Commonwealth: Defence Force Retirement and Death Benefits Act 1973 (Cth)

Defence Force Retirement and Death Benefits Act 1973 No. 81, 1973 Compilation No. 47 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Defence Force Retirement and Death Benefits Act 1973 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part I—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Retiring age for rank held 5 Continuity of service 5A Persons excluded from definition of eligible member of the Defence Force 5B Continuous full‑time Reservists whose engagements span 30 June 2016 6 Non‑effective service 6A Marital or couple relationship 6B Spouse who survives a deceased person 6BA Benefits for certain spouses in post‑retirement marital or couple relationships 6C Surcharge deduction amount 6D Application of the Criminal Code Part III—Contributions 17 Contributions by members of scheme 18 Contributions not to be paid during periods of non‑effective service 18A Contributions not to be paid after 40 years of effective service 19 Amount of fortnightly contributions 20 Amount of contributions on reduction in pay 21 Purchase of previous non‑contributory service 22 Deductions of contributions from pay Part IV—Retirement benefits 23 Entitlement to retirement pay 24 Commutation of retirement pay 25 Rate of retirement pay applicable to certain existing contributors Part V—Invalidity benefits 26 Invalidity benefit 27 Incapacity due to wilful action 28 Pre‑existing invalidity or incapacity 29 Invalidity or incapacity arising during absence without leave exceeding 60 days 30 Classification in respect of incapacity 31 Class A and Class B invalidity pay 32 Class C invalidity benefit 32A Commutation of Class C invalidity pay 33 Rate of invalidity pay applicable to certain existing contributors 34 Reclassification in respect of incapacity 35 Power of CSC to require persons to be medically examined etc. 36 Invalidity benefits payable to certain contributors under Superannuation Act or the Superannuation Act 1990 37 Chief of the Defence Force may inform CSC of grounds of retirement Part VI—Benefits on death of member of scheme Division 1—Spouse's pension 38 Spouse's pension on death of contributing member 39 Spouse's pension on death of recipient member 40 Set off against spouse's pension in certain circumstances 41 Rate of pension payable on death of member of scheme leaving more than one spouse 41A Commutation of spouse's pension Division 2—Children's pensions 42 Eligible children other than orphans 43 Eligible orphans Division 2A—Special pensions 43A Special pensions 44 Restoration of pensions for remarried widows and widowers Division 3—Miscellaneous 45 Payment of benefits otherwise than to person entitled 46 Superannuation Act and the Superannuation Act 1990 47 Death of recipient member etc. due to retirement disabilities etc. 48 Lump sum payments on or after death—members with only one period of effective service 48A Lump sum payments on or after death—members with more than one period of effective service 49 Death of contributing member after 60 days absence without leave Part VIA—Family law superannuation splitting Division 1—Preliminary 49A Definitions Division 2—Benefits for non‑member spouse 49B Associate pension for non‑member spouse if operative time in payment phase 49C Commutation of small associate pension Division 3—Reduction of benefits for member spouse 49D Operative time during growth phase—reduction of later standard pension or lump sum amount 49E Operative time during payment phase—reduction of standard pension or lump sum amount Division 4—Miscellaneous 49F Ministerial Orders Part VIB—Sustaining the superannuation contribution concession: release of benefit to meet deferred tax liability 49K Release of benefits under a release authority 49L Limit on amount that may be released 49M Priority order in relation to commutation of pension 49N Calculation of person's benefits after payment of release authority lump sum 49P Modification for candidates at parliamentary elections 49Q Modification for section 62 Part VII—Candidates at parliamentary elections 50 Interpretation 51 Election by re‑instated candidate 52 Effect of election under section 51 53 Refund of benefits by re‑instated candidates to whom this Part applies 54 Re‑instated candidates to whom Part does not apply 55 Rights of contributing members who resign to contest elections and are not re‑instated Part VIII—General provisions applicable to contributions and benefits 56 Refund of contributions 57 Election by officer on short service commission who continues to serve in respect of period of service under short service commission 59 Instalments of pension benefits 60 Prescribed basic annual rate of pay 61 Payment of refund of contributions or of lump sum payment to CSC in discharge of liability under Superannuation Act 61A Payment of refund of contributions or of lump sum payment to CSC in discharge of liability under the Superannuation Act 1990 62 Recipient member who becomes eligible member 63 Non‑recipient retired member who again becomes an eligible member within 90 days 64 Non‑recipient retired member who again becomes an eligible member after 90 days 65 Application of sections 63 and 64 to benefit under subsection 32(2) Part IX—Preservation of rights of certain members of the scheme Division 1—Preliminary 66 Interpretation 67 Variation of determinations by CSC Division 2—Contributing members who have preserved rights from previous employment 68 Transfer value payable in respect of previous employment 69 Members who pay transfer values to Commonwealth Division 3—Preservation of rights of contributing members ceasing to be eligible members of the Defence Force 70 Interpretation 71 Eligible employment 72 Public employment 73 Eligible superannuation schemes 74 Transfer value 75 Deferred benefits 76 Election that Division apply 77 Circumstances in which transfer value payable 78 Circumstances in which person entitled to deferred benefits 79 Person who is entitled to rights under this Division not entitled to other retirement benefits 80 Certain former contributing members not entitled to benefits under this Division 81 Member who resigned to contest an election 82 Provisions applicable to certain recipient members restored to health 83 Person entitled to deferred benefits again becoming a member etc. before benefits payable Division 4—Miscellaneous 84 Special provisions affecting former members of certain superannuation schemes Part X—Contributors under previous benefits scheme etc. 85 Interpretation 86 Refund of previous contributions 87 Additional contribution by certain pre‑1959 contributors 87A Additional contributions by certain persons purchasing service under section 27 of the previous Act 88 Contribution equal to deferred contributions under previous Act 89 Purchase of previous non‑contributory service 90 Elections to become contributors by certain members 91 Certain periods of previous service deemed to be periods of effective service 92 Application of Act in respect of elections under subsection 4A(3B) of previous Act 93 Election by member of scheme to whom subsection 69(1A) of previous Act applies 94 Death of contributing member after 60 days absence without leave 95 Pre‑existing invalidity or incapacity 96 Invalidity classification 97 Medical examination of member of scheme entitled to invalidity pay 98 Incapacity due to wilful action Part XA—Pension increases Division 1—Introduction 98AA Simplified outline of this Part 98A Definitions 98AB Substitutions and changes by Statistician 98AC Rounding of percentages Division 2—General provisions about pension increases 98AD Simplified outline of this Division 98B Increase in certain pensions 98C Application of increase to suspended pension benefits 98D Adjustment of increase in case of certain pension benefits 98E Date of payment of increases 98F Rate of invalidity pay payable on reclassification during a prescribed half‑year 98G Commutation of pension benefits during a prescribed half‑year Division 3—Increase for pensioners aged 55 or older 98GA Simplified outline of this Division 98GB Increase for pensioners aged 55 or older 98GC Indicative pension amount 98GD LCI percentage 98GE MTAWE result 98GF 55‑plus percentage if MTAWE result is higher Part XB—Provisions relating to certain members of the Defence Force 98H Interpretation 98J Waiving of contributions 98K Variation of pension benefits 98L Commutation of retirement pay and invalidity pay Part XI—Review of decisions by CSC Division 1—Review of decisions by CSC 99 Review of decisions of CSC Division 2—Defence Force Case Assessment Panel 100 Establishment 101 Members 102 Functions 103 Proceedings 104 Indemnification 105 Remuneration and allowances 106 Recommendations by Panel to CSC Division 3—Review of decisions by the Administrative Review Tribunal 107 Review by the Administrative Review Tribunal Part XII—Miscellaneous 124 Election relating to surcharge deduction amount 124A Determinations with respect to surcharge deduction amount 124B Recoverable payments 124C Recoverable death payments 124D Reports about recoverable payments and recoverable death payments 125 Payments by the Commonwealth 126 Recovery of amounts payable to Commonwealth 127 Recipient member etc. to inform CSC if he becomes eligible member 128 Extension of periods of elections 128A Cancellation of elections 129 Assignment of pensions 130 Attachment of benefits 130A Repayment of amounts that have been refunded to the Commonwealth 130B Trustee of Scheme for purposes of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 131 Regulations Part XIII—Transfer to MSB scheme 132 Election to remain member of scheme or to join MSB scheme 133 Election where member dies 134 Effect of election 135 Loss of entitlement to benefits etc. 136 Failure to make election 137 Certain persons liable to make repayments to Commonwealth on making of election 138 Persons precluded from transferring to MSB scheme Schedule 1—Retirement pay expressed as a percentage of annual rate of pay Schedule 2—Notional retiring age for certain officers retiring at own request or on disciplinary grounds, or entitled to deferred benefit retirement pay Schedule 3—Commutation of retirement pay and Class C invalidity pay—expectation of life factor Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history 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 This Act may be cited as the Defence Force Retirement and Death Benefits Act 1973. 2 Commencement (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, as in force before its repeal by item 44 of Schedule 1 to the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. benefit means pension benefit, and includes the following: (a) a lump sum payment under subsection 32(2) or section 48; (b) a refund of contributions under section 56; (c) a release authority lump sum paid in relation to a release authority issued to a person under Subdivision 135‑A in Schedule 1 to the Taxation Administration Act 1953. 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 has the same meaning as Commissioner has in the Superannuation Act. continuous full‑time Reservist has the meaning given by the Australian Defence Force Superannuation Act 2015. 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. CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011. date of commencement of the scheme means 1 October 1972. decision has the same meaning as in the Administrative Review Tribunal Act 2024. decision of CSC means a decision of CSC or a delegate of CSC under: (a) this Act; or (b) the Defence Forces Retirement Benefits Act 1948; or (c) any other Act that relates to retirement benefits for members of the Defence Force and modifies or affects the provisions of the Defence Forces Retirement Benefits Act 1948. Defence Force Case Assessment Panel means the Panel established under section 100. Defence Forces Retirement Benefits Board or Board means the Defence Forces Retirement Benefits Board as in existence before being abolished by section 91 of the Defence Legislation Amendment Act 1984. 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 18 years or: (i) has attained the age of 18 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 that occurred before 1 July 2016, 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 that occurred before 1 July 2016, 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. Note: For a continuous full‑time Reservist whose engagement spans 30 June 2016, see section 5B. 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 Public Governance, Performance and Accountability Act 2013. 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 5B or 57, 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, 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: (a) means a member of the scheme who is entitled to retirement pay or invalidity pay; and (b) includes a member of the scheme who, apart from the suspension of his or her invalidity pay under subsection 35(3), would be entitled to invalidity pay. release authority lump sum has the meaning given by section 49K. 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 CSC 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 CSC, under section 6C, in relation to the member. total period of effective service, in relation to a member of the scheme, means: (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. (4) Subsection (3) does not apply in relation to a person who is taken to have retired under section 5B. 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 (c) a person to whom section 63 applies. 5B Continuous full‑time Reservists whose engagements span 30 June 2016 (1) This section applies if: (a) a person is an eligible member of the Defence Force; and (b) the person commences as a continuous full‑time Reservist as a result of an engagement that is made before 1 July 2016; and (c) the period of the engagement is extended on or after that day. (2) For the purposes of this Act, the person is taken: (a) to have retired, but not at his or her own request, on the day before the day (the extension day) the period of the engagement is extended; and (b) to have commenced as a continuous full‑time Reservist on the extension day. Note: The effect of this section is that this Act applies in relation to service before the extension day, while the Australian Defence Force Superannuation Act 2015 applies in relation to service on and after the extension day. (3) For the purposes of this Act, disregard as a period of effective service the service rendered on or after the extension day of any member who is taken to have retired under this section. 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, wife, spouse 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, wife, spouse 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, wife, spouse 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, wife, spouse or partner for a continuous period of less than 3 years up to that time and CSC, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person's husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time; 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 2E 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 CSC 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 CSC'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; CSC 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, CSC 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 CSC considers relevant. (3) The amount determined by CSC 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 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. (3) If a member's hours of duty or periods of duty are determined under a flexible service determination (within the meaning of the Defence Act 1903), the fortnightly rate of pay applicable to the member is the rate of pay that would have been applicable if the member's hours of duty or periods of duty were not determined under the flexible service determination. 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 CSC within a period of 90 days after the change, or within such further period as CSC, 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 CSC 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 CSC, 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 CSC, in special circumstances, allows, there is refunded to the Commonwealth, or arrangements satisfactory to CSC 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) A contributing member is entitled, on the member's retirement, to retirement pay at the rate applicable to the member under this section if: (a) the member retires and is not entitled to invalidity benefit; and (b) on the member's retirement: (i) the member's total period of effective service is not less than 20 years; or (ii) the member's total period of effective service is not less than 15 years and the member has attained the retiring age for the rank held by the member immediately before the member's retirement. (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 the Defence Force or a person authorized in writing by the Chief of the Defence Force states in writing that he was so retired. (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 CSC 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 CSC, 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 CSC, 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 section 62 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 section 62 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 or her retirement pay or invalidity pay, as the case may be; and (b) any amount paid to the person as a result of an application, under section 74 of the previous Act, to commute a portion of any pension payable to him or her under that Act reduced by 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. Note: This amount is reduced if a release authority lump sum has been paid: see section 49M. (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 CSC or the day following the day on which the person retires, whichever is the later. (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 CSC 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 CSC 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. 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. 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 CSC, 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) CSC 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 becam