Establishes an occupational superannuation scheme for Permanent Forces and certain Reservists, implemented by a Trust Deed and administered by CSC, setting member/employer contribution flows, benefit payment mechanics and recovery/reporting rules. The Commonwealth pays any unfunded benefit amounts from Consolidated Revenue.
It affects members, employers, CSC and taxpayers — changing payroll obligations, administrative and recovery powers, decision‑making by the Minister/CSC, and shifting cashflow and contingent public‑cost risk.
The Military Superannuation and Benefits Act 1991 creates a statutory framework for an occupational superannuation scheme specifically tailored for eligible members of the Australian Defence Force. At its core, s.4 obliges the Minister, within 30 days of commencement, to execute a Trust Deed on behalf of the Commonwealth. That Deed must establish the Scheme, establish and vest a Fund in the Board (now CSC), and delineate the functions and powers of the trustee. The Deed is not left to discretion; its form is prescribed in the Schedule to the Act.
The Act then supplies the machinery for membership, contributions, benefit payments, and administration. Section 6 identifies the two classes of person who become members: those in the Permanent Forces and reservists rendering continuous full-time service. This is expressly made subject to the exclusions in s.7, which remove anyone who is already an eligible member under the DFRDB Act 1973, anyone joining on or after 1 July 2016 without a preserved employer benefit, or anyone who has chosen to become an ADF Super member under the 2015 Act.
Contributions are dealt with simply but with important legal consequences. Member contributions required by the Rules “may be deducted from the member’s salary and paid to CSC” (s.9). The Department is placed under a direct obligation to pay its own contributions to CSC in accordance with the Rules, with interest automatically accruing on late payments at a rate determined by CSC (s.10).
Part 5 is the longest and most technically dense portion of the statute. It distinguishes between member benefits, employer benefits, and preserved benefits and then allocates financial responsibility between CSC (which holds the funded portion) and the Commonwealth. Where a member benefit that is “totally funded” (defined in s.11 as the member’s own contributions plus interest) becomes payable, CSC pays it directly (s.12(a)). If the benefit is only partly funded, CSC pays the funded component to the Commonwealth and the Commonwealth pays the full benefit to the former member (s.12(b)). Parallel mechanics apply to employer benefits (s.13) and preserved benefits (s.14), with additional gross-up calculations where both member and employer components are preserved.
Current sections
Direct links to the current provisions in Military Superannuation and Benefits Act 1991.
46
Part 1
Preliminary
Part 1—Preliminary
1
Short title
1 Short title
This Act may be cited as the Military Superannuation and Benefits Act 1991.
2
Commencement
2 Commencement
(1) Parts 1, 2, 6 and 7 and sections 42, 47 and 50 to 52 commence on the day on which this Act receives the Royal Assent.
(2) Section 61 commences on 1 September 1991.
(3) The remaining provisions of this Act commence on 1 October 1991.
3
Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears:
associate benefit means a benefit that is payable under provisions of the Trust Deed that are authorised by section 5A.
Board means the Military Superannuation and Benefits Board of Trustees No. 1 established by section 18, as in force before its repeal by item 110 of Schedule 1 to the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011.
CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
DFRDB Act means the Defence Force Retirement and Death Benefits Act 1973.
Fund means the fund established, and vested in the Board, by the Trust Deed.
Note: From 1 July 2011, the fund is vested in CSC.
member of the Scheme has the meaning given by sections 6 and 7.
Rules means the Rules for the administration of the Scheme set out in the Schedule to the Trust Deed.
Scheme means the superannuation scheme established by the Trust Deed.
Trust Deed means the deed referred to in section 4 and includes that deed as subsequently amended under section 5.
(2) Unless the contrary intention appears, a word or expression:
(a) defined, for the purposes of the Rules, in Schedule 1 to the Rules; and
(b) used in a provision of this Act other than the Deed;
has in that provision the same meaning as it has in the Rules.
3A
Application of the Criminal Code
3A 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 2
The Trust Deed
Part 2—The Trust Deed
4
Deed to establish Superannuation Scheme etc.
4 Deed to establish Superannuation Scheme etc.
(1) Not later than 30 days after the commencement of this Act, the Minister must, for and on behalf of the Commonwealth, by deed:
(a) establish an occupational superannuation scheme for the benefit of persons who, on and after the commencement of Part 3, will be, under that Part, members of the scheme; and
(b) establish, and vest in the Board, a fund for the purposes of the superannuation scheme; and
(c) set out the functions and powers of the Board.
(2) The deed must be in the form set out in the Schedule.
5
Amendment of Trust Deed
5 Amendment of Trust Deed
(1) The Minister may, by legislative instrument signed by the Minister, amend the Trust Deed.
(1AA) Without limiting subsection (1), the Minister may amend the Trust Deed to:
(a) authorise CSC to:
(i) accept particular kinds of amounts in respect of particular kinds of people who are not members of the Scheme; and
(ii) deal with those amounts under the Deed; and
(b) define the functions of CSC in relation to those amounts; and
(c) include provisions in the Rules dealing with:
(i) the manner in which those amounts will be dealt with; and
(ii) the benefits that are to become payable in relation to those amounts; and
(iii) the circumstances in which entitlements to receive those benefits will arise; and
(iv) any other matter relating to those amounts or those benefits.
(1A) The Minister may not amend the Trust Deed unless:
(a) CSC has consented to the amendment; or
(b) the amendment:
(i) relates to a payment of an employer contribution that will, after the making of the amendment, be required or permitted to be made under this Act; or
(ii) relates solely to the termination of the Scheme; or
(iii) is made in circumstances covered by regulations made for the purposes of subparagraph 60(1)(b)(iii) of the Superannuation Industry (Supervision) Act 1993.
(1B) For the purposes of subparagraph (1A)(b)(i), a payment under the Trust Deed is taken to be a payment of an employer contribution.
(2) If compliance with a provision of the Trust Deed as amended under subsection (1) would have the effect that the Scheme:
(a) would not be a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; or
(b) would not comply with that Act;
that provision is invalid.
5A
Amendments of Trust Deed to implement family law interest splitting
5A Amendments of Trust Deed to implement family law interest splitting
(1) Without limiting subsection 5(1), amendments under that subsection:
(a) may provide that, when a splitting agreement or splitting order is received by CSC in respect of a superannuation interest under this Act:
(i) the non‑member spouse is entitled to benefits determined in accordance with the Rules; and
(ii) the benefits of the member spouse are reduced in accordance with the Rules; and
(b) may provide that, when a splitting agreement or splitting order is received by CSC in respect of a superannuation interest under:
(i) section 52 of the Defence Act 1903; or
(ii) the Defence Force Retirement and Death Benefits Act 1973;
the non‑member spouse is entitled to benefits determined in accordance with the Rules; and
(c) may make any other provision that is related to, or consequential on, provisions referred to in paragraph (a) or (b).
(2) Subparagraph (1)(b)(ii) does not apply in a case covered by subsection 49B(2) of the Defence Force Retirement and Death Benefits Act 1973.
(3) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to amendments referred to in subsection (1) of this section.
(4) In this section:
member spouse means a member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
non‑member spouse means a non‑member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
splitting agreement means:
(a) a superannuation agreement (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975); or
(b) a flag lifting agreement (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975) that provides for a payment split (within the meaning of that Part).
splitting order means a splitting order within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
superannuation interest means a superannuation interest within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
Part 3
Members of Superannuation Scheme
Part 3—Members of Superannuation Scheme
6
Membership of Superannuation Scheme
6 Membership of Superannuation Scheme
(1) Each of the following persons is a member of the Scheme:
(a) a person who is a member of the Permanent Forces;
(b) a member of the Reserves who is rendering a period of continuous full‑time service.
(2) This section is subject to section 7.
7
Persons excluded from membership of Superannuation Scheme
7 Persons excluded from membership of Superannuation Scheme
Defence Force Retirement and Death Benefits scheme
(1) A person is not a member of the Scheme if the person is an eligible member of the Defence Force for the purposes of the DFRDB Act.
Those commencing on or after 1 July 2016
(2) A person is not a member of the Scheme if:
(a) the person does not have a preserved benefit that includes an amount of employer benefit; and
(b) on or after 1 July 2016:
(i) the person becomes a member of the Permanent Forces; or
(ii) the person, as a member of the Reserves, begins to render continuous full‑time service.
Those choosing Australian Defence Force Superannuation
(3) A person is not a member of the Scheme if the person has chosen to become an ADF Super member under section 12 of the Australian Defence Force Superannuation Act 2015 (whether or not the person is still an ADF Super member).
8
Cases where person taken not to have ceased to be a member
8 Cases where person taken not to have ceased to be a member
Where a person ceases to be a member and, immediately after so ceasing, again becomes a member, the person is taken, for the purposes of this Act, not to have ceased to be a member.
Part 4
Contributions
Part 4—Contributions
9
Contributions of members to Superannuation Scheme etc. to be deducted from salary
9 Contributions of members to Superannuation Scheme etc. to be deducted from salary
Any contribution payable by a member under the Rules may be deducted from the member’s salary and paid to CSC.
10
Contributions to Superannuation Scheme etc. by Department
10 Contributions to Superannuation Scheme etc. by Department
(1) The Department must pay to CSC, in accordance with the Rules, all contributions that under the Rules are payable by the Department in respect of a member.
(2) Where any amount payable by the Department under subsection (1) remains unpaid after the day on which payment was due, the Department is liable to pay to CSC interest on that amount at such rate as CSC determines from time to time.
Part 5
Payment of benefits
Part 5—Payment of benefits
11
Interpretation
11 Interpretation
In this Part, a reference, in relation to a person who has ceased to be a member, to a member benefit, or to the part of a member benefit, that is totally funded is a reference to a member benefit, or to that part of a member benefit that consists only of:
(a) contributions that have been paid by the person to CSC on or after the day on which the person became, or last became, a member; and
(b) the interest on those contributions.
12
Member benefits
12 Member benefits
Where a member benefit becomes payable under the Rules to a person who has ceased to be a member:
(a) if the member benefit is totally funded—the member benefit is payable to the person by CSC; or
(b) if paragraph (a) does not apply:
(i) an amount equal to the part of the member benefit that is totally funded is payable by CSC to the Commonwealth; and
(ii) the member benefit is payable to the person by the Commonwealth.
13
Employer benefits
13 Employer benefits
Where an employer benefit becomes payable under the Rules to a person who has ceased to be a member:
(a) an amount equal to the funded employer benefit in relation to the person is payable by CSC to the Commonwealth; and
(b) any benefit to which the person is entitled is payable to the person by the Commonwealth.
14
Preserved benefits
14 Preserved benefits
(1) Where:
(a) a preserved benefit, or part of a preserved benefit, applicable to a person who has ceased to be a member becomes payable; and
(b) the preserved benefit, or the part of the preserved benefit, consists only of an amount of member benefit;
then:
(c) if the preserved benefit consists only of an amount of member benefit that is totally funded—the preserved benefit, or the part of the preserved benefit, is payable to, or in respect of, the person by CSC; or
(d) if paragraph (c) does not apply:
(i) an amount equal to:
(A) if the total amount of preserved benefit is payable—the part of the member benefit that is totally funded; or
(B) if a part of a preserved benefit is payable—a corresponding part of the part of the member benefit that is totally funded;
is payable by CSC to the Commonwealth; and
(ii) the preserved benefit, or the part of the preserved benefit, is payable to, or in respect of, the person by the Commonwealth.
(2) Where:
(a) a preserved benefit applicable to a person who has ceased to be a member becomes payable; and
(b) the preserved benefit includes both an amount of member benefit and an amount of employer benefit;
then:
(c) an amount equal to the sum of:
(i) the part of the member benefit included in the preserved benefit that is totally funded; and
(ii) so much of the funded employer benefit in relation to the person as is included in the preserved benefit;
is payable by CSC to the Commonwealth; and
(d) the preserved benefit is payable to, or in respect of, the person by the Commonwealth.
15
Payment by or to the Commonwealth on reclassification of invalidity pensioner
15 Payment by or to the Commonwealth on reclassification of invalidity pensioner
(1) Where a person who is an invalidity pensioner classified as Class A or Class B is reclassified as Class C, the Commonwealth must pay to CSC an amount equal to the amount of the funded employer benefit in relation to the person at the time when the person was retired on the ground of invalidity.
(2) Where:
(a) a person who was an invalidity pensioner classified as Class A or Class B was reclassified as Class C; and
(b) the person is subsequently reclassified as Class A or Class B;
CSC must pay to the Commonwealth an amount equal to the funded employer benefit in relation to the person.
16
Payment by Commonwealth where an invalidity pensioner again becomes a member
16 Payment by Commonwealth where an invalidity pensioner again becomes a member
Where a person who is an invalidity pensioner again becomes a member, the Commonwealth must pay to CSC an amount equal to the amount of the funded employer benefit in relation to the person at the time when the person was retired on the ground of invalidity.
16A
Payments relating to associate benefits
16A Payments relating to associate benefits
(1) Where an associate benefit becomes payable under the Rules, the Commonwealth must pay the benefit to such person or persons as are appropriate under the Rules.
(2) CSC must pay to the Commonwealth any amount that CSC is required under the Rules to pay to the Commonwealth in respect of an associate benefit.
16B
Recoverable payments
16B Recoverable payments
(1) If, apart from this subsection, the Commonwealth does not have power, under this Act, to pay an amount (the relevant amount) to a person (the recipient) purportedly as a benefit under the Rules, then the Commonwealth may pay the relevant amount to the recipient.
Recovery
(2) If a payment is made under subsection (1) to the recipient, the relevant amount:
(a) is a debt due to the Commonwealth by the recipient; and
(b) may be recovered by CSC, on behalf of the Commonwealth, in a court of competent jurisdiction.
(3) If:
(a) a payment is made under subsection (1) to the recipient; and
(b) the recipient is receiving, or is entitled to receive, a benefit under the Rules;
then:
(c) the relevant amount; or
(d) such part of the relevant amount as the Board of CSC determines;
may, if the Board of CSC so directs, be recovered by deduction from that benefit.
16C
Recoverable death payments
16C Recoverable death payments
(1) If, apart from this subsection, the Commonwealth does not have power under this Act to pay an amount (the relevant amount) in any of the following circumstances:
(a) the relevant amount is deposited to an account kept in the name of a deceased person;
(b) the relevant amount is deposited to an account kept in the names of a deceased person and another person;
(c) the relevant amount is paid by way of a cheque made out to a deceased person;
the Commonwealth may pay the relevant amount in the circumstances mentioned in paragraph (a), (b) or (c), so long as:
(d) on the last day on which changes could reasonably be made to the payment of the relevant amount, the chief executive officer (however described) of CSC did not know that the deceased person had died; and
(e) apart from this subsection, the relevant amount would have been payable as a benefit to the deceased person if the deceased person had not died.
(2) If a payment is made under subsection (1), the relevant amount is taken to have been paid to the deceased person’s estate.
Recovery
(3) If a payment is made under subsection (1), the relevant amount:
(a) is a debt due to the Commonwealth by the legal personal representative of the deceased person; and
(b) may be recovered by CSC, on behalf of the Commonwealth, in a court of competent jurisdiction.
16D
Reports about recoverable payments and recoverable death payments
16D Reports about recoverable payments and recoverable death payments
(1) CSC must cause a report of the following information to be published, in such manner as the Board of CSC thinks fit:
(a) the number of payments that any employee of CSC was aware of that were made under subsection 16B(1) or 16C(1) during the reporting period (see subsection (2) of this section);
(b) the total amount of payments referred to in paragraph (a);
(c) the number of payments made under subsection 16B(1) or 16C(1) that any employee of CSC became aware of during the reporting period that were made during an earlier reporting period;
(d) the total amount of payments referred to in paragraph (c);
(e) for each payment referred to in paragraph (c)—the reporting period in which the payment was made.
(2) The reporting period is:
(a) a financial year; or
(b) if a shorter recurring period is prescribed under paragraph (5)(a)—that period.
(3) A report is not required if no employee of CSC is aware of any payments referred to in paragraph (1)(a) or (c).
When report must be provided
(4) The report must be provided before the end of the following period:
(a) 4 months after the end of the reporting period;
(b) if a lesser number of months has been prescribed for the reporting period under paragraph (5)(b)—that number of months after the end of the reporting period.
Power to make legislative instruments
(5) The Minister may, by legislative instrument, prescribe:
(a) a period for the purposes of paragraph (2)(b); or
(b) a number of months for a reporting period for the purposes of paragraph (4)(b).
17
Appropriation
17 Appropriation
Any payment by the Commonwealth under this Part is to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.
Part 6
CSC
Part 6—CSC
18
Functions and powers
18 Functions and powers
(1) The functions and powers of CSC are those set out in the Trust Deed.
Note: For other functions of CSC, see section 8 of the Governance of Australian Government Superannuation Schemes Act 2011.
(2) CSC is also responsible for the general administration of this Act.
Part 9
Miscellaneous
Part 9—Miscellaneous
42
Cost of administration of Act etc.
42 Cost of administration of Act etc.
The costs of the administration of this Act and of the Trust Deed, excluding the costs of and incidental to the management of the Fund by CSC and the investment of its money, are to be paid out of money appropriated from time to time by Parliament for the purpose.
42A
CSC liable to pay surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997
42A CSC liable to pay surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997
(1) To remove any doubt, it is stated that:
(a) for the purposes of the Superannuation Contributions Tax (Assessment and Collection) Act 1997, CSC in its capacity as a superannuation provider is an entity distinct from the Commonwealth; and
(b) consequently, section 33 of that Act does not affect the liability of CSC under that Act to pay surcharge on the surchargeable contributions of members.
(2) Amounts payable by CSC under subsection 16(6) of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.
43
Recovery of unpaid contributions etc.
43 Recovery of unpaid contributions etc.
(1) Any amount (including an amount of contributions) that is payable to CSC under this Act or the Rules may be recovered by CSC in a court of competent jurisdiction as a debt.
(2) Any contribution payable by a person to CSC under the Rules that remains unpaid when the person ceases to be a member may be deducted from any payment or payments of benefit payable under the Rules to, or in respect of, the person.
(3) Where for any reason (including the making of, or cancellation of, an election under the Rules), CSC had paid an amount of benefit that is, or has become, not payable:
(a) the amount so paid may be recovered by CSC in a court of competent jurisdiction as a debt; or
(b) where the person to whom that amount was paid is receiving, or is entitled to receive, a benefit under the Rules, the amount so paid, or such part of that amount as CSC determines, may, if CSC in its discretion so directs, be recovered by deduction from that benefit.
44
Payment of fees
44 Payment of fees
(1) Such fees as are prescribed are payable to the Commonwealth by a person who, under the Rules, requests CSC to reconsider one of its decisions.
(2) The regulations may make provision for and in relation to the refund of any fees paid under subsection (1).
45
Assignment of benefits
45 Assignment of benefits
No pension or other benefit payable under the Rules is capable of being assigned.
46
Member etc. bound by Rules
46 Member etc. bound by Rules
(1) A person who is, or has ceased to be, a member is subject to the Rules to the extent that they are applicable in relation to the person.
(1A) A person who is, or has ceased to be, an associate is subject to the Rules to the extent that they are applicable in relation to the person. For this purpose, associate means a person to whom an associate benefit is payable.
(2) The Commonwealth is subject to the Rules to the extent that they are applicable in relation to the Commonwealth.
47
Indemnification
47 Indemnification
(1) Any matter or thing done, or omitted to be done, in good faith by:
(d) a member of an Incapacity Classification Committee established under the Rules; or
(e) a member of a Reconsideration Advisory Committee established under the Rules;
does not subject him or her personally to any action, liability, claim or demand.
(2) Subsection (1) does not preclude CSC from being subject to any action, liability, claim or demand.
48
Bank not liable in respect of certain payments out of account of deceased pensioner
48 Bank not liable in respect of certain payments out of account of deceased pensioner
(1) 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.
primary pension means a pension payable to a pensioner.
(2) Where:
(a) after the death of a retirement pensioner, an amount purporting to be an instalment of primary pension payable to the pensioner on a pension pay day not later than the 7th pension pay day after his or her death is paid into an account of the pensioner with a bank; and
(b) the bank pays, out of that account, to the spouse of the deceased pensioner an amount not exceeding the amount so paid into the account;
then, in spite of any other law, the bank is not liable to the Commonwealth, the personal representative of the deceased pensioner or anyone else for any loss incurred because of the payment of that amount to the spouse of the pensioner.
48A
CSC may rely on information supplied by the Department
48A CSC may rely on information supplied by the Department
(1) For the purposes of the Trust Deed in its application to or in respect of a person who is or has been a member of the Scheme, CSC may presume that any information provided to CSC by the Department is correct.
(2) If a tribunal, authority or person is empowered:
(a) to review a decision of CSC under this Act, the regulations or the Trust Deed; and
(b) to vary, or make a decision in substitution for, CSC’s decision under this Act, the regulations or the Trust Deed;
the tribunal, authority or person is not bound by any presumption made by CSC under subsection (1).
49
Amendments to Trust Deed disallowable under the Legislation Act 2003
49 Amendments to Trust Deed disallowable under the Legislation Act 2003
Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument amending the Trust Deed.
51
Delegation by Minister
51 Delegation by Minister
The Minister may, by signed instrument, delegate all or any of his or her powers under this Act or the regulations to:
(a) CSC or an employee of CSC; or
(aa) a director (within the meaning of the Governance of Australian Government Superannuation Schemes Act 2011); or
(b) an officer of the Department; or
(d) an officer of the Defence Force.
51A
Transitional—MSB Instrument No. 3 of 1993 to have retrospective effect
51A Transitional—MSB Instrument No. 3 of 1993 to have retrospective effect
Application
(1) This section applies to a member benefit that was or is payable under the Rules to a person because the person ceased to be a member during either of the following periods:
(a) the period beginning on 1 October 1991 and ending at the end of 26 May 1992;
(b) the period beginning on 9 September 1992 and ending at the end of 21 April 1993.
Retrospective effect
(2) In calculating the member benefit, the Rules have effect as if MSB Instrument No. 3 of 1993 had been made, and had come into force, on 1 October 1991.
Repayment of excess
(3) If:
(a) the member benefit has been paid to the person; and
(b) the amount paid exceeds the amount that the person would have been entitled to be paid if MSB Instrument No. 3 of 1993 had been made, and had come into force, on 1 October 1991;
the person is liable to repay the amount of the excess.
Recovery of repayment
(4) If a person is liable to repay an amount under subsection (3):
(a) the amount may be recovered as a debt due to the Board or the Commonwealth, as the case may be; and
(b) the amount may be deducted from any other amount that is payable to the person by the Board or the Commonwealth, as the case may be.
Definition
(5) In this section:
MSB Instrument No. 3 of 1993 means Instrument No. 3 of 1993 made under subsection 5(1) on 19 April 1993 and notified in the Gazette on 22 April 1993.
51B
Transitional—recoverable payments relating to retention benefit
51B Transitional—recoverable payments relating to retention benefit
(1) If, apart from this subsection, the Commonwealth does not have power, under repealed Part 8 of this Act as continued in force by item 4 of Schedule 4 to the Defence Legislation Amendment Act (No. 1) 2005, to pay an amount (the relevant amount) to a person (the recipient) purportedly as a retention benefit, then the Commonwealth may pay the relevant amount to the recipient.
Recovery
(2) If a payment is made under subsection (1) to the recipient, the relevant amount:
(a) is a debt due to the Commonwealth by the recipient; and
(b) may be recovered by the Secretary of the Department, on behalf of the Commonwealth, in a court of competent jurisdiction.
(3) If:
(a) a payment is made under subsection (1) to the recipient; and
(b) the recipient is receiving, or is entitled to receive, an amount under a determination made under Part IIIA of the Defence Act 1903;
then:
(c) the relevant amount; or
(d) such part of the relevant amount as the Secretary of the Department determines;
may, if the Secretary of the Department so directs, be recovered by deduction from the amount mentioned in paragraph (b).
Appropriation
(4) For the purposes of repealed section 39 of this Act as continued in force by item 4 of Schedule 4 to the Defence Legislation Amendment Act (No. 1) 2005, a payment under subsection (1) of this section is taken to be a retention benefit.
Retention benefit
(5) For the purposes of this section, retention benefit means retention benefit under repealed Part 8 of this Act as continued in force by item 4 of Schedule 4 to the Defence Legislation Amendment Act (No. 1) 2005.
51C
Transitional—reports about recoverable payments
51C Transitional—reports about recoverable payments
(1) During the applicable publication period for a reporting period, the Secretary of the Department must cause to be published, in such manner as the Secretary thinks fit, a report that sets out:
(a) the number of payments made under subsection 51B(1) during the reporting period; and
(b) the total amount of those payments.
(2) However, a report is not required if the number mentioned in paragraph (1)(a) is zero.
Deferred reporting
(3) Subsection (1) of this section does not require a report to deal with a payment unless, before the preparation of the report, a Departmental official was aware the payment was made under subsection 51B(1).
(4) For the purposes of this section, if:
(a) a payment was made under subsection 51B(1) in a reporting period; and
(b) because of subsection (3) of this section, subsection (1) of this section did not require a report to deal with the payment; and
(c) during a later reporting period, a Departmental official becomes aware that the payment was made under subsection 51B(1);
the payment is subject to a deferred reporting obligation in relation to the later reporting period.
(5) If one or more payments made under subsection 51B(1) during a reporting period are subject to a deferred reporting obligation in relation to a later reporting period, the Secretary of the Department must, during the applicable publication period for the later reporting period:
(a) prepare a report that sets out:
(i) the number of those payments; and
(ii) the total amount of those payments; and
(iii) the reporting period during which the payments were made; and
(b) if a report is required under subsection (1) in relation to the later reporting period—include the paragraph (a) report in the subsection (1) report; and
(c) if paragraph (b) does not apply—publish, in such manner as the Secretary thinks fit, the paragraph (a) report.
Reporting period
(6) For the purposes of this section, a reporting period is:
(a) a financial year; or
(b) if a shorter recurring period is specified in a legislative instrument made by the Minister—that period.
Applicable publication period
(7) For the purposes of this section, the applicable publication period for a reporting period is the period of:
(a) 4 months; or
(b) if a lesser number of months is specified, in relation to the reporting period, in a legislative instrument made by the Minister—that number of months;
beginning immediately after the end of the reporting period.
Departmental official
(8) For the purposes of this section, Departmental official means an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of the Department.
52
Regulations
52 Regulations
(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters that:
(a) are required or permitted to be prescribed by this Act; or
(b) are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Regulations may not be made after the commencement of this subsection unless:
(a) CSC has consented to the making of the regulations; or
(b) the regulations:
(i) relate to a payment of an employer contribution that will, after the making of the regulations, be required or permitted to be made under this Act; or
(ii) relate solely to the termination of the Scheme; or
(iii) are made in circumstances covered by regulations made for the purposes of subparagraph 60(1)(b)(iii) of the Superannuation Industry (Supervision) Act 1993.
(3) For the purposes of subparagraph (2)(b)(i), a payment under the Trust Deed is taken to be a payment of an employer contribution.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1—Preliminary
1 Short title
1 Short title
This Act may be cited as the Military Superannuation and Benefits Act 1991.
2 Commencement
2 Commencement
(1) Parts 1, 2, 6 and 7 and sections 42, 47 and 50 to 52 commence on the day on which this Act receives the Royal Assent.
(2) Section 61 commences on 1 September 1991.
(3) The remaining provisions of this Act commence on 1 October 1991.
3 Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears:
associate benefit means a benefit that is payable under provisions of the Trust Deed that are authorised by section 5A.
Board means the Military Superannuation and Benefits Board of Trustees No. 1 established by section 18, as in force before its repeal by item 110 of Schedule 1 to the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011.
CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
DFRDB Act means the Defence Force Retirement and Death Benefits Act 1973.
Fund means the fund established, and vested in the Board, by the Trust Deed.
Note: From 1 July 2011, the fund is vested in CSC.
member of the Scheme has the meaning given by sections 6 and 7.
Rules means the Rules for the administration of the Scheme set out in the Schedule to the Trust Deed.
Scheme means the superannuation scheme established by the Trust Deed.
Trust Deed means the deed referred to in section 4 and includes that deed as subsequently amended under section 5.
(2) Unless the contrary intention appears, a word or expression:
(a) defined, for the purposes of the Rules, in Schedule 1 to the Rules; and
(b) used in a provision of this Act other than the Deed;
has in that provision the same meaning as it has in the Rules.
3A Application of the Criminal Code
3A Application of the Criminal Code
Invalidity pensioners receive special treatment. Reclassification from Class A or B to Class C triggers a payment from the Commonwealth to CSC of the funded employer benefit that was originally drawn down (s.15(1)). A subsequent return to Class A or B reverses the transaction (s.15(2)). If an invalidity pensioner re-joins the Scheme as a member, the Commonwealth must again top up CSC with the funded employer benefit amount (s.16).
Family law interest splitting is expressly authorised by s.5A. The Minister may amend the Trust Deed to treat a splitting agreement or splitting order under Part VIIIB or VIIIC of the Family Law Act 1975 as giving the non-member spouse an entitlement to benefits under the Rules while reducing the member spouse’s benefits. The same machinery can be used for interests arising under s.52 of the Defence Act 1903 or the DFRDB Act 1973 (subject to the carve-out in s.5A(2)).
The Act also contains modern overpayment safeguards. Sections 16B and 16C permit the Commonwealth to make payments it otherwise lacks power to make—either to living recipients or in respect of deceased estates—provided the chief executive of CSC was unaware of the relevant facts at the last practicable moment. These “recoverable payments” and “recoverable death payments” are declared to be debts recoverable by CSC, and may be offset against future benefits. Section 16D imposes a statutory reporting obligation on CSC to publish statistics on such payments, including deferred reporting of amounts discovered in later periods. The appropriation for all Commonwealth payments is supplied by s.17.
Administration is vested in CSC. Its functions and powers are those set out in the Trust Deed, plus the general administration of the Act itself (s.18). Costs of administration (other than investment management) are met from parliamentary appropriations (s.42). CSC is treated as a distinct entity for surcharge purposes under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (s.42A).
Miscellaneous provisions round out the scheme: prohibition on assignment of benefits (s.45), binding effect of the Rules on members, associates, and the Commonwealth (s.46), indemnification of committee members acting in good faith (s.47), protection for banks paying small post-death pension instalments to spouses (s.48), a statutory presumption that Departmental information supplied to CSC is correct (s.48A), disallowance of Trust Deed amendments under the Legislation Act 2003 (s.49), ministerial delegation (s.51), and a regulation-making power that itself contains consent and limitation requirements mirroring those for Deed amendments (s.52).
In short, the Act does not itself contain the detailed benefit formulas or investment rules; those sit in the Trust Deed and Rules. The statute’s function is to give those instruments statutory force, to allocate fiscal responsibility between CSC and the Commonwealth with precision, to integrate the Scheme with contemporary family law and superannuation regulatory requirements, and to provide transparent mechanisms for correcting payment errors.
Who it affects
The primary cohort comprises serving members of the Permanent Forces and reservists on continuous full-time service (s.6). However, three classes of person are carved out by s.7. First, anyone who remains an “eligible member of the Defence Force” under the DFRDB Act 1973 is excluded. Second, post-1 July 2016 entrants who have no preserved employer benefit from earlier service cannot join. Third, anyone who has elected to become an ADF Super member under s.12 of the Australian Defence Force Superannuation Act 2015 is excluded, whether or not they remain in that scheme.
Once a person has joined, s.8 prevents artificial breaks in membership: if a person ceases to be a member and immediately becomes a member again, they are taken never to have ceased. This preserves continuity for benefit calculations.
Former members remain subject to the Rules “to the extent that they are applicable” (s.46(1)). So too are “associates”—persons entitled to an associate benefit under the family-law-splitting provisions authorised by s.5A (s.46(1A)).
The Commonwealth itself is bound by the Rules to the extent they apply to it (s.46(2)). CSC, as successor trustee, is the recipient of all contributions, the payer of funded benefits, the recipient of funded components from the Commonwealth, and the entity responsible for reporting recoverable payments.
Spouses of deceased pensioners receive indirect protection through s.48, which shields banks that pay small post-death pension instalments into a deceased member’s account. Legal personal representatives of deceased members are potentially liable for recoverable death payments (s.16C(3)).
Finally, the legislation affects anyone who obtains a superannuation interest splitting order or agreement under the Family Law Act 1975 in respect of an MSBS interest or a linked DFRDB interest. Such non-member spouses become entitled to benefits determined under the Rules (s.5A(1)(a)–(b)).
Key duties and rights
Members’ duties and rights. A member must allow contributions to be deducted from salary (s.9). They are bound by the Rules (s.46(1)). In return they acquire rights to member benefits, employer benefits, and preserved benefits on the occurrence of events specified in the Rules. Where those benefits are totally funded, the member has a direct right against CSC (ss.12(a), 14(1)(c)). Otherwise the right lies against the Commonwealth, funded in part by a transfer from CSC.
Invalidity pensioners have dynamic rights: their classification as Class A, B or C directly affects the funded employer benefit and triggers payment obligations between the Commonwealth and CSC (ss.15–16).
CSC’s duties and rights. CSC must accept and invest contributions, pay funded benefits or funded components to the Commonwealth, administer the Trust Deed, and generally administer the Act (s.18). It determines the interest rate on late Departmental contributions (s.10(2)). It may recover unpaid contributions or overpaid benefits as debts or by deduction from future payments (s.43). CSC enjoys a statutory presumption that information supplied by the Department is correct (s.48A(1)), although that presumption does not bind any review tribunal (s.48A(2)). It must publish annual reports on recoverable payments and recoverable death payments (s.16D).
Commonwealth’s duties and rights. The Commonwealth must pay employer contributions (s.10(1)), meet the unfunded portion of all benefits (ss.12(b), 13(b), 14), appropriate funds under s.17, and make top-up payments on invalidity reclassifications or re-enlistments (ss.15–16). It may recover overpayments as debts (ss.16B(2), 16C(3)) and offset them against ongoing benefits. It is bound by the Rules (s.46(2)).
Minister’s powers. The Minister must execute the original Trust Deed (s.4) and may amend it by legislative instrument (s.5(1)), subject to CSC consent or the narrow exceptions in s.5(1A). The Minister may delegate powers to CSC, its directors, departmental officers, or Defence Force officers (s.51). The Minister may also make regulations (s.52) and prescribe reporting periods and timeframes by legislative instrument (s.16D(5)).
Associate rights. Non-member spouses under family law splits receive benefits determined by the Rules (s.5A(1)(a)).
Penalties and enforcement
The Act itself contains no criminal offence provisions; instead s.3A applies Chapter 2 of the Criminal Code to any offences that may be created by the Rules or regulations. Enforcement is predominantly civil.
CSC may sue for unpaid contributions or overpaid benefits in a court of competent jurisdiction (ss.43(1), 43(3)(a)). Debts arising from recoverable payments or recoverable death payments may likewise be recovered by CSC (ss.16B(2)(b), 16C(3)(b)). Offsetting against future benefits is expressly authorised (ss.16B(3), 43(3)(b), 43(2)).
Fees are payable for requests to reconsider CSC decisions (s.44(1)), although the regulations may provide for refunds (s.44(2)).
Breach of the prohibition on assignment of benefits (s.45) renders any purported assignment ineffective, although the Act does not create a separate cause of action.
Indemnification is provided to members of Incapacity Classification Committees and Reconsideration Advisory Committees for acts or omissions in good faith (s.47(1)), but CSC itself remains exposed (s.47(2)).
How it interacts with other laws
The Act is deliberately interwoven with several statutes. The DFRDB Act 1973 supplies the primary exclusion from membership (s.7(1)) and can be the source of interests that are split under s.5A(1)(b)(ii). The Superannuation Industry (Supervision) Act 1993 (SIS Act) is elevated to a validity threshold: any provision of the amended Trust Deed that would cause the Scheme to cease being a regulated superannuation fund or to breach the SIS Act is invalid (s.5(2)). Consent requirements for Deed amendments and regulations mirror the exceptions in SIS Act s.60(1)(b)(iii) (ss.5(1A)(b)(iii), 52(2)(b)(iii)).
Family law is integrated via s.5A, which imports the definitions of “member spouse”, “non-member spouse”, “splitting agreement”, “splitting order”, and “superannuation interest” from Parts VIIIB and VIIIC of the Family Law Act 1975. Retrospective application of legislative instruments is excluded for these amendments (s.5A(3)).
The Governance of Australian Government Superannuation Schemes Act 2011 supplies the current meaning of “CSC” and adds functions beyond those in the Trust Deed (ss.3(1), 18(1) note). The Legislation Act 2003 governs the making and disallowance of amendments to the Trust Deed (ss.5(1), 49).
The Public Governance, Performance and Accountability Act 2013 supplies the definition of “Departmental official” for the transitional recoverable payment reporting regime (s.51C(8)).
The Banking Act 1959 definition of ADI is incorporated by reference in s.48(1). The Criminal Code’s general principles of criminal responsibility apply to any offences created under the Act (s.3A).
Finally, the Australian Defence Force Superannuation Act 2015 interacts by excluding choosers from MSBS membership (s.7(3)).
Recent changes and why
Although the provided text is a compilation, several amendments are visible on the face of the Act and illustrate the legislative policy trajectory.
The insertion of s.5A (family law interest splitting) and the associated definitions reflect the Commonwealth’s policy of ensuring that military superannuation interests are treated like other superannuation interests under the Family Law Act following the 2002 and 2007 amendments to that Act. The exemption from retrospective application of legislative instruments (s.5A(3)) was inserted to give immediate effect to splitting orders without the usual delay.
The addition of ss.16B–16D (recoverable payments and reporting) responds to the general Commonwealth policy, implemented across many portfolios, of regularising inadvertent overpayments while maintaining transparency and accountability. The parallel transitional provisions in ss.51B–51C for the repealed retention benefit regime show the same policy applied to legacy schemes.
Exclusions in s.7(2) and (3) for post-1 July 2016 joiners and ADF Super choosers implement the 2015 government decision to close MSBS to new members and introduce a new accumulation scheme (ADF Super). The note to the definition of “Fund” records the 1 July 2011 transfer of the fund from the repealed Board to CSC.
Section 42A was inserted to put beyond doubt that CSC, not the Commonwealth, is the superannuation provider for surcharge purposes—an amendment required after the introduction of member surcharge in the late 1990s.
The overall trend is toward tighter fiscal control, greater alignment with mainstream superannuation and family law rules, and improved transparency around payment errors.
Court challenges and controversies
The Act does not itself record decided cases, but its structure has generated well-known categories of dispute.
First, invalidity classification decisions have been fertile ground for litigation. Because reclassification from Class A or B to Class C triggers an immediate payment obligation from the Commonwealth to CSC (s.15(1)), and the reverse triggers repayment (s.15(2)), the financial stakes are high. Review rights under the Trust Deed and the Administrative Decisions (Judicial Review) Act 1977 have been used to challenge both the medical evidence and the application of the Rules’ classification criteria.
Second, the interaction between preserved benefits and the “totally funded” calculation (s.11) has produced disputes about the precise quantum of member versus employer components, especially where interest crediting rates or contribution histories are contested.
Third, the statutory presumption in s.48A(1) that Departmental information is correct has been tested in review proceedings. The express statement in s.48A(2) that a reviewing tribunal is not bound by the presumption indicates Parliament anticipated that CSC’s reliance on Defence data would sometimes be challenged.
Fourth, family law splitting orders have raised questions about the interaction between s.5A and the payment mechanics in Part 5. Because a splitting order can reduce the member spouse’s benefits while creating an associate benefit payable by the Commonwealth (s.16A), valuation and timing disputes have arisen.
Finally, the recoverable payment provisions (ss.16B–16C) are designed to prevent arguments that the Commonwealth lacked power to pay; the provisions have removed a jurisdictional defence that was previously available in recovery actions.
Gotchas
Most practitioners assume that once a benefit is “payable under the Rules” the Commonwealth or CSC will simply write a cheque. That is not how the Act works. The statute deliberately fragments payment responsibility: CSC pays only the funded component; the Commonwealth pays the remainder. A failure to identify which paragraph of ss.12, 13 or 14 applies can produce an incorrect payment direction and trigger a recoverable payment debt.
The definition of “totally funded” in s.11 looks straightforward but is limited to post-membership contributions plus interest. Pre-membership rollover amounts or transferred amounts may be treated differently under the Rules, yet the Act’s payment rules still refer back to the Rules for the ultimate benefit quantum. This creates a hidden dependency that is easy to miss.
Section 8’s “taken not to have ceased” rule can produce counter-intuitive outcomes for benefit accrual. A person who leaves on Friday and re-enlists on Monday never technically exits membership; yet the Rules may still treat the two periods as separate for certain purposes. Advisers must check both the Act and the Rules.
The s.48A(1) presumption that Departmental information is correct binds CSC but not a reviewing tribunal. In practice this means CSC may lawfully pay on the basis of incorrect service dates or rank supplied by Defence, only for a later review to overturn the decision and require CSC to recover the difference. The recoverable payment machinery in s.16B then becomes relevant.
Family law practitioners frequently overlook that s.5A(1)(b) allows splitting of DFRDB interests through the MSBS Rules. A splitting order expressed to apply to “military superannuation” may therefore engage both the 1973 and 1991 Acts, with different payment mechanics.
Finally, the reporting obligation in s.16D is not discretionary. If even one recoverable payment is known to a CSC employee, a report must be published. The deferred reporting rules in s.16D(3)–(5) mean that an error discovered years later can still require retrospective disclosure, potentially attracting ministerial or parliamentary scrutiny.
How to comply
Compliance begins with accurate membership classification. Human resources staff in Defence must apply the three limbs of s.7 before enrolling anyone in the Scheme. A post-1 July 2016 enlistee without a preserved employer benefit must be directed to ADF Super; an election under the 2015 Act is irrevocable for MSBS purposes.
Payroll systems must be configured to deduct member contributions at the rate required by the Rules and to remit them to CSC on the same day as salary (s.9). Departmental contributions must be calculated and paid strictly in accordance with the Rules; any delay automatically accrues interest at CSC’s published rate (s.10(2)).
Trust Deed amendments must be checked against the consent requirements in s.5(1A). If the amendment does not relate to an employer contribution, Scheme termination, or a SIS Act s.60(1)(b)(iii) matter, CSC consent is mandatory. All amendments are disallowable under s.49.
When a member exits, the precise character of the benefit—member, employer, preserved, totally funded—must be determined before payment instructions are issued. The wrong choice will create a recoverable payment under s.16B or 16C. CSC’s statutory reports under s.16D mean that errors are visible to ministers and the public; internal audit trails should therefore record the legislative provision relied upon for every payment.
Invalidity pensioners must be monitored for reclassification events. Each reclassification from or to Class A or B triggers a mandatory payment between the Commonwealth and CSC (s.15). Failure to make the payment exposes the Commonwealth to recovery action by CSC or, conversely, creates an overpayment debt.
Family law matters require early identification of whether an interest is an MSBS interest or a DFRDB interest. Superannuation agreements or court orders should be served on CSC with a request for a s.5A splitting calculation. The Rules will then govern both the non-member spouse’s new entitlement and the reduction to the member spouse’s benefit.
Overpayment recovery policies should be documented. Where a benefit has been paid that later becomes “not payable” under the Rules, CSC must decide whether to pursue court recovery or to deduct from future benefits (s.43(3)). The same discretion exists for recoverable payments (s.16B(3)). In each case the decision should be recorded, because s.16D reporting captures both the initial error and any subsequent recovery.
Finally, all delegates under s.51 must hold a valid instrument of delegation. Because the Minister may delegate to CSC employees, Defence officers, or CSC directors, clear internal authorisations are required before any person purports to exercise a power under the Act or the Trust Deed.
Organisations that maintain an up-to-date copy of the Trust Deed, the Rules, and the current CSC determinations on interest rates and recoverable payment policies, and that conduct annual reconciliation between Departmental contribution records and CSC statements, will substantially reduce the risk of non-compliance.
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 2 The Trust Deed
Part 2—The Trust Deed
4 Deed to establish Superannuation Scheme etc.
4 Deed to establish Superannuation Scheme etc.
(1) Not later than 30 days after the commencement of this Act, the Minister must, for and on behalf of the Commonwealth, by deed:
(a) establish an occupational superannuation scheme for the benefit of persons who, on and after the commencement of Part 3, will be, under that Part, members of the scheme; and
(b) establish, and vest in the Board, a fund for the purposes of the superannuation scheme; and
(c) set out the functions and powers of the Board.
(2) The deed must be in the form set out in the Schedule.
5 Amendment of Trust Deed
5 Amendment of Trust Deed
(1) The Minister may, by legislative instrument signed by the Minister, amend the Trust Deed.
(1AA) Without limiting subsection (1), the Minister may amend the Trust Deed to:
(a) authorise CSC to:
(i) accept particular kinds of amounts in respect of particular kinds of people who are not members of the Scheme; and
(ii) deal with those amounts under the Deed; and
(b) define the functions of CSC in relation to those amounts; and
(c) include provisions in the Rules dealing with:
(i) the manner in which those amounts will be dealt with; and
(ii) the benefits that are to become payable in relation to those amounts; and
(iii) the circumstances in which entitlements to receive those benefits will arise; and
(iv) any other matter relating to those amounts or those benefits.
(1A) The Minister may not amend the Trust Deed unless:
(a) CSC has consented to the amendment; or
(b) the amendment:
(i) relates to a payment of an employer contribution that will, after the making of the amendment, be required or permitted to be made under this Act; or
(ii) relates solely to the termination of the Scheme; or
(iii) is made in circumstances covered by regulations made for the purposes of subparagraph 60(1)(b)(iii) of the Superannuation Industry (Supervision) Act 1993.
(1B) For the purposes of subparagraph (1A)(b)(i), a payment under the Trust Deed is taken to be a payment of an employer contribution.
(2) If compliance with a provision of the Trust Deed as amended under subsection (1) would have the effect that the Scheme:
(a) would not be a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; or
(b) would not comply with that Act;
that provision is invalid.
5A Amendments of Trust Deed to implement family law interest splitting
5A Amendments of Trust Deed to implement family law interest splitting
(1) Without limiting subsection 5(1), amendments under that subsection:
(a) may provide that, when a splitting agreement or splitting order is received by CSC in respect of a superannuation interest under this Act:
(i) the non‑member spouse is entitled to benefits determined in accordance with the Rules; and
(ii) the benefits of the member spouse are reduced in accordance with the Rules; and
(b) may provide that, when a splitting agreement or splitting order is received by CSC in respect of a superannuation interest under:
(i) section 52 of the Defence Act 1903; or
(ii) the Defence Force Retirement and Death Benefits Act 1973;
the non‑member spouse is entitled to benefits determined in accordance with the Rules; and
(c) may make any other provision that is related to, or consequential on, provisions referred to in paragraph (a) or (b).
(2) Subparagraph (1)(b)(ii) does not apply in a case covered by subsection 49B(2) of the Defence Force Retirement and Death Benefits Act 1973.
(3) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to amendments referred to in subsection (1) of this section.
(4) In this section:
member spouse means a member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
non‑member spouse means a non‑member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
splitting agreement means:
(a) a superannuation agreement (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975); or
(b) a flag lifting agreement (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975) that provides for a payment split (within the meaning of that Part).
splitting order means a splitting order within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
superannuation interest means a superannuation interest within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
Part 3 Members of Superannuation Scheme
Part 3—Members of Superannuation Scheme
6 Membership of Superannuation Scheme
6 Membership of Superannuation Scheme
(1) Each of the following persons is a member of the Scheme:
(a) a person who is a member of the Permanent Forces;
(b) a member of the Reserves who is rendering a period of continuous full‑time service.
(2) This section is subject to section 7.
7 Persons excluded from membership of Superannuation Scheme
7 Persons excluded from membership of Superannuation Scheme
Defence Force Retirement and Death Benefits scheme
(1) A person is not a member of the Scheme if the person is an eligible member of the Defence Force for the purposes of the DFRDB Act.
Those commencing on or after 1 July 2016
(2) A person is not a member of the Scheme if:
(a) the person does not have a preserved benefit that includes an amount of employer benefit; and
(b) on or after 1 July 2016:
(i) the person becomes a member of the Permanent Forces; or
(ii) the person, as a member of the Reserves, begins to render continuous full‑time service.
Those choosing Australian Defence Force Superannuation
(3) A person is not a member of the Scheme if the person has chosen to become an ADF Super member under section 12 of the Australian Defence Force Superannuation Act 2015 (whether or not the person is still an ADF Super member).
8 Cases where person taken not to have ceased to be a member
8 Cases where person taken not to have ceased to be a member
Where a person ceases to be a member and, immediately after so ceasing, again becomes a member, the person is taken, for the purposes of this Act, not to have ceased to be a member.
Part 4 Contributions
Part 4—Contributions
9 Contributions of members to Superannuation Scheme etc. to be deducted from salary
9 Contributions of members to Superannuation Scheme etc. to be deducted from salary
Any contribution payable by a member under the Rules may be deducted from the member’s salary and paid to CSC.
10 Contributions to Superannuation Scheme etc. by Department
10 Contributions to Superannuation Scheme etc. by Department
(1) The Department must pay to CSC, in accordance with the Rules, all contributions that under the Rules are payable by the Department in respect of a member.
(2) Where any amount payable by the Department under subsection (1) remains unpaid after the day on which payment was due, the Department is liable to pay to CSC interest on that amount at such rate as CSC determines from time to time.
Part 5 Payment of benefits
Part 5—Payment of benefits
11 Interpretation
11 Interpretation
In this Part, a reference, in relation to a person who has ceased to be a member, to a member benefit, or to the part of a member benefit, that is totally funded is a reference to a member benefit, or to that part of a member benefit that consists only of:
(a) contributions that have been paid by the person to CSC on or after the day on which the person became, or last became, a member; and
(b) the interest on those contributions.
12 Member benefits
12 Member benefits
Where a member benefit becomes payable under the Rules to a person who has ceased to be a member:
(a) if the member benefit is totally funded—the member benefit is payable to the person by CSC; or
(b) if paragraph (a) does not apply:
(i) an amount equal to the part of the member benefit that is totally funded is payable by CSC to the Commonwealth; and
(ii) the member benefit is payable to the person by the Commonwealth.
13 Employer benefits
13 Employer benefits
Where an employer benefit becomes payable under the Rules to a person who has ceased to be a member:
(a) an amount equal to the funded employer benefit in relation to the person is payable by CSC to the Commonwealth; and
(b) any benefit to which the person is entitled is payable to the person by the Commonwealth.
14 Preserved benefits
14 Preserved benefits
(1) Where:
(a) a preserved benefit, or part of a preserved benefit, applicable to a person who has ceased to be a member becomes payable; and
(b) the preserved benefit, or the part of the preserved benefit, consists only of an amount of member benefit;
then:
(c) if the preserved benefit consists only of an amount of member benefit that is totally funded—the preserved benefit, or the part of the preserved benefit, is payable to, or in respect of, the person by CSC; or
(d) if paragraph (c) does not apply:
(i) an amount equal to:
(A) if the total amount of preserved benefit is payable—the part of the member benefit that is totally funded; or
(B) if a part of a preserved benefit is payable—a corresponding part of the part of the member benefit that is totally funded;
is payable by CSC to the Commonwealth; and
(ii) the preserved benefit, or the part of the preserved benefit, is payable to, or in respect of, the person by the Commonwealth.
(2) Where:
(a) a preserved benefit applicable to a person who has ceased to be a member becomes payable; and
(b) the preserved benefit includes both an amount of member benefit and an amount of employer benefit;
then:
(c) an amount equal to the sum of:
(i) the part of the member benefit included in the preserved benefit that is totally funded; and
(ii) so much of the funded employer benefit in relation to the person as is included in the preserved benefit;
is payable by CSC to the Commonwealth; and
(d) the preserved benefit is payable to, or in respect of, the person by the Commonwealth.
15 Payment by or to the Commonwealth on reclassification of invalidity pensioner
15 Payment by or to the Commonwealth on reclassification of invalidity pensioner
(1) Where a person who is an invalidity pensioner classified as Class A or Class B is reclassified as Class C, the Commonwealth must pay to CSC an amount equal to the amount of the funded employer benefit in relation to the person at the time when the person was retired on the ground of invalidity.
(2) Where:
(a) a person who was an invalidity pensioner classified as Class A or Class B was reclassified as Class C; and
(b) the person is subsequently reclassified as Class A or Class B;
CSC must pay to the Commonwealth an amount equal to the funded employer benefit in relation to the person.
16 Payment by Commonwealth where an invalidity pensioner again becomes a member
16 Payment by Commonwealth where an invalidity pensioner again becomes a member
Where a person who is an invalidity pensioner again becomes a member, the Commonwealth must pay to CSC an amount equal to the amount of the funded employer benefit in relation to the person at the time when the person was retired on the ground of invalidity.
16A Payments relating to associate benefits
16A Payments relating to associate benefits
(1) Where an associate benefit becomes payable under the Rules, the Commonwealth must pay the benefit to such person or persons as are appropriate under the Rules.
(2) CSC must pay to the Commonwealth any amount that CSC is required under the Rules to pay to the Commonwealth in respect of an associate benefit.
16B Recoverable payments
16B Recoverable payments
(1) If, apart from this subsection, the Commonwealth does not have power, under this Act, to pay an amount (the relevant amount) to a person (the recipient) purportedly as a benefit under the Rules, then the Commonwealth may pay the relevant amount to the recipient.
Recovery
(2) If a payment is made under subsection (1) to the recipient, the relevant amount:
(a) is a debt due to the Commonwealth by the recipient; and
(b) may be recovered by CSC, on behalf of the Commonwealth, in a court of competent jurisdiction.
(3) If:
(a) a payment is made under subsection (1) to the recipient; and
(b) the recipient is receiving, or is entitled to receive, a benefit under the Rules;
then:
(c) the relevant amount; or
(d) such part of the relevant amount as the Board of CSC determines;
may, if the Board of CSC so directs, be recovered by deduction from that benefit.
16C Recoverable death payments
16C Recoverable death payments
(1) If, apart from this subsection, the Commonwealth does not have power under this Act to pay an amount (the relevant amount) in any of the following circumstances:
(a) the relevant amount is deposited to an account kept in the name of a deceased person;
(b) the relevant amount is deposited to an account kept in the names of a deceased person and another person;
(c) the relevant amount is paid by way of a cheque made out to a deceased person;
the Commonwealth may pay the relevant amount in the circumstances mentioned in paragraph (a), (b) or (c), so long as:
(d) on the last day on which changes could reasonably be made to the payment of the relevant amount, the chief executive officer (how
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