25Rate of retirement pay applicable to certain existing contributors

#### 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 CSC 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 CSC within a period of 90 days after the date of his retirement, or within such further period as CSC, 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 CSC 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 CSC determines as being appropriate in the circumstances or arrangements satisfactory to CSC 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.