Commonwealth: Military Superannuation and Benefits Act 1991 (Cth)

Military Superannuation and Benefits Act 1991 No. 135, 1991 Compilation No. 27 Compilation date: 28 September 2022 Includes amendments up to: Act No. 146, 2020 Registered: 29 September 2022 This compilation includes a commenced amendment made by Act No. 112, 2020 About this compilation This compilation This is a compilation of the Military Superannuation and Benefits Act 1991 that shows the text of the law as amended and in force on 28 September 2022 (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 Legislation 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 series page on the Legislation 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 series page on the Legislation 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 Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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 1—Preliminary 1 Short title 2 Commencement 3 Interpretation 3A Application of the Criminal Code Part 2—The Trust Deed 4 Deed to establish Superannuation Scheme etc. 5 Amendment of Trust Deed 5A Amendments of Trust Deed to implement family law interest splitting Part 3—Members of Superannuation Scheme 6 Membership of Superannuation Scheme 7 Persons excluded from membership of Superannuation Scheme 8 Cases where person taken not to have ceased to be a member Part 4—Contributions 9 Contributions of members to Superannuation Scheme etc. to be deducted from salary 10 Contributions to Superannuation Scheme etc. by Department Part 5—Payment of benefits 11 Interpretation 12 Member benefits 13 Employer benefits 14 Preserved benefits 15 Payment by or to the Commonwealth on reclassification of invalidity pensioner 16 Payment by Commonwealth where an invalidity pensioner again becomes a member 16A Payments relating to associate benefits 16B Recoverable payments 16C Recoverable death payments 16D Reports about recoverable payments and recoverable death payments 17 Appropriation Part 6—CSC 18 Functions and powers Part 9—Miscellaneous 42 Cost of administration of Act etc. 42A CSC liable to pay surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 43 Recovery of unpaid contributions etc. 44 Payment of fees 45 Assignment of benefits 46 Member etc. bound by Rules 47 Indemnification 48 Bank not liable in respect of certain payments out of account of deceased pensioner 48A CSC may rely on information supplied by the Department 49 Amendments to Trust Deed disallowable under the Legislation Act 2003 51 Delegation by Minister 51A Transitional—MSB Instrument No. 3 of 1993 to have retrospective effect 51B Transitional—recoverable payments relating to retention benefit 51C Transitional—reports about recoverable payments 52 Regulations Schedule—Form of Trust Deed Military Superannuation and Benefits Rules 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 an occupational superannuation scheme for, and the payment of other benefits to, members of the Defence Force, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Military Superannuation and Benefits Act 1991. 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 (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 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 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 (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 (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 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 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 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 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 (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 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 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 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 (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 (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 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 (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 (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 (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 (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 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 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 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 (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. (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 (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 No pension or other benefit payable under the Rules is capable of being assigned. 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 (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 (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 (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 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 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 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 (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 (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 (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. Schedule—Form of Trust Deed Section 4 THIS DEED is made on 1991 BY THE COMMONWEALTH OF AUSTRALIA (in this Deed called "the Commonwealth") WHEREAS section 4 of the Military Superannuation and Benefits Act 1991 (in this Deed called "the Act") provides that the Minister, for and on behalf of the Commonwealth, must, within 30 days after the commencement of the Act, by Deed establish an occupational superannuation scheme in order to provide benefits for members of the Defence Force. NOW THIS DEED WITNESSES as follows: Interpretation 1. (1) In this Deed, where the context requires or admits, a reference to the Deed shall include a reference to the Rules, as set out in the Schedule (in this Deed called "the Rules"), and the Rules shall form part of the Deed. In the case of an inconsistency between the provisions of the Deed and the Rules, the provisions of the Deed shall prevail. (2) In this Deed, where the context requires or admits, words and expressions defined in the Act or the Rules have the same meanings when used in the Deed. The headings in this Deed and in the Rules are for the convenience of reference only and shall not affect their interpretation. (3) In this Deed "Minister" means: (a) the Commonwealth Minister of State for Defence; (b) if 2 or more Commonwealth Ministers administer Departments which have functions in relation to the administration of matters to which the Deed relates, the Minister who administers the Department which has the function in relation to each of those matters; or (c) a member of the Executive Council acting for the time being for and on behalf of any of those Ministers. Establishment of the Superannuation Scheme and the Fund 2. (1) There is hereby established an occupational superannuation scheme to be known as the Military Superannuation and Benefits Scheme (in this Deed called "the Superannuation Scheme") to come into force on 1 October 1991 for the benefit of: (i) members of the Permanent Forces; and (ii) members of the Emergency Forces and the Reserve Forces, to be administered in accordance with the Deed by the Military Superannuation and Benefits Board of Trustees No. 1 established by the Act (in this Deed called "the Board"). (2) For the purposes of the Superannuation Scheme there is hereby established and vested in CSC a fund to be known as the Military Superannuation and Benefits Fund No. 1 (in this Deed called "the Fund"). Functions and powers of the CSC 3. (1) The functions of CSC are to administer the Superannuation Scheme and to manage and invest the Fund in accordance with the provisions of the Act and this Deed including, without limiting the generality of the foregoing, the following functions: (a) to pay benefits to or in respect of members, and to make payments to and receive payments from the Commonwealth, as provided for in the Act; (b) to provide advice to the Minister on proposed changes to the Act and the Deed; and (c) to determine interest rates for the purposes of the Superannuation Scheme. (2) CSC has power in Australia and elsewhere to do all things necessary or convenient to be done for, or in connection with, the performance of its functions and, in particular, may: (a) give guarantees; (b) underwrite or sub‑underwrite any form of investment including the underwriting or sub‑underwriting of the issue of shares, debentures or units in a unit trust; (c) borrow moneys and give security over the whole or any part of the assets of the Fund; (d) appoint agents and attorneys; (e) act as agent for other persons; (f) engage consultants and investment managers; (g) establish an Incapacity Classification Committee to determine members' incapacity classifications under the Rules; (h) establish a Reconsideration Advisory Committee or Committees to examine and report on decisions of CSC and its delegates under the Rules relating to members' entitlements to benefits; (i) take action to control or manage, or to enhance or protect, the value of, any investment made out of the Fund, or to enhance or protect, the return on any such investment. (3) In exercising its functions and powers CSC shall have regard to: (a) the interests of members and the Commonwealth; (b) any statement of the policy of the Commonwealth Government on any matter that is relevant to the performance of the functions, duties and powers of CSC furnished to CSC by the Minister with a request that CSC consider that policy; but notwithstanding anything contained in any statement of Commonwealth Government policy or the Deed, CSC shall, in exercising its functions and powers, comply with the requirements of the Occupational Superannuation Standards Act 1987 and Regulations applicable to the Fund and the Superannuation Scheme. Appointment of Trustees 4. (1) Four of the 5 Trustees constituting CSC shall be appointed by the Minister having regard to the following: (a) 2 of the Trustees shall be persons with experience in, and knowledge of, the formulation of government policy and public administration; and (b) 2 of the Trustees shall be members of the Defence Force nominated by the Chief of the Defence Force, one being an officer and the other a member, other than an officer. (2) The 5th Trustee, who will also be the Chairperson of CSC, shall be appointed by the Minister after consultation with the Minister for Finance in relation to the appointment. (3) The Chairperson and the Trustees nominated by the Chief of the Defence Force shall be appointed for such period, not exceeding 3 years, as the Minister specifies in the instrument of appointment. The Trustees referred to in subclause 4 (1) (a) shall hold office at the Minister's pleasure. (4) A Trustee shall be eligible for re‑appointment. (5) A Trustee shall hold office on such terms and conditions as are determined by the Minister. (6) The performance of the functions, or the exercise of the powers, of CSC shall not be affected by reason of there being a vacancy in the membership of CSC. (7) The Trustees shall be paid such remuneration and allowances as are determined by the Remuneration Tribunal but, if no determination of that remuneration or allowances by the Tribunal is in operation, they shall be paid such remuneration and allowances as are determined by the Minister. (8) The Minister may grant leave of absence to a Trustee on such terms and conditions as to remuneration or otherwise as the Minister determines. (9) A Trustee may resign office by writing signed by the Trustee and delivered to the Minister. Termination of Appointment 5. (1) The Minister may terminate the appointment of a Trustee for: (a) misbehaviour or physical or mental incapacity; or (b) inefficiency or incompetence. (2) If a Trustee: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the Trustee's creditors or makes an assignment of the Trustee's remuneration for their benefit; or (b) fails, without reasonable excuse, to comply with the Trustee's obligations under clause 7; or (c) is absent, except on leave granted by the Minister, from 3 consecutive meetings of CSC of which the Trustee has had notice; the Minister may terminate the appointment of the Trustee. Acting Appointments 6. (1) The Minister may appoint a person to act as Chairperson after consultation with the Minister for Finance in relation to the appointment: (a) during a vacancy in the office of Chairperson; or (b) during any period, or during all periods, when the Chairperson is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office of Chairperson. (2) The Minister may appoint a person to act as a Trustee: (a) during a vacancy in the office of a Trustee; or (b) during any period, or during all periods, when a Trustee is acting as Chairperson, is absent from Australia or is, for any reason, unable to perform the duties of that office. (3) The Minister shall only appoint a person to act as a Trustee who meets the same criteria, as set out in subclauses 4 (1) (a) or (b), as the Trustee in whose place the Trustee is to act. (4) An appointment under subclause (1) or (2) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment. (5) While a person is acting as Chairperson or as a Trustee, the person has and may exercise all the powers, and shall perform all the duties, of the Chairperson or the Trustee as the case may be. (6) The Minister may: (a) determine the terms and conditions of appointment, including remuneration and allowances of a person appointed to act in an office under subclause (1) or (2); and (b) terminate such an appointment at any time. (7) A person appointed to act in an office under subclause (1) or (2) may resign the appointment by writing signed by the person and delivered to the Minister. Disclosure of Interests 7. (1) Each Trustee shall: (a) as soon as possible after, but in any case not later than 60 days after, appointment as a Trustee; and (b) as soon as possible after, but in any case not later than 60 days after, each anniversary of the Trustee's appointment as a Trustee, present to a meeting of CSC a statement in writing setting out particulars of those interests, whether pecuniary or otherwise and whether direct or indirect, of the Trustee as at the day of appointment or as at that anniversary, as the case requires, that could reasonably be expected to conflict with the proper performance by the Trustee of the Trustee's duties as a Trustee. (2) A statement presented by a Trustee to a meeting of CSC in pursuance of subclause (1) shall be incorporated into the minutes of the meeting. (3) Where a Trustee acquires an interest, whether pecuniary or otherwise and whether direct or indirect, that could reasonably be expected to conflict with the proper performance by the Trustee of the Trustee's duties as a Trustee and a statement containing particulars of the interest has not been given to a meeting of CSC in accordance with subclause (1), the Trustee shall, as soon as possible after acquiring that interest, present to a meeting of CSC a statement in writing setting out particulars of the interest and the statement shall be incorporated in the minutes of the meeting. (4) A Trustee who has a direct or indirect pecuniary interest in a matter being considered by CSC shall, as soon as possible after the relevant facts have come to the Trustee's knowledge, disclose the nature of the Trustee's interest at a meeting of CSC. (5) A disclosure under subclause (4) shall be recorded in the minutes of the meeting of CSC and the Trustee shall not, unless CSC or the Minister otherwise determines: (a) be present during any deliberation of CSC with respect to that matter; or (b) take part in any decision of CSC with respect to that matter. (6) For the purpose of the making of a determination by CSC under subclause (5) in relation to a Trustee who has made a disclosure under subclause (4), a Trustee who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not: (a) be present during any deliberation of CSC for the purpose of making the determination; or (b) take part in the making by CSC of the determination. (7) Where a Trustee is obliged by subclause (4) to disclose the nature of an interest at a meeting of CSC, the fact that the Trustee has presented to a meeting of CSC a statement under subclause (1) or (3) that includes particulars of that interest does not relieve the Trustee of the Trustee's obligation under subclause (4). Meetings of the CSC of Trustees 8. (1) CSC shall hold such meetings as are necessary for the conduct of its affairs. (2) The Chairperson may at any time convene a meeting of CSC and shall, when so requested in writing by another Trustee, convene a meeting of CSC within 30 days of receiving such notice. (3) The Chairperson shall preside at all meetings of CSC at which the Chairperson is present. If the Chairperson is not present at a meeting of CSC, the Chairperson may nominate one of the Trustees to be Chairperson for the meeting. In the absence of such nomination, the Trustees shall elect one of the Trustees present at the meeting as a Chairperson for the meeting. (4) At a meeting of CSC 4 Trustees, or acting Trustees, shall constitute a quorum and all decisions of CSC shall require a majority of 4 votes of the Trustees, or acting Trustees, present in person and voting. (5) CSC shall keep accurate records of all meetings held by CSC. Operation of the Fund 9. (1) All contributions and other moneys paid to CSC, or as directed by CSC, shall be held in trust by CSC in the Fund. The Fund shall be managed and invested by CSC in accordance with the Act and the Deed. (2) The Fund shall comprise: (a) contributions made by members; (b) contributions made by the Commonwealth pursuant to the Act and the Deed; (c) any other moneys paid or transferred to CSC pursuant to the Act and the Deed or which become subject to the trusts of the Deed; (d) the income arising from investments; and (e) any accretions to or profits on realisation of investments. (3) The Fund shall be used by CSC to pay benefits to or in respect of members, to make payments to the Commonwealth in respect of members' benefits as provided for in the Act and to pay the costs and expenses of the management and investment of the Fund. Investment of the Fund 10. (1) For the purposes of this clause: (a) "invest" means expend moneys with a view to obtaining a present or future financial return (whether by way of income, profit or otherwise); and (b) "profit" includes capital profit. (2) Moneys standing to the credit of the Fund which CSC, after consultation with its investment manager, is of the opinion are moneys that are not for the time being required for the purpose of making payments out of the Fund under the Act and the Deed shall, so far as is practicable, be invested by CSC in accordance with the Act and the Deed, but CSC shall so manage the Fund that moneys that are from time to time required to pay benefits that are payable out of the Fund are available for that purpose. (3) Moneys that, by virtue of subclause (2), are required to be invested by CSC may be invested in any manner and, without limiting the generality of the foregoing, may be invested by CSC jointly with another person or other persons. (4) CSC must determine an investment strategy and policy as soon as possible after 1 October 1991 and thereafter regularly review such a strategy and policy, and, where it considers necessary or desirable, change its existing investment strategy or policy. In determining and reviewing its investment strategy and policy, CSC shall consult with such persons or bodies as it thinks fit. (5) CSC shall invest moneys standing to the credit of the Fund that are available for investment only through an investment manager or managers who undertake to invest, and manage the investment of, those funds on behalf of CSC. (6) CSC shall ensure that any investment manager: (a) operates within the investment powers of CSC and the investment strategy and policy as determined for the time being by CSC; and (b) reports to CSC on the state of the Board's investments and the investment market at such times and in such manner as CSC determines. Requests by Minister for Information 11. CSC shall furnish to the Minister such information relating to the general administration and operation of the Superannuation Scheme and the Fund as the Minister may from time to time require. Delegation by the CSC 12. CSC may by an instrument under its seal delegate all or any of its powers under the Deed to any person, including the Commissioner for Superannuation or a Trustee, other than its powers under Part 9 of the Rules and this power of delegation. Military Superannuation and Benefits Rules Table of Provisions Part 1—Preliminary Rule 1. Citation 2. Definitions and Interpretation Part 2—Contributions 3. Contributions by members 4. Amount of contributions 5. Cessation of contributions on reaching maximum benefit limit 6. Contributions while on leave without pay in connection with birth of child etc. 7. Contributions while on other leave without pay 8. General conditions applicable to contributions under rules 6 and 7 9. Member contributions to be paid to Board 10. Liability of Department to pay employer contributions 11. Payment of contributions into Fund Part 3—Members' Benefits Division 1—Benefits other than Invalidity Benefits 12. Benefits on retirement before reaching 55 years of age or earlier retiring age, otherwise than for redundancy or retrenchment etc. 13. Benefits on retirement for redundancy or retrenchment or on attaining retiring age of less than 55 years 14. Benefits on retirement on or after attaining age of 55 years 15. Payment of benefits where rule 12 applies and person has less than 12 months' eligible service 16. Limitation on certain benefits in case of certain transferees who retire before completing 731 days' service after 30 September 1991 Division 2—Invalidity Benefits Subdivision A—Incapacity Classification 17. Establishment of Incapacity Classification Committee 18. Membership of Committee 19. Functions of Committee 20. Proceedings of Committee 21. Decisions by Committee 22. Classification in respect of incapacity 23. Reclassification in respect of incapacity 24. Decision as to classification or reclassification to be notified to invalidity retiree 25. Power of Board to require persons to be medically examined etc. Subdivision B—Invalidity Benefits 26. Entitlement to invalidity benefits 27. Invalidity benefits for person classified as Class A 28. Invalidity benefits for person classified as Class B 29. Effect of change of invalidity classification on pension and preserved benefit 30. Person may be treated as having been retired on ground of invalidity Subdivision C—Invalidity Benefits Not Payable 31. Person classified as Class C 32. Pre‑existing condition 33. Invalidity due to intentional act 34. Invalidity arising during absence without leave exceeding 21 days Division 3—Person Rejoining the Scheme 35. Suspension of pension of retirement pensioner other than invalidity retiree 36. Cancellation of pension etc. of invalidity retiree 37. Continuation of previous election to cease paying contributions Part 4—Spouses' and Children's Benefits Division 1—Death of Member 38. Applicability of benefits 39. Payment of deceased member's member benefit 40. Payment of deceased member's employer benefit Division 2—Death of Retirement Pensioner 41. Applicability of benefits 42. Pensions payable 43. Final benefit payable in relation to deceased retirement pensioner 44. Death in certain cases due to retirement disabilities 45. Effect of death of invalidity pensioner while pension suspended Division 3—Death of Spouse 46. Child's benefit upon death of spouse Division 4—Miscellaneous 47. Entitlements where two spouses 48. Payment of balance of benefit where pension becomes payable to child in certain cases Part 5—Payment of Preserved Benefits 49. Drawing on member benefit included in preserved benefit 50. Fee for payment of part of person's member benefit 51. Payment of employer benefit included in preserved benefit before person attains age of 55 years 52. Payment of employer benefit included in preserved benefit to person who has attained 55 years of age from Defence Force 53. Compulsory payment of preserved benefit to person on attaining 65 years of age 54. Payment of deceased former member's preserved benefit Part 6—Increases in Maximum Benefit Limits, Pensions and Certain Unfunded Preserved Benefits Division 1—Increases in Maximum Benefit Limits 55. Increases in maximum benefit limits Division 2—Increases in Pensions and Certain Unfunded Preserved Benefits 56. Increases in pensions and certain unfunded preserved benefits 57. Application of increase to suspended pension 58. Proportionate increase for part of a year 59. Adjustment in connection with invalidity reclassification 60. Date of effect of increase 61. Interpretation Part 7—Candidates at Parliamentary Elections 62. Re‑instated member 63. Death or physical or mental incapacity of person Part 8—General Provisions Applicable to Contributions and Benefits 64. Provisions applicable to elections under the Rules 65. Rate of pension where lump sum converted into pension 66. Benefits in unusual or exceptional circumstances 67. Instalments of pensions 68. Set off against pension in certain cases 69. Interest payable where payment of benefit delayed 70. Payment of benefit otherwise than to person entitled 71. Withholding payment of benefit where required information not provided Part 9—Reconsideration of Decisions 72. Establishment of Reconsideration Advisory Committees 73. Membership of Committee 74. Functions of Committee 75. Proceedings of Committee 76. Reconsideration of decision made by delegate 77. Reconsideration of decision made by Board 78. Content of statements of reasons for decision 79. Interpretation SCHEDULE 1 GLOSSARY SCHEDULE 2 PRESCRIBED PERIODS FOR THE PURPOSES OF RULE 4 SCHEDULE 3 CALCULATION OF MAXIMUM BENEFIT LIMITS SCHEDULE 4 PERCENTAGE OF EMPLOYER BENEFIT OR DECEASED PENSIONER'S PENSION APPLICABLE TO SPOUSE OR ELIGIBLE CHILD SCHEDULE 5 CALCULATION OF RATE OF PENSION BY CONVERSION OF EMPLOYER BENEFIT SCHEDULE 6 CALCULATION OF ELIGIBLE SERVICE SCHEDULE 7 CALCULATION OF FINAL AVERAGE SALARY SCHEDULE 8 CALCULATION OF EMPLOYER BENEFIT SCHEDULE 9 CALCULATION OF MEMBER BENEFIT SCHEDULE 10 TRANSFER VALUE SCHEDULE 11 RATES OF INTEREST APPLICABLE IN RESPECT OF CERTAIN UNFUNDED AMOUNTS Military Superannuation and Benefits Rules Part 1—Preliminary Citation 1. These Rules may be cited as the Military Superannuation and Benefits Rules. Definitions and interpretation 2. (1) The following expressions are defined or interpreted, for the purposes of these Rules, in the Glossary in Schedule 1. Unless otherwise stated, the expressions are in Part 1 of the Schedule. Actuary Board calendar month child classification Committee contribution Department eligible child eligible service Emergency Forces employer benefit final average salary financial year foreign service member Fund funded employer benefit higher duties allowance invalidity invalidity pension invalidity pensioner invalidity retiree lump sum maximum benefit limit MBL member member member benefit membership month Parliamentary Candidates Act pension pension maximum benefit limit Permanent Forces prescribed fee prescribed year previous contributions previous legislation relevant percentage relevant period relevant provision Reserve Forces resign to contest an election (see Part 2) retirement (see Part 3) retirement pensioner retiring age (see Part 4) salary Scheme service service allowance service offence spouse (see Part 5) spouse's pension Statistician total benefit transferred person transfer value unfunded preserved benefit 1948 Act 1973 Act 1973 Scheme 1973 Scheme recipient member 1973 Scheme re‑entrant 1973 Scheme retirement pensioner 1991 Scheme 1991 Scheme re‑entrant (2) Interpretations of the following matters, for the purposes of these Rules, are provided in Parts 6 to 9 of Schedule 1: Part 6 Parts of speech and grammatical forms Part 7 Number Part 8 Reckoning of time Part 9 Attainment of particular age. Part 2—Contributions Contributions by members 3. (1) A member is required to pay a contribution each fortnight in accordance with this Division. (2) Where contributions by a member fall due during a period when he or she is on leave without pay, the member, or a person acting on his or her behalf, is to pay those contributions: (a) each fortnight; or (b) in such instalments and at such times as CSC approves; or (c) with the approval of CSC, in a lump sum. Amount of contributions 4. (1) Subject to subrule (2), the amount of the contribution payable by a member in a fortnight is an amount equal to the relevant percentage of the amount of the salary paid to the member in that fortnight. (2) Where a member elects under subrule (10) to vary the amount of the contribution payable by him or her, that election has effect in relation to the first salary fortnight in relation to which it can be applied in the ordinary course of business. (3) Where a member makes an election under subrule (10), the member is not entitled to make a further election until the expiration of a period of three months after the day on which the earlier election was made. (4) For the purposes of subrule (1), salary is taken not to be paid to a member in respect of a day included in a period that, in accordance with Schedule 2, is a prescribed period. (5) Where: (a) the salary and allowances of a member in respect of a period are forfeited, in whole or in part, under regulations made under the Defence Act 1903; and (b) the period does not exceed 21 consecutive days; the amounts of the contributions payable by the member in respect of that period are to be calculated as if the member were on full pay. (6) Subject to subrule (7), where a member who is granted: (a) long service leave on half pay; or (b) leave without pay for a period not exceeding 21 days; the amounts of the contributions payable by the member in respect of that period are to be calculated as if the member were on full pay. (7) In a case to which paragraph (6) (b) applies, the member's salary for the purpose of calculating the contribution payable by the member is taken not to include higher duties allowance unless: (a) higher duties allowance was payable to the member on the day immediately preceding the commencement of the period; and (b) an appropriate authority of the Defence Force has notified CSC that, but for the member's absence on leave without pay, higher duties allowance would have been payable to the member in respect of the whole of the period of his or her absence on that leave. (8) In calculating the amount of a contribution payable by a member, the calculation is to be made as if no deductions were made from the member's salary. (9) Where the amount of a contribution payable by a member includes a fraction of a cent: (a) if the fraction is less than one‑half of a cent—the contribution is taken to be reduced by the amount of the fraction; or (b) if the fraction is one‑half of a cent or more—the contribution is taken to be increased by treating the fraction as one cent. (10) In this rule: "relevant percentage", in relation to a member, means: (a) the percentage, being a whole number that is not less than 5 and not more than 10, elected by the member; or (b) if the member has not made an election—5 per centum. Cessation of contributions on reaching maximum benefit limit 5. (1) A member is not entitled to pay contributions after he or she has been notified that his or her total benefit equals or exceeds his or her pension maximum benefit limit. (2) At any time after a member is notified that his or her total benefit equals or exceeds his or her lump sum maximum benefit limit, he or she may elect to cease paying contributions. (3) This rule applies in spite of anything in this Part. Contributions while on leave without pay in connection with birth of child etc. 6. A member who is on leave without pay for a period exceeding 21 days which was granted to him or her in connection with: (a) the birth of a child of the member; or (b) other termination of the pregnancy of the member; or (c) the adoption of a child by the member; may elect to pay contributions, calculated as if the member were on full pay, in respect of so much of that period, not exceeding 9 months, as is specified in the election. Contributions while on other leave without pay 7. (1) This rule does not apply to a period of leave without pay to which rule 6 applies. (2) Where a member who is on leave without pay for a period exceeding 21 days which was granted to him or her: (a) for the purpose of the member: (i) engaging, with the approval of the appropriate authority of the Defence Force, in full time employment; or (ii) undertaking further education; or (iii) undergoing training; or (iv) engaging in some other activity; and, in the case of subparagraph (ii), (iii) or (iv), an appropriate authority of the Defence Force has notified CSC that the education, training or other activity is relevant to the requirements of the Defence Force; or (b) because the member was for the time being physically or mentally incapable of performing his or her duties; the member may, with the approval of CSC, elect to pay contributions, calculated as if the member were on full pay, in respect of so much of the period as is specified in the election. (3) Where: (a) leave without pay is granted to a member (in this subrule called the "inactive member") whose spouse (in this subrule called the "active member"): (i) is also a member; or (ii) is an eligible member of the Defence Force within the meaning of the 1973 Act; and (b) the active member is posted to a locality to which the inactive member is unable to obtain a posting; and (c) the inactive member is granted the leave without pay in order not to be separated from the active member; the inactive member may elect to pay contributions, calculated as if the member were on full pay, in respect of so much of that period, not exceeding 2 years, as is specified in the election. (4) In this rule: "spouse", in relation to a member, means a person who is legally married to the member and includes a person who, although not legally married to the member, ordinarily lives with the member as his or her husband or wife, as the case may be, on a permanent and bona fide