Schedule 2—Notional retiring age for certain officers retiring at own request or on disciplinary grounds, or entitled to deferred benefit retirement pay 171

130A..... Repayment of amounts that have been refunded to the Commonwealth 162

80.......... Certain former contributing members not entitled to benefits under this Division 117

79.......... Person who is entitled to rights under this Division not entitled to other retirement benefits 117

Division 3—Preservation of rights of contributing members ceasing to be eligible members of the Defence Force 102

61A....... Payment of refund of contributions or of lump sum payment to Board in discharge of liability under the Superannuation Act 1990 ............................................................................................ 88

61.......... Payment of refund of contributions or of lump sum payment to Commissioner for Superannuation in discharge of liability under Superannuation Act.................................................... 87

57.......... Election by officer on short service commission who continues to serve in respect of period of service under short service commission........................................................................... 85

55.......... Rights of contributing members who resign to contest elections and are not re‑instated 82

48A....... Lump sum payments on or after death—members with more than one period of effective service 69

48.......... Lump sum payments on or after death—members with only one period of effective service 67

41.......... Rate of pension payable on death of member of scheme leaving more than one spouse 55

An Act to make provision for and in relation to a Scheme for Retirement and Death Benefits for Members of the Defence Force

Part I—Preliminary

1 Short title [see Note 1]

This Act may be cited as the Defence Force Retirement and Death Benefits Act 1973.

2 Commencement [see Note 1]

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

(2) 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.

3 Interpretation

(1) In this Act, unless the contrary intention appears:

additional contribution means an additional contribution payable under section 21, 64, 87, 89 or 93.

annual rate of pay, in relation to a member of the Defence Force on a particular day, means the amount, that, under the regulations, is the annual pay applicable to the member on that day.

Authority means the Defence Force Retirement and Death Benefits Authority established by section 8.

benefit means pension benefit, and includes a lump sum payment under subsection 32(2) or section 48 and a refund of contributions under section 56.

Board has the same meaning as in the Superannuation Act 1990.

child, in relation to a deceased member of the scheme, includes:

(a) a person who:

(i) is an ex‑nuptial child of the member; or

(ii) is, immediately before the member’s death, a stepchild, an adopted child, a foster child or a ward, of the member; or

(iii) was, immediately before the member’s death, someone who would have been the stepchild of the member except that the member was not legally married to a spouse who survives the member; or

(iv) is a child of the member within the meaning of the Family Law Act 1975; and

(b) a person who:

(i) is a child or ex‑nuptial child of a spouse who survives the member; and

(ii) was wholly or substantially dependent upon the member at the time of the member’s death; and

(c) a person who:

(i) is, within the meaning of the Family Law Act 1975, a child of a spouse who survives the member; and

(ii) was wholly or substantially dependent upon the member at the time of the member’s death.

child’s pension means pension payable under Division 2 of Part VI.

Commissioner for Superannuation means the Commissioner for Superannuation under the Superannuation Act, and includes an acting Commissioner for Superannuation under that Act.

contributing member means a member of the Defence Force who is making, or is required to make, or, but for section 18 or 18A, would be required to make, contributions under section 17.

contributions means contributions payable under section 17, and includes any additional contributions or previous contributions.

date of commencement of the scheme means 1 October 1972.

Defence (Parliamentary Candidates) Act means the Defence (Parliamentary Candidates) Act 1969 or the Defence (Parliamentary Candidates) Act 1969‑1973.

eligible child means a person who:

(a) is the child of a deceased member of the scheme who died while he was a contributing member or of a deceased recipient member; and

(b) is a person who has not attained the age of 16 years or:

(i) has attained the age of 16 years but has not attained the age of 25 years;

(ii) is receiving full‑time education at a school, college or university; and

(iii) is not ordinarily in employment or engaged in work on his own account.

eligible member of the Defence Force means:

(a) a member of the Defence Force who:

(i) is serving on continuous full‑time service under an appointment or engagement, or under a re‑appointment or re‑engagement, for a period of not less than one year; or

(ii) is serving on continuous full‑time service, being service that is continuous with previous continuous full‑time service that was, or included, service under an appointment or engagement, or under a re‑appointment or re‑engagement, for a period of not less than one year; or

(b) a member of the Defence Force:

(i) to whom paragraph (a) does not apply;

(ii) who is serving on continuous full time service; and

(iii) who, immediately before commencing to serve, was a recipient member, was a member of the scheme to whom deferred benefits were applicable under section 78, was a person who was in receipt of, or but for a suspension of his pension under section 53A or 53B of the previous Act, would have been in receipt of, a pension under the previous benefits scheme (being a pension to which he became entitled on retirement from the Defence Force) or was a person to whom deferred benefits were applicable under section 82ZB of the previous Act;

but does not include:

(c) a person who, under section 5A, is excluded from this definition;

(d) a person to whom section 90 applies and who does not make an election under that section; or

(e) a person who has ceased, or is taken to have ceased, under section 134 or 138 to be an eligible member of the Defence Force.

eligible orphan means an eligible child who is an orphan, and includes an eligible child who is not an orphan but who is in the custody, care and control of, and is wholly or substantially dependent on, a person other than a person to whom widow’s pension or spouse pension is, or was at any time, payable.

existing contributor means a person who:

(a) immediately before 1 October 1972 was making, or was required to make, or, but for subsection 4AA(2), paragraph 23(5)(b) or (c), or subsection 36(1), of the previous Act, would have been required to make, contributions to the Defence Forces Retirement Benefits Fund under the previous legislation; and

(b) on that date, without having ceased to be on continuous full‑time service, became an eligible member of the Defence Force for the purposes of this Act.

Finance Minister means the Minister administering the Financial Management and Accountability Act 1997.

fortnightly rate of pay, in relation to a member of the Defence Force on a particular day, means an amount calculated in accordance with the formula:

where A is the annual rate of pay applicable to him on that day.

invalidity benefit means invalidity benefit under section 26.

invalidity pay means invalidity benefit consisting of invalidity pay.

marital or couple relationship has the meaning given by section 6A.

member of the Defence Force does not include a person who is a member as defined by subsection 3(1) of the Defence Force (Papua New Guinea) Retirement Benefits Act 1973.

member of the scheme means a person who is, or at any time on or after the date of commencement of the scheme, has been, an eligible member of the Defence Force.

MSB scheme means the superannuation scheme established under the Military Superannuation and Benefits Act 1991.

officer means a member of the Defence Force who is an officer for the purposes of the Defence Act 1903‑1970.

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

pension benefit means retirement pay, invalidity pay, widow’s pension, spouse pension or child’s pension.

period of effective service, in relation to a member of the scheme, means:

(a) any period commencing on or after the date of commencement of the scheme during which he is an eligible member of the Defence Force, less any period included in such a period that:

(i) is a period of non‑effective service in relation to him; or

(ii) is a period that, under section 57 or 58, is to be disregarded as a period of effective service in relation to him; and

(b) any period that is deemed to be a period of effective service in relation to him under section 21, subsection 62(3) or section 64 or 91.

period of non‑effective service, in relation to a member of the scheme, means a period that, under section 6, is deemed to be a period of non‑effective service in relation to him.

Permanent Forces means the Permanent Navy, the Regular Army and the Permanent Air Force.

previous Act means the Defence Forces Retirement Benefits Act 1948 or that Act as amended and in force from time to time before 1 October 1972.

previous benefits scheme means the retirement benefits scheme provided for in the previous legislation.

previous contributions, in relation to a person, means contributions made by him under the previous legislation, less any such contributions refunded to him under the previous legislation or (except for the purposes of Part X) under section 86 of this Act.

previous legislation means the previous Act, and includes any other Act relating to retirement benefits for members of the Defence Force that came into operation before 1 October 1972 and modifies or affects the provisions of the previous Act.

productivity superannuation benefit, in relation to a member of the scheme, means productivity superannuation benefit payable in respect of the member under the determination made by the Minister under section 52 of the Defence Act 1903.

rank, in relation to a member of the Defence Force, means:

(a) his substantive rank or, if he is appointed provisionally or on probation, the rank to which he is so appointed; or

(b) if he is provisionally promoted to another rank—that other rank.

recipient member means a member of the scheme who is entitled to retirement pay or invalidity pay, and includes:

(a) a member of the scheme who, but for the suspension of his or her invalidity pay under subsection 35(3) or 61D(2), would be entitled to invalidity pay; and

(b) a member of the scheme who, but for the suspension of his or her retirement pay under subsection 61C(1), would be entitled to retirement pay.

Reserve means:

(a) in relation to a member of the Navy—the Naval Reserve; and

(b) in relation to a member of the Army—the Army Reserve; and

(c) in relation to a member of the Air Force—the Air Force Reserve.

retirement means retirement as a member of the Defence Force, and includes discharge from the Defence Force, and retire has a corresponding meaning.

retirement pay means retirement pay payable under section 23.

Rules for the administration of the Superannuation (1990) Scheme means the rules for the administration of that scheme set out in the Schedule to the deed by which that scheme was established.

service means service as a member of the Defence Force.

service offence has the same meaning as in the Defence Force Discipline Act 1982.

spouse has a meaning affected by section 6B.

spouse pension means pension payable under Division 1 of Part VI.

Superannuation Act means the Superannuation Act 1976.

Superannuation (1990) Scheme means the Superannuation Scheme established by deed under the Superannuation Act 1990.

surcharge debt account, in relation to a member of the scheme, means the surcharge debt account kept for the member by the Authority under section 16 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997.

surcharge deduction amount, in relation to a member of the scheme to or in respect of whom benefits become payable under this Act, means the surcharge deduction amount that is specified in the determination made by the Authority, under section 6C, in relation to the member.

total period of effective service, in relation to a member of the scheme, means, subject to subsections 62(4) and (5):

(a) in the case of a member in relation to whom there is only one period of effective service—that period; or

(b) in the case of a member in relation to whom there are 2 or more periods of effective service—a period equal to the total of those periods.

(2) A reference in this Act to benefit under subsection 32(2) shall be read as including a reference to a refund of contributions under that subsection.

(3) A reference in this Act to a provision of the Superannuation Act shall, except where the context otherwise requires, be read as including a reference to that provision as modified by regulations made under that Act.

(5) Where, at any time after 1 October 1972, an existing contributor:

(a) ceases to be an eligible member of the Defence Force; and

(b) after so ceasing to be such a member again becomes an eligible member of the Defence Force;

that person shall, for the purposes of sections 25, 33, 86, 87, 87A, 92 and 95, be taken not to be an existing contributor in respect of any period after he or she so ceases to be such a member.

4 Retiring age for rank held

For the purposes of this Act, the retiring age for the rank held by a member of the Defence Force at any time is:

(a) 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

(b) 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.

5 Continuity of service

(1) 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.

(2) 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.

(3) 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.

5A Persons excluded from definition of eligible member of the Defence Force

(1) Subject to subsection (2), a person who:

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

(b) 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;

is excluded from the definition of eligible member of the Defence Force in subsection 3(1).

(2) Subsection (1) does not apply to:

(a) a person who:

(i) 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

(ii) 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

(b) a person to whom section 61B applies and who has elected under that section to become a contributory member; or

(c) a person to whom section 63 applies.

6 Non‑effective service

(1) 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:

(a) on leave of absence without pay;

(b) absent without leave;

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

(d) undergoing field punishment, detention or imprisonment;

that period shall be deemed to be a period of non‑effective service in relation to him.

(2) 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.

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

(a) that commenced:

(i) on or after 3 July 1985; or

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

(b) that exceeded 21 consecutive days;

the period shall be deemed to be a period of non‑effective service in relation to the member.

(4) Where:

(a) 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;

(b) the period exceeded 21 consecutive days; and

(c) 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;

the period shall be deemed to be a period of non‑effective service in relation to the member.

(5) Where:

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

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

(i) commenced:

(A) on or after 3 July 1985; or

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

(ii) exceeded 21 consecutive days;

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

(d) either of the following subparagraphs apply:

(i) the conviction was not quashed or set aside;

(ii) the conviction was quashed or set aside and:

(A) a conviction for another service offence was substituted; or

(B) 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;

the period shall be deemed to be a period of non‑effective service in relation to the member.

(6) Where:

(a) 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

(b) the periods exceed, in the aggregate, 21 days;

the periods shall be deemed to be periods of non‑effective service in relation to the member.

(7) Where:

(a) 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

(b) 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;

the period shall be deemed to be a period of non‑effective service in relation to the member.

(8) Where:

(a) 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

(b) 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;

the period shall be deemed to be a period of non‑effective service in relation to the member.

6A Marital or couple relationship

(1) 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 or wife or partner on a permanent and bona fide domestic basis at that time.

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

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

(b) the person had been living with that other person as that other person’s husband or wife or partner for a continuous period of less than 3 years up to that time and the Authority, 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 or wife or partner on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to that other person.

(3) 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).

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

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

(b) the persons were legally married to each other at the time;

(ba) the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;

(c) the persons had a child who was:

(i) born of the relationship between the persons; or

(ii) adopted by the persons during the period of the relationship; or

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

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

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

(a) temporary absence; or

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

6B Spouse who survives a deceased person

(1) In this section:

deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.

(2) 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.

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

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

(b) 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

(d) in the Authority’s opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.

6BA Benefits for certain spouses in post‑retirement marital or couple relationships

(1) This section applies if:

(a) a spouse survives a deceased person (within the meaning of section 6B); and

(b) the spouse’s marital or couple relationship with the deceased person:

(i) began after the recipient member became a recipient member; and

(ii) began after the recipient member reached 60; and

(iii) continued for a period (the period of the relationship) of less than 3 years up to the time of the deceased member’s death.

(2) The rate of the spouse pension to which the spouse is entitled is worked out using the following formula:

(3) If the rate worked out under subsection (2) is less than or equal to the rate prescribed by the regulations for the purposes of this section, the spouse is instead entitled to a lump sum payment worked out in accordance with the regulations.

6C Surcharge deduction amount

(1) If:

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

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

the Authority must determine in writing the surcharge deduction amount that, in its opinion, it would be fair and reasonable to take into account in working out the amount of those benefits.

(2) In making the determination, the Authority must have regard to the following:

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

(b) the value of the employer‑financed component of those benefits;

(c) 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;

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

(e) any other matter that the Authority considers relevant.

(3) The amount determined by the Authority may not be more than the total of the following amounts:

(a) 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;

(b) 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;

(c) 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.

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

6D Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

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





Part II—Defence Force Retirement and Death Benefits Authority

7 Interpretation

In this Part, unless the contrary intention appears:

Chairman means the Chairman of the Authority.

Deputy Chairman means the member who is the Deputy Chairman of the Authority, but does not include the deputy member who is the deputy of that member.

deputy member means a deputy of a member who is appointed under section 9.

member means the Chairman or other member of the Authority.

8 Constitution of Authority

(1) There shall be a Defence Force Retirement and Death Benefits Authority, which, subject to the directions of the Minister, shall have the general administration of this Act.

(2) The Authority shall consist of:

(a) the Commissioner for Superannuation, who shall be the Chairman of the Authority; and

(ab) the Deputy Chairman of the Authority who is to be appointed by the Minister; and

(b) 3 other members, who shall be appointed in accordance with this section.

(3) The members referred to in paragraph (2)(b) shall be appointed by the Minister and:

(b) one shall be appointed on the nomination of the Chief of Navy;

(c) one shall be appointed on the nomination of the Chief of Army; and

(d) one shall be appointed on the nomination of the Chief of Air Force.

(5) Subject to this Act, a member referred to in paragraph (2)(ab) or (b) holds office until the expiration of such period, not exceeding 2 years, as is specified in the instrument of appointment, but is eligible for re‑appointment.

(6) An act or decision of the Authority is not invalid by reason only of a vacancy or vacancies in the membership of the Authority.

9 Deputies of members

(1) Subject to this section, the Minister may appoint a person to be the deputy of a member.

(3) The deputy of the member nominated by the Chief of Navy shall be appointed on the nomination of the Chief of Navy.

(4) The deputy of the member nominated by the Chief of Army shall be appointed on the nomination of the Chief of Army.

(5) The deputy of the member nominated by the Chief of Air Force shall be appointed on the nomination of the Chief of Air Force.

(7) Subject to this Act, a deputy member holds office until the expiration of such period, not exceeding 2 years, as is specified in the instrument of his appointment or until the member of whom he is the deputy ceases to hold office, whichever first occurs, but is eligible for re‑appointment.

(8) In the absence of an ordinary member, that is to say, a member other than the Chairman or the Deputy Chairman, from a meeting of the Authority, the deputy of that ordinary member may attend the meeting and is to be taken, while so attending, to have all the powers and functions of an ordinary member.

10 Irregularities in nomination of members and deputy members

The validity of the appointment of a member referred to in paragraph 8(2)(b), or of a deputy of a member, shall not be called in question by reason only of a defect or irregularity in connexion with the nomination of the member or deputy member.

11 Termination of appointment

Where, in the opinion of the Minister, it is desirable or necessary to terminate the appointment of a member or of a deputy member, the Minister may terminate the appointment accordingly.

12 Resignation of members

A member (other than the Chairman), or a deputy member, may resign office by writing signed by him or her addressed to the Minister, but the resignation does not have effect until it is accepted by the Minister.

13 Allowances

A member, or a deputy member, shall be paid such allowances, if any, as are payable to him under the regulations.

14 Meetings of Authority

(1) The Authority shall hold such meetings as are necessary for the performance of its functions.

(2) The Chairman may, at any time, convene a meeting of the Authority.

(3) At a meeting of the Authority, a quorum is constituted by the Chairman or his or her deputy and not less than 2 other members, or by the Deputy Chairman and not less than 2 other members.

(4) The Chairman shall preside at all meetings of the Authority at which he is present.

(5) In the absence of the Chairman from a meeting of the Authority:

(a) if the deputy of the Chairman is present—he or she is to preside at the meeting; and

(b) if the deputy of the Chairman is not present—the Deputy Chairman is to preside at the meeting.

(6) Questions arising at a meeting of the Authority shall be determined by a majority of the votes of the members present.

(7) The member presiding at a meeting of the Authority has a deliberative vote, and, in the event of an equality of votes, also has a casting vote.

15 Delegation by Authority

(1) The Authority may, by resolution, delegate to a member or to a deputy member, or to any other person, either generally or otherwise as provided in the instrument of delegation, all or any of its powers or functions under this Act, except this power of delegation.

(2) The power or function so delegated shall be exercised and performed by the delegate in accordance with the instrument of delegation.

(3) A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Authority.

(4) A delegation under this section continues in force notwithstanding a change in the membership of the Authority.

16 Reports

(1) The Authority shall, at such time and in respect of such periods as the Minister directs, furnish to the Minister reports dealing with the general administration and working of this Act and (except in respect of any period commencing before 1 October 1972) of the previous Act (other than Part III of that Act).

(2) The Minister shall, as soon as practicable after receiving a report, cause a copy of the report to be laid before each House of the Parliament.





Part III—Contributions

17 Contributions by members of scheme

(1) 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.

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

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

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

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

(a) 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

(b) 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.

(3) 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.

18 Contributions not to be paid during periods of non‑effective service

An eligible member of the Defence Force is not required to pay any fortnightly contribution that, but for this section, would become payable on a day included in a period that is a period of non‑effective service in relation to him.

18A Contributions not to be paid after 40 years of effective service

An eligible member of the Defence Force whose total period of effective service is 40 years or more is not required or permitted to pay any fortnightly contributions.

19 Amount of fortnightly contributions

(1) The amount of each fortnightly contribution to be paid by a contributing member is an amount equal to 5.5% of the fortnightly rate of pay applicable to the member on the day on which the contribution is payable.

(2) Where the amount of a fortnightly contribution payable by a contributing member includes a fraction of a cent:

(a) if the fraction is less than one‑half of a cent—the contribution shall be deemed to be reduced by the amount of the fraction; or

(b) if the fraction is one‑half of a cent or more—the contribution shall be deemed to be increased by treating the fraction as one cent.

20 Amount of contributions on reduction in pay

(1) Where the annual rate of pay applicable to a contributing member changes, otherwise than by reason of the member ceasing to hold an acting or temporary rank, or of the amendment of the Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations made by section 9 of the Defence Force Retirement and Death Benefits Amendment Act 1981 and, as a result of the change, the amount of each fortnightly contribution to be paid by him would, if he did not make an election under this subsection, become less, he may, by notice in writing given to the Authority within a period of 90 days after the change, or within such further period as the Authority, in special circumstances, allows, elect to have that change in his annual rate of pay disregarded, and, if he so elects, the change shall be disregarded for the purposes of this Act.

(2) Where a contributing member who is entitled to make an election under subsection (1) does not make that election, he is entitled to a refund, payable by the Commonwealth, of so much of the contributions paid by him under section 17 as is equal to the difference between the amount of the contributions payable by him under that section before the change referred to in subsection (1) and the amount of the contributions that would have been so payable by him if the amount of each fortnightly contribution so payable by him had not exceeded the amount that is the amount of each fortnightly contribution payable by him after the change, and the amount of any contributions in respect of which he becomes so entitled to a refund shall, for the purposes of this Act, be deemed not to have been paid by him.

21 Purchase of previous non‑contributory service

(1) Subject to this section, where, after 30 September 1972, an eligible member of the Defence Force has, before becoming an eligible member of the Defence Force:

(a) served as a member of the Defence Force on continuous full‑time service for a period of not less than one year, being a period during which he was not an eligible member of the Defence Force; or

(b) served as a member of the Defence Force on continuous full‑time service for a period of less than one year, being a period during which he was not an eligible member of the Defence Force but which is continuous with a subsequent period during which he is such a member;

he may, by notice in writing given to the Authority within a period of 90 days after the date on which he became an eligible member of the Defence Force, or within such further period as the Authority, in special circumstances allows, elect to have the period during which he served as a member of the Defence Force but during which he was not an eligible member of the Defence Force, or such part of that period as he specifies in the election, taken into account as a period of effective service in relation to him under this Act.

(2) An eligible member of the Defence Force is not entitled to make an election under subsection (1) in respect of any period which, if he had been a contributing member during the period, would have been a period of non‑effective service in relation to him.

(3) Where, under subsection (1), an eligible member of the Defence Force has elected to have a period of service taken into account as a period of effective service in relation to him under this Act, that period shall be deemed to be a period of effective service in relation to him for the purposes of this Act and he shall pay an additional contribution to the Commonwealth under this section, which shall be:

(a) if that period is continuous with a period of subsequent service during which he was an eligible member of the Defence Force—an amount equal to the sum of the contributions that he would have been liable to pay during that period if he had been a contributing member during that period; and

(b) in any other case—an amount equal to 5.5% of the amount of pay that would have been payable to him in respect of the period to which the election relates if, at all times during that period, his rate of pay had been the annual rate of pay applicable to him under this Act at the time he became an eligible member of the Defence Force.

(4) An election under subsection (1) is of no effect unless, at the time when the election is made, or, within such period after that time as the Authority, in special circumstances, allows, there is refunded to the Commonwealth, or arrangements satisfactory to the Authority are made for there to be refunded to the Commonwealth, any payment of a prescribed kind (being a payment of, or in the nature of, a gratuity or bounty or deferred pay) paid to the person under the previous legislation, or under legislation relating to conditions of service of members of the Defence Force, in respect of the period to which the election relates.

(5) Where a person who makes an election under this section had credited to him, in respect of the period to which the election relates, under the previous legislation or under legislation relating to the conditions of service of members of the Defence Force, any deferred pay or interest thereon, that credit shall, by force of this section, be deemed to have been cancelled.

22 Deductions of contributions from pay

Contributions payable under this Part by a member of the scheme may be deducted from his pay.





Part IV—Retirement benefits

23 Entitlement to retirement pay

(1) Where a contributing member retires and is not entitled to invalidity benefit and:

(a) on his retirement:

(i) his total period of effective service is not less than 20 years; or

(ii) his total period of effective service is not less than 15 years and he has attained the retiring age for the rank held by him immediately before his retirement; or

(b) he had previously become entitled to retirement pay under this Act or pension, other than invalidity benefit, under the previous legislation that was cancelled under section 62 upon his becoming an eligible member of the Defence Force;

he is entitled, on his retirement, to retirement pay at the rate applicable to him in accordance with this section.

(2) Subject to subsections (3) and (6) and to sections 25 and 75, the rate at which retirement pay is payable to a recipient member is an amount per annum that is equal to such percentage of the annual rate of pay applicable to him immediately before his retirement as, having regard to the number of complete years included in his total period of effective service, is ascertained under Schedule 1.

(3) Where:

(a) the total period of effective service of a member of the scheme who is an officer is not less than 20 years; and

(b) he is retired at his own request, or on disciplinary grounds, before attaining the age that, having regard to his rank immediately before his retirement, is his notional retiring age as ascertained under Schedule 2;

the rate at which retirement pay is payable to him is the amount per annum that, but for this subsection, would be payable under subsection (2) reduced by 3% of that amount for each year included in the period equal to the difference between the age of the officer on his birthday last preceding his retirement and his notional retiring age as ascertained under Schedule 2.

(4) For the purposes of subsection (3), an officer shall be deemed to have been retired at his own request or to have been retired on disciplinary grounds if the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, states in writing that he was so retired.

(5) Notwithstanding anything in subsection (2) or (3) but subject to subsection (6), the rate at which retirement pay is payable to a recipient member who is entitled to retirement pay by virtue only of paragraph (1)(b) shall not be less than the rate at which the cancelled retirement pay or the cancelled pension was payable to him immediately before he became an eligible member of the Defence Force.

(6) If the member of the scheme makes an election under subsection 124(1), the rate at which retirement pay is payable to the member is the rate worked out by using the formula:

where:

basic rate means the annual rate at which retirement pay would be payable to the member under this section if the member did not make the election.

conversion factor is the factor that is applicable to the member under the determination made by the Authority under section 124A.

surcharge deduction amount means the member’s surcharge deduction amount.

24 Commutation of retirement pay

(1) A person who is, or is about to become, entitled to retirement pay may, by notice in writing given to the Authority, elect to commute a portion of his or her retirement pay in accordance with this section.

(1AA) A notice under subsection (1) shall be given not earlier than

3 months before becoming entitled to retirement pay and not later than one year after becoming so entitled or such further period as the Authority, in special circumstances, allows.

(1A) Subsection (1) does not apply to a person who, after the commencement of this subsection, became a person to whom subsection 62(1) or (2) applied and is not excluded, under subsection (1B), from the operation of this subsection.

(1B) A person who, after the commencement of this subsection, becomes, or is about to become, entitled to retirement pay is excluded from the operation of subsection (1A) if:

(a) the person was a former recipient member whose invalidity pay was cancelled under subsection 62(1) on the person again becoming an eligible member of the Defence Force; and

(b) the person reached, or will reach, immediately before retirement, the retiring age for the rank then held by him or her or the person’s total period of effective service is not, or will not be, less than 20 years.

(2) An election by a person under subsection (1) shall specify the amount that is to be payable to him by virtue of the commutation.

(2A) The amount specified in an election by a person under subsection (1) shall not be an amount that, together with:

(a) any amount or amounts specified in any previous election or elections by the person, under this section or section 32A of this Act, to commute a portion or portions of his retirement pay or invalidity pay, as the case may be, reduced by any amount or amounts required under paragraph 62(4)(a) of this Act, to be paid by the person to the Commonwealth in respect of that commutation or those commutations; and

(b) any amount paid to the person in pursuance of an application, under section 74 of the previous Act, to commute a portion of any pension payable to him under that Act reduced by:

(i) any amount or amounts required, under paragraph 62(4)(a) of this Act, to be paid by the person to the Commonwealth; and

(ii) any amount or amounts required, under subsection 69(1B) or 69(3A) of the previous Act, to be paid by the person to the Defence Forces Retirement Benefits Fund established under the previous Act;

in respect of that commutation;

exceeds the amount per annum of the retirement pay to which the person was or will be entitled on retirement multiplied by the maximum commutation factor.

(2B) For the purposes of subsection (2A), the maximum commutation factor is the number calculated in accordance with the formula:

where A is:

(a) if the number (treating zero as a number) of whole periods of 12 months between 30 June 1982 and the date of retirement of the recipient member is less than 20—that number of periods; or

(b) in any other case—20.

(3) Where a person makes an election under this section, then, subject to subsections (8) and (9):

(a) there shall be paid to him by the Commonwealth an amount equal to the amount specified in the election as the amount that is to be payable to him by virtue of the commutation; and

(b) the amount per annum of the retirement pay payable to him, on and after the day on which the election takes effect, is the amount per annum that, but for this paragraph and subsection 98K(1), would be payable reduced by an amount calculated by dividing the amount referred to in paragraph (a) by the expectation of life factor that, having regard to the age and sex of the person on the day on which the election takes effect, is applicable to him under Schedule 3.

(4) For the purposes of this section, an election shall be deemed to have been made, and shall take effect, on the day on which the notice of election is received by the Authority or the day following the day on which the person retires, whichever is the later.

(5) Where:

(a) a person becomes entitled to retirement pay under subsection 23(1); and

(b) the person had on a previous occasion become entitled to retirement pay under that section; and

(c) on that occasion the person had made an election under subsection (1) of this section (in this section called the previous election) to commute a portion of his or her retirement pay; and

(d) the person’s retirement pay was subsequently cancelled under subsection 62(1) on his or her again becoming an eligible member of the Defence Force;

then, subject to subsection (7), subsection (3) applies to the person as if:

(e) the person:

(i) were entitled to make an election under subsection (1) to commute a portion of his or her retirement pay; and

(ii) has made the election on the day immediately following the day on which the person retired; and

(f) the election specified the amount prescribed by subsection (6) as the amount that is to be payable to the person because of the commutation.

(6) For the purposes of paragraph (5)(f), the prescribed amount is:

(a) if the previous election made by the person had specified the maximum amount (in this subsection called the previous maximum amount) that could have been specified in that election in accordance with subsection (2A)—an amount equal to the maximum amount (in this subsection called the putative maximum amount) that the person could (under subsection (2A)) specify in an election made under subsection (1) if the person were entitled to make the election on his or her becoming entitled to the retirement pay; or

(b) if the previous election made by the person had specified a lesser amount than the previous maximum amount—an amount calculated by using the formula:

(7) Where, because of subsection (5), subsection (3) applies to a person (in this subsection called the recipient member), there must be deducted from the amount that, apart from this subsection, would be payable to the recipient member under paragraph (3)(a) an amount equal to the sum of:

(a) the amount that was paid to the recipient member under that paragraph as a result of the previous election made by him or her; and

(b) any increase in that amount that the recipient member would have received if, on each occasion after the payment of the amount on which a person to whom a pension benefit was payable was entitled under section 98B to an increase in the rate of that pension benefit, the recipient member had been entitled to an increase in that amount calculated under that section in the same way as the increase in the rate of pension benefit was calculated.

(8) If:

(a) a member of the scheme makes an election under this section (first election); and

(b) the member’s surcharge debt account is in debit when retirement pay becomes payable to the member; and

(c) the member also makes an election under subsection 124(1);

the following provisions apply:

(d) the Commonwealth must pay to the member the difference between the amount (specified amount) specified in the first election as the amount that is to be payable to the member by virtue of the commutation and:

(i) the member’s surcharge deduction amount; or

(ii) if the member’s surcharge deduction amount exceeds the specified amount—so much of the surcharge deduction amount as does not exceed the specified amount;

(e) the amount per annum of the retirement pay payable to the member, on and after the day on which the first election takes effect, is:

(i) if subparagraph (ii) does not apply—the amount per annum referred to in paragraph (3)(b); or

(ii) if the member’s surcharge deduction amount exceeds the specified amount—the amount per annum worked out by using the formula:

where:

basic rate means the amount per annum referred to in paragraph (3)(b).

conversion factor is the factor that is applicable to the member under the determination made by the Authority under section 124A.

excess means the amount by which the member’s surcharge deduction amount exceeds the specified amount.

(9) If:

(a) a member of the scheme makes an election under this section; and

(b) the member’s surcharge debt account is in debit when retirement pay becomes payable to the member; and

(c) the member does not make an election under subsection 124(1); and

(d) the member’s surcharge deduction amount exceeds the amount of the member’s productivity superannuation benefit;

the following provisions apply:

(e) the Commonwealth must pay to the member an amount equal to the amount specified in the election as the amount that is to be payable to the member by virtue of the commutation;

(f) the amount per annum of the retirement pay payable to the member, on and after the day on which the election takes effect, is the amount per annum worked out by using the formula:

where:

basic rate means the amount per annum referred to in paragraph (3)(b).

conversion factor is the factor that is applicable to the member under the determination made by the Authority sunder section 124A.

excess means the amount by which the member’s surcharge deduction amount exceeds the amount of the member’s productivity superannuation benefit.

25 Rate of retirement pay applicable to certain existing contributors

(1) In this section:

new pension percentage of pay, in relation to a person to whom this section applies, means the annual rate of his retirement pay (expressed as a percentage of the rate that was his annual rate of pay for the purposes of this Act immediately before his retirement) that is, or, but for an election under this section, would be, payable to him under this Act on his retirement.

previous pension percentage of pay, in relation to a person to whom this section applies, means the annual rate of pension (expressed as a percentage of the rate that was his annual rate of pay, for the purposes of the previous Act, on 30 September 1972) that would have been payable to him under the previous legislation if he had retired on 30 September 1972, otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties, and:

(a) being an existing contributor referred to in subparagraph (2)(d)(i):

(i) in the case of a person who was, on 30 September 1972, an officer of the Permanent Forces—he had, on that date, attained the retiring age for the rank held by him on that date; or

(ii) in the case of a person who was, on that date, a non‑Permanent Forces officer as defined in section 54A of the previous Act—he had, on that date:

(A) retired with the rank held by him on that date; and

(B) reached the age that was his age on the date of his retirement;

and had, on 30 September 1972, completed a number of years of service for pension equal to the number of years of service for pension completed by him on his retirement; or

(b) being a person referred to in subparagraph (2)(d)(ii)—he had, on 30 September 1972, reached the age that was his age on the date of his retirement.

retiring age for the rank held has the same meaning as it would have in the definition of retiring age for the rank held in subsection 4(1) of the previous Act if the reference in that definition to the date of a member’s retirement were a reference to 30 September 1972.

service for pension means service for pension as defined by subsection 4(1) of the previous Act.

(2) This section applies to a person who:

(a) is an existing contributor;

(b) retires and, on his retirement, is entitled to retirement pay;

(c) was, on 30 September 1972 and, immediately before his retirement, an officer; and

(d) is a person:

(i) who, on his retirement, had attained the retiring age for the rank held by him on 30 September 1972 and had completed not less than 15 years’ service for pension; or

(ii) who, on his retirement, had not attained the retiring age for the rank held by him on 30 September 1972 but in respect of whom the Authority is satisfied that, but for the enactment of this Act and the Defence Forces Retirement Benefits Act 1973, paragraph 39(2)(b) or (c) of the previous Act would, on his retirement, have applied.

(2AA) For the purposes of subparagraph (2)(d)(ii):

(a) a reference in subparagraph 39(2)(b)(ii) or (2)(c)(ii) of the previous Act to the rank held by an officer shall be read as a reference to the rank held by the officer on

30 September 1972;

(b) the reference in subparagraph 39(2)(c)(i) of the previous Act to the rank of an officer at the date of his retirement shall be read as a reference to the rank of the officer on

30 September 1972; and

(c) a reference in subparagraph 39(2)(b)(ii) or (2)(c)(ii) of the previous Act to the retiring age for the rank held shall be read as a reference to the retiring age for the rank held within the meaning of this section.

(2A) Where a person to whom this section applies has made an election under section 44 of the Defence Forces Retirement Benefits Act 1959, section 28 of the Defence Forces Retirement Benefits Act 1962 or section 38, 61A or 61B of the Defence Forces Retirement Benefits Act 1963, this section has effect as if the previous pension percentage of pay in relation to that person were a percentage that would have been the previous pension percentage of pay in relation to him if he had not made that election and had paid all the contributions which he would, but for that election, have been required to pay under the previous legislation.

(3) Where the previous pension percentage of pay applicable to a person to whom this section applies is greater than the new pension percentage of pay applicable to him, he may, by notice in writing given to the Authority within a period of 90 days after the date of his retirement, or within such further period as the Authority, in special circumstances, allows, elect that the rate at which retirement pay shall be payable to him shall be an amount per annum that is such percentage of his annual rate of pay for the purposes of this Act immediately before his retirement as is the same as the previous pension percentage of pay applicable to him, and, subject to subsection (4), the election has effect accordingly.

(4) Where the Authority so determines, an election under subsection (3) is of no effect unless the person making the election pays to the Commonwealth a contribution under this section of such amount as the Authority determines as being appropriate in the circumstances or arrangements satisfactory to the Authority are made for the payment of that contribution to the Commonwealth.

(5) In the application of this section to a person who was, on 30 September 1972, a non‑Permanent Forces officer as defined by section 54A of the previous Act, the retiring age for the rank held shall be the age that would be deemed, for the purposes referred to in subsection 54A(2) of that Act, to be the retiring age for the rank held by the person on his retirement if he had retired on 30 September 1972.





Part V—Invalidity benefits

26 Invalidity benefit

Subject to sections 27, 28 and 29, where a contributing member is retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he is entitled, on his retirement, to invalidity benefit in accordance with this Part.

27 Incapacity due to wilful action

Where:

(a) a contributing member is retired on the ground of invalidity or of physical or mental incapacity to perform his duties; and

(b) the invalidity or incapacity is, in the opinion of the Authority, due to wilful action on his part for the purpose of obtaining invalidity benefit;

he is not entitled to invalidity benefit.

28 Pre‑existing invalidity or incapacity

(1) Subject to section 95, where:

(a) a contributing member (not being a contributing member who has become an eligible member of the Defence Force by virtue of an election under section 90) is, within a period of one year after becoming a contributing member, retired on the ground of invalidity or of physical or mental incapacity to perform his duties; and

(b) the Authority is satisfied that:

(i) the invalidity or incapacity was caused, or was substantially contributed to, by a physical or mental condition that existed at the time when he became a contributing member; and

(ii) the condition was not aggravated, or was not materially aggravated, by his service after becoming a contributing member;

he is not entitled to invalidity benefit.

(2) Where:

(a) a member of the scheme who has retired again becomes an eligible member of the Defence Force otherwise than without a break in the continuity of his service;

(b) he is not a person who, on again becoming an eligible member of the Defence Force, was entitled to, and made, an election under section 51; and

(c) after again becoming an eligible member of the Defence Force, he is retired on the ground of invalidity or of physical or mental incapacity to perform his duties;

he shall, for the purposes of subsection (1), be treated as if he had first become a contributing member at the time when he again became an eligible member of the Defence Force.

29 Invalidity or incapacity arising during absence without leave exceeding 60 days

Where:

(a) a contributing member has been retired on the ground of invalidity or of physical or mental incapacity to perform his duties;

(b) the Authority is satisfied that the invalidity or incapacity was caused, or was substantially contributed to, by an occurrence that happened at a time when he was absent without leave and had been so absent for a period exceeding 60 consecutive days;

(c) in a case where the period when the contributing member was absent without leave commenced on or after 3 July 1985 or commenced before that day and ended on or after that day—both of the following subparagraphs apply:

(i) the salary and allowances of the member in respect of the period were forfeited under regulations made under the Defence Act 1903;

(ii) 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;

he is not entitled to invalidity benefit.

30 Classification in respect of incapacity

(1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:

Percentage of incapacity Class 60% or more A 30% or more but less than 60% B Less than 30% C

(1A) Where:

(a) a member of the scheme (other than a member to whom section 36 applies) who is entitled to invalidity benefit dies; and

(b) at the time of his or her death, the Authority has not made a determination in respect of the member under subsection (1);

the Authority must:

(c) determine what was, immediately before the member’s death, his or her percentage of incapacity in relation to civil employment; and

(d) classify the member under subsection (1) according to that percentage of incapacity, as if the member had not died.

(1B) Where a deceased member of the scheme is classified under this section, the classification is taken to have had effect at all times on and after his or her retirement.

(2) In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the member;

(b) the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

(c) the degree to which the physical or mental impairment of the member that caused the invalidity or physical or mental incapacity because of which he or she was retired has or had diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);

(d) such other matters (if any) as are prescribed for the purposes of this subsection.

(3) Where the invalidity pay of a person is cancelled under subsection 62(1), any classification of the person under subsection (1) ceases to have effect.

31 Class A and Class B invalidity pay

(1) A member of the scheme who is entitled to invalidity benefit and is classified as Class A or Class B under section 30 (whether on his retirement or by reason of his having been reclassified under subsection 34(1)) is entitled to invalidity pay at the rate applicable to him in accordance with this section.

(2) Subject to subsections (3) and (4), the rate at which invalidity pay is payable to a member of the scheme under this section is such amount per annum as is equal to, in the case of a recipient member classified as Class A under section 30, 76.5%, and, in the case of a recipient member classified as Class B, 38.25%, of the annual rate of pay applicable to him immediately before his retirement.

(3) Subject to section 33, where but for this subsection, the rate of invalidity pay payable to a member of the scheme under subsection (2) at any time would be less than the rate at which retirement pay would have been payable to him at that time if, at the time when he was retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he had retired on other grounds, the rate of invalidity pay payable to him at that first‑mentioned time is the rate at which retirement pay would have been so payable at that time.

(4) If the member of the scheme makes an election under subsection 124(1), the rate at which invalidity pay is payable to the member is the rate worked out by using the formula:

where:

basic rate means the annual rate at which invalidity pay would be payable to the member under this section if the member did not make the election.

conversion factor is the factor that is applicable to the member under the determination made by the Authority under section 124A.

surcharge deduction amount means the member’s surcharge deduction amount.

32 Class C invalidity benefit

(1) Subject to section 33, where a member of the scheme who is entitled to invalidity benefit and is classified as Class C under section 30 (whether on his retirement or by reason of his having been reclassified under subsection 34(1)) would, if at the time when he was retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he had retired on other grounds, have been entitled to retirement pay, the member is entitled:

(a) if the member does not make an election under subsection 124(1)—to invalidity pay at the rate at which retirement pay would have been payable to the member if the member had not made an election under subsection 124(1) in respect of the retirement pay; or

(b) if the member makes an election under subsection 124(1)—to invalidity pay at the rate at which retirement pay would have been payable to the member if the member had made an election under subsection 124(1) in respect of the retirement pay.

(2) Where subsection (1) does not apply to a member of the scheme who is entitled to invalidity benefit and is classified as Class C under section 30 (whether on his retirement or by reason of his having been reclassified under subsection 34(1)), the member is entitled to a lump sum payment of an amount worked out under subsection (3).

(3) The amount of the lump sum payment referred to in subsection (2) is:

(a) if paragraph (b) does not apply—a lump sum payment equal to 1.5 times the amount of the member’s contributions; or

(b) if the member makes an election under subsection 124(1)—a lump sum payment equal to the difference between:

(i) the lump sum payment referred to in paragraph (a); and

(ii) the member’s surcharge deduction amount.

32A Commutation of Class C invalidity pay

(1) This section applies to a member of the scheme who:

(a) is, or is to be, retired after the commencement of this section; and

(b) on retirement, is, or is likely to be, classified as Class C under section 30 and entitled to invalidity pay.

(1A) Subsection (1) does not apply to a member of the scheme who, after the commencement of this subsection, became a person to whom subsection 62(1) or (2) applied.

(2) A member of the scheme to whom this section applies may, by notice in writing given to the Authority, elect to commute a portion of his or her invalidity pay in accordance with this section.

(2A) A notice under subsection (2) shall be given not earlier than 3 months before becoming entitled to invalidity pay and not later than one year after becoming so entitled or such further period as the Authority, in special circumstances, allows.

(3) An election under subsection (2) by a member of the scheme to whom this section applies shall specify the amount that is to be payable to him by virtue of the commutation.

(4) The amount specified in an election under subsection (2) by a member of the scheme to whom this section applies shall not be an amount that, together with:

(a) any amount or amounts specified in any previous election or elections by the member, under this section or section 24 of this Act, to commute a portion or portions of his invalidity pay or retirement pay, as the case may be, reduced by any amount or amounts required under paragraph 62(4)(a) of this Act, to be paid by the member to the Commonwealth in respect of that commutation or those commutations; and

(b) any amount paid to the member in pursuance of an application, under section 74 of the previous Act, to commute a portion of any pension payable to him under that Act reduced by:

(i) any amount or amounts required, under

paragraph 62(4)(a) of this Act, to be paid by the member to the Commonwealth; and

(ii) any amount or amounts required, under

subsection 69(1B) or 69(3A) of the previous Act, to be paid by the member to the Defence Forces Retirement Benefits Fund established under the previous Act;

in respect of that commutation;

exceeds the amount per annum of the invalidity pay to which the member of the scheme was or will be entitled on retirement multiplied by the maximum commutation factor.

(4A) For the purposes of subsection (4), the maximum commutation factor is the number calculated in accordance with the formula:

where A is:

(a) if the number (treating zero as a number) of whole periods of 12 months between 30 June 1982 and the date of retirement of the member of the scheme is less than 20—that number of periods; or

(b) in any other case—20.

(5) Where a member of the scheme to whom this section applies makes an election under this section, then, subject to subsections (7) and (8):

(a) there shall be paid to him by the Commonwealth an amount equal to the amount specified in the election as the amount that is to be payable to him by virtue of the commutation; and

(b) the amount per annum of the invalidity pay payable to him, on and after the day on which the election takes effect, is the amount per annum that, but for this paragraph and subsection 98K(1), would be payable reduced by an amount calculated by dividing the amount referred to in paragraph (a) by the expectation of life factor that, having regard to the age and sex of the person on the day on which the election takes effect, is applicable to him under Schedule 3.

(5A) If a member of the scheme:

(a) makes an election under this section before becoming entitled to invalidity pay; and

(b) is subsequently classified otherwise than as Class C under section 30;

the election has no effect.

(6) For the purposes of this section, an election shall be deemed to have been made, and shall take effect, on the day on which the notice of election is received by the Authority or the day following the day on which the member of the scheme retires, whichever is the later.

(7) If:

(a) a member of the scheme makes an election under this section (first election); and

(b) the member’s surcharge debt account is in debit when invalidity pay becomes payable to the member; and

(c) the member also makes an election under subsection 124(1);

the following provisions apply:

(d) the Commonwealth must pay to the member the difference between the amount (specified amount) specified in the first election as the amount that is to be payable to the member by virtue of the commutation and:

(i) the member’s surcharge deduction amount; or

(ii) if the member’s surcharge deduction amount exceeds the specified amount—so much of the surcharge deduction amount as does not exceed the specified amount;

(e) the amount per annum of the invalidity pay payable to the member, on and after the day on which the first election takes effect, is:

(i) if subparagraph (ii) does not apply—the amount per annum referred to in paragraph (5)(b); or

(ii) if the member’s surcharge deduction amount exceeds the specified amount—the amount per annum worked out by using the formula:

where:

basic rate means the amount per annum referred to in paragraph (5)(b).

conversion factor is the factor that is applicable to the member under the determination made by the Authority under section 124A.

excess means the amount by which the member’s surcharge deduction amount exceeds the specified amount.

(8) If:

(a) a member of the scheme makes an election under this section; and

(b) the member’s surcharge debt account is in debit when invalidity pay becomes payable to the member; and

(c) the member does not make an election under subsection 124(1); and

(d) the member’s surcharge deduction amount exceeds the amount of the member’s productivity superannuation benefit;

the following provisions apply:

(e) the Commonwealth must pay to the member an amount equal to the amount specified in the election as the amount that is to be payable to the member by virtue of the commutation;

(f) the amount per annum of the invalidity pay payable to the member, on and after the day on which the election takes effect, is the amount per annum worked out by using the formula:

where:

basic rate means the amount per annum referred to in paragraph (5)(b).

conversion factor is the factor that is applicable to the member under the determination made by the Authority under section 124A.

excess means the amount by which the member’s surcharge deduction amount exceeds the amount of the member’s productivity superannuation benefit.

33 Rate of invalidity pay applicable to certain existing contributors

(1) In this section:

new pension percentage of pay:

(a) in relation to a person to whom this section applies who, on his retirement, is classified as Class B or Class C under section 30—means the annual rate of his invalidity pay (expressed as a percentage of the rate that was his annual rate of pay, for the purposes of this Act, immediately before his retirement) that is, or, but for an election under this section, would be, payable to him under this Act on his retirement; or

(b) in relation to a person to whom this section applies who, on his retirement, is classified as Class A under section 30 but is subsequently reclassified as Class B—means the rate that would have been the annual rate of his invalidity pay (expressed as a percentage of the rate that was his annual rate of pay, for the purposes of this Act, immediately before his retirement) that would have been payable to him under this Act on his retirement if he had been classified as Class B on his retirement.

previous pension percentage of pay, in relation to a person to whom this section applies, means the annual rate of pension (expressed as a percentage of the rate that was his annual rate of pay, for the purpose of the previous Act, on 30 September 1972) that would have been payable to him under the previous legislation if he had retired on 30 September 1972, otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties, and:

(a) in the case of a person who was, on 30 September 1972, an officer of the Permanent Forces—he had, on that date, attained the retiring age for the rank held by him on that date; or

(b) in the case of a person who was, on that date, a non‑Permanent Forces officer as defined in section 54A of the previous Act—he had, on that date:

(i) retired with the rank held by him on that date; and

(ii) reached the age that was his age on the date of his retirement;

and had, on 30 September 1972, completed a number of years of service for pension equal to the number of years of service for pension completed by him on his retirement.

retiring age for the rank held has the same meaning as it would have in the definition of retiring age for the rank held in subsection 4(1) of the previous Act if the reference in that definition to the date of a member’s retirement were a reference to 30 September 1972.

service for pension means service for pension as defined by subsection 4(1) of the previous Act.

(2) This section applies to a person who:

(a) is an existing contributor;

(b) is retired and:

(i) on his retirement, is classified as Class B or Class C under section 30 and is entitled to invalidity pay; or

(ii) on his retirement, is classified as Class A but is subsequently reclassified as Class B;

(c) was, on 30 September 1972, and, immediately before his retirement, an officer; and

(d) on his retirement, had attained the retiring age for the rank held by him on 30 September 1972 and had completed not less than 15 years’ service for pension.

(2A) Where a person to whom this section applies has made an election under section 44 of the Defence Forces Retirement Benefits Act 1959, section 28 of the Defence Forces Retirement Benefits Act 1962 or section 38, 61A or 61B of the Defence Forces Retirement Benefits Act 1963, this section has effect as if the previous pension percentage of pay in relation to the person were a percentage that would have been the previous pension percentage of pay in relation to him if he had not made the election and had paid all the contributions which he would, but for that election, have been required to pay under the previous legislation.

(3) Where the previous pension percentage of pay applicable to a person to whom this section applies, being a person who on his retirement, is classified as Class B or Class C under section 30, is greater than the new pension percentage of pay applicable to him, he may, by notice in writing given to the Authority within a period of 90 days after the date of his retirement, or within such further period as the Authority, in special circumstances, allows, elect that the rate at which invalidity pay shall be payable to him shall be an amount per annum that is such percentage of his annual rate of pay for the purposes of this Act immediately before his retirement as is the same as the previous pension percentage of pay applicable to him, and, subject to subsection (5), the election has effect accordingly.

(4) Where the previous pension percentage of pay applicable to a person to whom this section applies, being a person who, on his retirement is classified as Class A under section 30 but is subsequently reclassified as Class B, is greater than the new pension percentage of pay applicable to him, he may, by notice in writing given to the Authority within a period of 90 days after the date from which the re‑classification has effect, or within such further period as the Authority, in special circumstances, allows, elect that the rate at which invalidity pay shall be payable to him shall be an amount per annum that is such percentage of his annual rate of pay for the purposes of this Act immediately before his retirement as is the same as the previous pension percentage of pay applicable to him, and, subject to subsection (5), the election has effect accordingly.

(5) Where the Authority so determines, an election under subsection (3) or (4) is of no effect unless the person making the election pays to the Commonwealth a contribution under this section of such amount as the Authority determines as being appropriate in the circumstances or arrangements satisfactory to the Authority are made for the payment of that contribution to the Commonwealth.

(6) In the application of this section to a person who was, on 30 September 1972, a non‑Permanent Forces officer as defined by section 54A of the previous Act, the retiring age for the rank held shall be the age that would be deemed, for the purposes referred to in subsection 54A(2) of that Act, to be the retiring age for the rank held by the person on his retirement if he had retired on 30 September 1972.

34 Reclassification in respect of incapacity

(1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.

(1AA) If, at a time when the Authority is reviewing, but has not yet determined, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a recipient member, the recipient member dies:

(a) the Authority must determine what was, immediately before the member’s death, his or her percentage of incapacity in relation to civil employment; and

(b) where the Authority is satisfied, having regard to that percentage of incapacity, that, if the member had not died, the member would be reclassified and given a classification higher than that of the member at the time of his or her death, the Authority must reclassify the member under subsection (1) according to that percentage of incapacity, as if the member had not died.

(1A) In determining:

(aa) what is the percentage of incapacity in relation to civil employment of a recipient member; or

(aab) what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a recipient member who has died;

the Authority shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the recipient member;

(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

(c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);

(d) such other matters (if any) as are prescribed for the purposes of this subsection.

(1B) In subsection (1A), prescribed physical or mental impairment, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:

(a) a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or

(b) any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).

(2) Where a recipient member is reclassified under this section, the Authority shall specify the date from which the reclassification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly.

(2A) Where a deceased member is reclassified under this section:

(a) the Authority must specify the day from which the reclassification has effect; and

(b) the member is taken, for the purposes of this Part, to have been classified under section 30 accordingly on and after that day.

(3) Where the Authority reclassifies a recipient member (other than a member to whom section 37 applies) under this section, the date specified by the Authority as the date from which the reclassification has effect shall not be a date earlier than the date on which the Authority reclassifies the member unless:

(a) the member is reclassified as Class A or, having been classified as Class C, is reclassified as Class B; and

(b) the Authority is satisfied that special circumstances exist that justify an earlier date being so specified.

(4) If, upon the reclassification of a recipient member as Class C, he would, but for this subsection, be entitled to benefit in accordance with subsection 32(2), he is entitled to that benefit only to the extent that the amount of that benefit exceeds the sum of the payments of invalidity pay received by him.

(5) In this section, recipient member means a member of the scheme who is entitled to invalidity pay and includes a member of the scheme who:

(a) is classified as Class C by reason of having been reclassified (whether before or after the commencement of this subsection) under subsection (1); and

(b) is not, after being so reclassified, entitled to invalidity pay;

but does not include a member of the scheme who is retired after the commencement of this subsection and, on his retirement, is classified as Class C under section 30.

35 Power of Authority to require persons to be medically examined etc.

(1) The Authority may, by notice in writing given to a recipient member in receipt of invalidity pay require him:

(a) to submit himself for medical examination by a legally qualified medical practitioner at a time and place specified in the notice; or

(b) to furnish in writing to the Authority, within such period as is specified in the notice, such information as is required by the notice with respect to any employment (whether as an employee or on his own account) in which he has been engaged during such period as is specified in the notice.

(2) A notice under subsection (1) shall set out the effect of subsection (3).

(3) Where a recipient member fails to comply with a notice given under subsection (1) and the Authority is not satisfied that there was a reasonable excuse for the failure, the Authority may, by notice in writing given to the member, suspend the member’s invalidity pay with effect from such day as the Authority determines, being a day not earlier than:

(a) in a case where the first‑mentioned notice required the member to submit to a medical examination on a day specified in the notice—the day next following that day; or

(b) in a case where the first‑mentioned notice required the member to furnish information within a period specified in the notice—the day next following the end of that period.

(4) A notice to a person under subsection (3) shall set out the effect of subsections (5B), (5D) and (5E).

(5) Invalidity pay is not payable in respect of a period during which a suspension under subsection (3) is in force.

(5A) Where:

(a) the invalidity pay of a recipient member is suspended under subsection (3); and

(b) the Authority, having regard to such matters as it considers relevant, is of the opinion that the suspension should be revoked;

the Authority may, by notice in writing given to the member or to the member and a person acting on the member’s behalf, as the case may be, revoke the suspension with effect from such day as the Authority determines, being a day not later than the day on which the notice is given.

(5B) Without limiting subsection (5A), where the invalidity pay of a recipient member is suspended under subsection (3), the member, or another person acting on the member’s behalf, may, by notice in writing given to the Authority, request the Authority to revoke the suspension, and where such a request is made, the Authority shall, by notice in writing given to the member or to the member and the other person, as the case may be:

(a) if the invalidity pay has been suspended by virtue of the relevant member’s having failed to comply with a notice requiring the member to submit to a medical examination—require the member to submit to a medical examination by a medical practitioner at a time and place specified in the second‑mentioned notice; or

(b) if the invalidity pay has been suspended by virtue of the member’s having failed to comply with a notice requiring the member to give information to the Authority (in this paragraph called the original notice)—require the member to give in writing to the Authority, within such period as is specified in the second‑mentioned notice, such information as was required by the original notice to be given.

(5C) A notice given by the Authority under subsection (5B) shall set out the effects of subsections (5D) and (5E).

(5D) Where:

(a) because of a request having been made to revoke the suspension of the invalidity pay of a recipient member, a notice under subsection (5B) is given to the member or to the member and another person; and

(b) either:

(i) the member complies with the notice; or

(ii) the member fails to comply with the notice but the Authority is satisfied that there was a reasonable excuse for the failure;

the Authority shall, by notice in writing given to the member or to the member and the other person, as the case may be, revoke the suspension with effect from such day as the Authority determines, being a day not later than:

(c) in a case to which subparagraph (b)(i) applies—the day on which the member so complied with the notice; or

(d) in a case to which subparagraph (b)(ii) applies—the day on which the Authority became so satisfied.

(5E) Where:

(a) because of a request having been made to revoke the suspension of the invalidity pay of a recipient member, a notice under subsection (5B) is given to the member or to the member and another person; and

(b) the member fails to comply with the notice and the Authority is not satisfied that there was a reasonable excuse for the failure;

the Authority shall, by notice in writing given to the member or to the member and the other person, as the case may be, refuse to revoke the suspension.

(6) Where a person whose invalidity pay has been suspended under this section dies before the invalidity pay again becomes payable, he shall, for the purposes of sections 39, 42, 43 and 47, be deemed to have been entitled to invalidity pay immediately before his death and, for the purposes of sections 39, 42 and 43, the invalidity pay shall be deemed to have been payable at the rate at which it would have been payable to him if it had not been suspended.

(6A) Where the Authority is required by this section to give a recipient member a notice, the notice shall be taken to have been given to the member if:

(a) the notice is served on the member personally;

(b) the notice is sent to the member by pre‑paid post as a letter and the member acknowledges receipt of the letter; or

(c) where the Authority has caused all reasonable steps to be taken to ascertain a reliable address of the member, the notice is sent to the member by pre‑paid post to:

(i) in a case where the Authority is satisfied that at least one reliable address of the member has been ascertained—that address or one of those addresses; or

(ii) in any other case—the last address of the member known to the Authority.

(6B) A reference in subsection (6A) to a reliable address of a member shall be read as a reference to an address where, if a letter were sent to the member by pre‑paid post to the address, the member would probably receive the letter.

(7) This section does not apply in relation to a member of the scheme who:

(a) is retired after the commencement of this subsection; and

(b) on his retirement, is classified as Class C under section 30 and is entitled to invalidity pay.

36 Invalidity benefits payable to certain contributors under Superannuation Act or the Superannuation Act 1990

(1) This section applies to a member of the scheme:

(a) who becomes entitled to invalidity benefit; and

(b) who, at the time he becomes so entitled:

(i) is an eligible employee for the purposes of the Superannuation Act whose liability to make contributions to the Commissioner for Superannuation is deferred by virtue of section 54 of the Superannuation Act; or

(ii) is a person whose entitlement to pension under that Act is suspended by force of subsection 117(1) of that Act; or

(iii) is a member of the Superannuation (1990) Scheme whose liability to make contributions under that scheme has been deferred under Rule 3.1.17 of the Rules for the administration of the Superannuation (1990) Scheme.

(2) The invalidity benefit to which a member of the scheme to whom this section applies is entitled is benefit under subsection 32(2) as if he were a member of the scheme classified as Class C under section 30.

37 Service Chief may inform authority of grounds of retirement

Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.





Part VI—Benefits on death of member of scheme

Division 1—Spouse’s pension

38 Spouse’s pension on death of contributing member

Where a member of the scheme who is a contributing member dies before retirement and is survived by a spouse, the spouse is entitled to a pension at a rate equal to five‑eighths of the rate at which invalidity pay would have been payable to the deceased member if, on the date of the deceased member’s death, the deceased member had become entitled to invalidity benefit and had been classified as Class A under section 30 and (in the case of a deceased member whose surcharge debt account is in debit when the pension becomes payable) had made an election under subsection 124(1).

39 Spouse’s pension on death of recipient member

(1) Where a member of the scheme who is a recipient member dies and is survived by a spouse, then, subject to sections 47 and 75, the spouse is entitled to a pension at a rate equal to five‑eighths of the rate at which retirement pay or invalidity pay was payable to the deceased member immediately before the member’s death or, if the member had commuted a portion of the member’s retirement pay under section 24 or a portion of the member’s invalidity pay under section 32A, at a rate equal to five‑eighths of the rate at which retirement pay or invalidity pay, as the case may be, would have been payable to the member immediately before the member’s death if the member had not so commuted a portion of the member’s retirement pay or invalidity pay, as the case may be.

(2) In spite of subsection (1), if, on any of the 7 pay‑days immediately following the death of a recipient member, the rate at which pension would, apart from this subsection, be payable to the spouse of the member is less than the rate (in this subsection called the putative rate) at which retirement pay or invalidity pay (as the case may be) would be payable to the deceased member on that day if the member had not died, the spouse is entitled to a pension at a rate equal to the putative rate.

40 Set off against spouse’s pension in certain circumstances

(1) Where:

(a) the spouse of a deceased member of the scheme who was a recipient member immediately before the member’s death is entitled to a pension under subsection 39(2); and

(b) there is paid into an account with a bank an amount purporting to be an instalment of retirement pay or invalidity pay (as the case may be) payable to the member in respect of a period in respect of which a pension is payable to the spouse under subsection 39(2); and

(c) the bank pays, out of that account, to the spouse an amount not exceeding the amount so paid into the account;

then, in spite of any other law:

(d) the bank is not liable to the Commonwealth, the personal representative of the deceased member or anyone else for any loss incurred because of the payment of that amount to the spouse; and

(e) an amount equal to the amount so paid by the bank to the spouse must be set off against any amount of pension payable to the spouse under subsection 39(2).

(2) In this section:

bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

41 Rate of pension payable on death of member of scheme leaving more than one spouse

(1) If a member of the scheme (deceased person) is survived by more than one spouse, the Authority must allocate any pension payable to a spouse in respect of the deceased person under this Act among the spouses.

(2) The Authority must have regard to the respective needs of the spouses when making the allocation.

(3) Subject to subsections (4) and (5), a pension is only payable to each spouse in accordance with the allocation.

(4) The rate of pension payable to each spouse under the allocation must be at least three‑eighths of the rate of the relevant pension in relation to the deceased person under this Act.

(5) The aggregate of the rates of pension payable under an allocation must not exceed 100% of the rate of the relevant pension in relation to the deceased person under this Act.

(6) In subsections (4) and (5), the rate of the relevant pension in relation to the deceased person under this Act is:

(a) in the case of a deceased person who was not a recipient member—the rate at which invalidity pay would have been payable to the deceased person if, on the date of the death, the deceased person:

(i) had been entitled to invalidity benefit; and

(ii) had been classified as Class A under section 30; and

(iii) in the case of a deceased member whose surcharge debt account is in debit when the pension becomes payable—had made an election under subsection 124(1); or

(b) in the case of a deceased recipient member, then, subject to sections 47 and 75:

(i) if subparagraph (ii) does not apply—the rate at which retirement pay or invalidity pay was payable to the deceased recipient member immediately before the death; or

(ii) if a portion of the retirement pay or invalidity pay had been commuted under section 24 or 32A—the rate at which retirement pay or invalidity pay would have been payable to the member immediately before the death if a portion of that retirement pay or invalidity pay had not been so commuted.

41A Commutation of spouse’s pension

(1) Where:

(a) a person is, or becomes, entitled to a pension under this Division because the person is:

(i) a spouse in relation to a contributing member who died on or after the commencement of the Commonwealth Superannuation Schemes Amendment Act 1992; or

(ii) a widow or widower of a contributing member who died on or after the commencement of the Defence Legislation Amendment Act (No. 2) 1990 but before the commencement of the Commonwealth Superannuation Schemes Amendment Ac