparagraph (5)(b)(ii), be deemed to be a period of non‑effective service in relation to a member of the scheme; and

the period is consecutive with a period that, under subsection (7) or this subsection, is deemed to be a period of non‑effective service in relation to the member;

For the purposes of this Act, a person had a marital or couple relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time.

For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at a particular time only if:

the person had been living with that other person as that other person’s husband, wife, spouse or partner for a continuous period of at least 3 years up to that time; or

the person had been living with that other person as that other person’s husband, wife, spouse or partner for a continuous period of less than 3 years up to that time and CSC, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time;

For the purposes of this Act, a marital or couple relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).

For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:

the person was wholly or substantially dependent on that other person at the time;

the persons were legally married to each other at the time;

the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;

the persons had a child who was:

born of the relationship between the persons; or

adopted by the persons during the period of the relationship; or

a child of both of the persons for the purposes of the Family Law Act 1975;

the persons jointly owned a home which was their usual residence.

For the purposes of this section, a person is taken to be living with another person if CSC is satisfied that the person would have been living with that other person except for a period of:

temporary absence; or

absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).

In this section:

For the purposes of this Act, a person is a spouse who survives a deceased person if the person had a marital or couple relationship with the deceased person at the time of the death of the deceased person.

In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:

the person had previously had a marital or couple relationship with the deceased person; and

the person did not, at the time of the death, have a marital or couple relationship with the deceased person but was legally married to the deceased person; and

in CSC’s opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.

If:

benefits become payable to or in respect of a member of the scheme; and

the member’s surcharge debt account is in debit when those benefits become so payable;

In making the determination, CSC must have regard to the following:

the amount by which the member’s surcharge debt account is in debit when those benefits become payable;

the value of the employer‑financed component of those benefits;

the value of the benefits that, for the purpose of working out (under the Superannuation Contributions Tax (Assessment and Collection) Act 1997) the notional surchargeable contributions factors applicable to the member, were assumed to be likely to be payable to the member on his or her retirement;

whether the member has or had qualified for his or her maximum benefit entitlement under this Act;

any other matter that CSC considers relevant.

The amount determined by CSC may not be more than the total of the following amounts:

15% of the employer‑financed component of any part of the benefits payable to the member that accrued between 20 August 1996 and 1 July 2003;

14.5% of the employer‑financed component of any part of the benefits payable to the member that accrued in the 2003‑2004 financial year;

12.5% of the employer‑financed component of any part of the benefits payable to the member that accrued in the 2004‑2005 financial year.

Reductions under Division 3 of Part VIA are to be disregarded in applying subsection (3) of this section.

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Subject to sections 18 and 18A, an eligible member of the Defence Force shall pay to the Commonwealth fortnightly contributions in accordance with this Act.

Subsection (1) does not apply to an eligible member of the Defence Force who:

was a recipient member immediately before he became an eligible member; and

is serving under an appointment or enlistment for a period of less than one year that commenced after the commencement of this subsection.

Subject to subsection (3), the first fortnightly contribution is payable by an eligible member of the Defence Force:

in the case of a person who is such a member on the date of commencement of the scheme—on the first pay‑day next following that date; or

in any other case—on the day on which the person becomes an eligible member of the Defence Force or, if that day is not a pay‑day, on the first pay‑day next following that day.

Where an eligible member of the Defence Force dies before the day on which, but for his death, his first fortnightly contribution would have been payable, that contribution shall be deemed to have become payable by him on the day on which he became an eligible member of the Defence Force.