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Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008

Schedule 3 Defence amendments

   

Defence Force Retirement and Death Benefits Act 1973

1  Subsection 3(1) (subparagraph (a)(ii) of the definition of child )

Omit “and”, substitute “or”.

2  Subsection 3(1) (after subparagraph (a)(ii) of the definition of child )

Insert:

                            (iii)  if, at any time, the member had a partner (whether the persons are the same sex or different sexes)—is a child who is the product of the member’s relationship with that partner; and

3  Subsection 3(1) (at the end of the definition of child )

Add:

             ; and (c)  a person who:

                              (i)  if, at any time, a spouse who survives the member had a partner (whether the spouse and the partner are the same sex or different sexes)—is a child who is the product of the spouse’s relationship with that partner; and

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

Note:          Subsection 3(6) is relevant to working out if a child is the product of the relationship for the purposes of subparagraphs (a)(iii) and (c)(i).

4  Subsection 3(1)

Insert:

couple relationship has the meaning given by section 6A.

5  Subsection 3(1) (definition of eligible orphan )

After “pension”, insert “or spouse pension”.

6  Subsection 3(1)

Insert:

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).

7  Subsection 3(1) (definition of pension benefit )

After “widow’s pension”, insert “, spouse pension”.

8  Subsection 3(1)

Insert:

spouse has a meaning affected by section 6B.

9  At the end of section 3

Add:

             (6)  A child cannot be the product of the relationship between two persons (whether the persons are the same sex or different sexes) for the purposes of this Act unless the child is the biological child of at least one of the persons or is born to a woman in the relationship.

10  Subsection 6A(1)

Omit “ marital relationship ”, substitute “ couple relationship ”.

Note:       The heading to section 6A is replaced by the heading “ Couple relationship ”.

11  Subsection 6A(1)

Omit “husband or wife”, substitute “partner”.

12  Subsection 6A(2)

Omit “husband or wife” (wherever occurring), substitute “partner”.

13  Subsection 6A(3)

Omit “marital relationship”, substitute “couple relationship”.

14  After paragraph 6A(4)(b)

Insert:

                   (ba)  the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of paragraph 4AB(4)(ba) of the Judges’ Pensions Act 1968 , as a kind of relationship prescribed for the purposes of that paragraph;

15  At the end of paragraph 6A(4)(c)

Add:

                     ; or (iii)  the product of the relationship between the persons;

Note:       Subsection 3(6) is relevant to working out if a child is the product of the relationship for the purposes of subparagraph (iii).

16  Subsections 6B(2) and (3)

Omit “marital relationship” (wherever occurring), substitute “couple relationship”.

17  Paragraph 6BA(1)(b)

Omit “marital relationship”, substitute “couple relationship”.

Note:       The heading to section 6BA is altered by omitting “ marriages ” and substituting “ couple relationships ”.

18  Subsection 49D(1) (note)

After “widow’s pension” (wherever occurring), insert “or spouse pension”.

19  Subsection 75(5)

Omit “widow’s pension”, substitute “spouse pension”.

20  Paragraphs 98B(4)(ab), (ac) and (c)

Omit “widow”, substitute “spouse”.

21  Paragraphs 98D(1)(a), (b) and (c)

Omit “widow” (wherever occurring), substitute “spouse”.

22  Paragraphs 98D(2)(a) and (b), (3)(b) and (4)(b)

Omit “widow”, substitute “spouse”.

23  Subparagraph 98J(3)(b)(ii)

Omit “widow’s pension”, substitute “spouse pension”.

24  Application of amendments of the Defence Force Retirement and Death Benefits Act 1973

The amendments of the Defence Force Retirement and Death Benefits Act 1973 made by this Schedule apply in relation to a benefit payable under that Act in respect of a person who dies on or after the commencement of this Schedule, if, at the time of his or her death, the deceased person was:

                     (a)  a contributing member (within the meaning of that Act); or

                     (b)  a recipient member (within the meaning of that Act); or

                     (c)  a person in respect of whom deferred benefits were applicable under section 78 of that Act.

Defence Forces Retirement Benefits Act 1948

25  After section 64

Insert:

64AA   Special grant of pension where spouse pension would be payable

             (1)  If, at any time after the day on which Schedule 3 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced (the start day ):

                     (a)  a pension is not payable to a person under section 57 or 64 of this Act; and

                     (b)  a pension benefit:

                              (i)  is not payable to the person under Division 1 of Part VI of the Defence Force Retirement and Death Benefits Act 1973 , as in force on the start day; but

                             (ii)  would have been payable to the person under that Division if a deceased pensioner had been, at the time of his or her death, a recipient member under that Act;

the Authority may grant, from a specified date, a pension to the person at a rate and on conditions that the Authority determines in writing, having regard to any matters prescribed and any other matters it considers relevant.

             (2)  The Authority must not grant a pension to the person unless the Authority, having regard to any matters prescribed and any other matters it considers relevant, is satisfied that:

                     (a)  the person is in necessitous circumstances; or

                     (b)  the grant of the pension is otherwise warranted.

             (3)  The specified date from which the pension is granted:

                     (a)  must not be earlier than the start day; and

                     (b)  unless the Authority is satisfied that special circumstances exist that justify an earlier date being specified, must not be earlier than the date the grant is made.

             (4)  The rate of the pension must not exceed the rate at which pension would have been payable under this Act to the person from the specified date had the person been, at the date of death of the deceased pensioner, the widow of the deceased pensioner for the purposes of this Act.

             (5)  If:

                     (a)  a pension is paid to a person under section 57 of this Act as a widow of a pensioner; and

                     (b)  the Authority grants a pension under this section to another person in respect of the pensioner;

then, for the purpose of calculating the rate of pension payable to the other person under this section, this Act has effect as if the reference in paragraph 57(1)(a) to five-eighths were a reference to three-eighths.

             (6)  A determination made under subsection (1) is not a legislative instrument.

             (7)  The grant of a pension to a person under this section does not affect any other person’s entitlement to a pension, or the rate of that pension, under another section of this Act.

64AB   Special grant of pension where child’s pension would be payable to eligible child

             (1)  If, at any time after the day on which Schedule 3 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced (the start day ):

                     (a)  a pension is not payable in respect of a person under section 55, 57 or 64 of this Act; and

                     (b)  a pension benefit:

                              (i)  is not payable to the person under section 42 of the Defence Force Retirement and Death Benefits Act 1 973 , as in force on the start day; but

                             (ii)  would have been payable to the person under that section if a deceased pensioner had been, at the time of his or her death, a recipient member under that Act;

the Authority may grant, from a specified date, a pension to the person at a rate and on conditions that the Authority determines in writing, having regard to any matters prescribed and any other matters it considers relevant.

             (2)  The specified date from which the pension is granted:

                     (a)  must not be earlier than the start day; and

                     (b)  unless the Authority is satisfied that special circumstances exist that justify an earlier date being specified, must not be earlier than the date the grant is made.

             (3)  The rate of the pension must not exceed the rate at which pension would have been payable under this Act to the person from the specified date had the person been, at the date of death of the deceased pensioner and at all times after that:

                     (a)  the child of the deceased pensioner for the purposes of this Act; and

                     (b)  an eligible child for the purposes of this Act.

             (4)  A determination made under subsection (1) is not a legislative instrument.

             (5)  The grant of a pension to a person under this section does not affect any other person’s entitlement to a pension, or the rate of that pension, under another section of this Act.

64AC   Special grant of pension where child’s pension would be payable to eligible orphan

             (1)  If, at any time after the day on which Schedule 3 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced (the start day ):

                     (a)  a pension is not payable in respect of a person under section 55, 57, 58 or 64 of this Act; and

                     (b)  a pension benefit:

                              (i)  is not payable to the person under section 43 of the Defence Force Retirement and Death Benefits Act 1973 , as in force on the start day (the amended Act ); but

                             (ii)  would have been payable to the person under that section if a deceased pensioner had been, at the time of his or her death, a recipient member under that Act;

the Authority may grant, from a specified date, a pension to the person at a rate and on conditions that the Authority determines in writing, having regard to any matters prescribed and any other matters it considers relevant.

             (2)  The specified date from which the pension is granted:

                     (a)  must not be earlier than the start day; and

                     (b)  unless the Authority is satisfied that special circumstances exist that justify an earlier date being specified, must not be earlier than the date the grant is made.

             (3)  The rate of the pension must not exceed the rate at which pension would have been payable under this Act to the person from the specified date:

                     (a)  had the person been, at the date of death of the deceased pensioner and at all times after that:

                              (i)  the child of the deceased pensioner for the purposes of this Act; and

                             (ii)  an eligible child for the purposes of this Act; and

                     (b)  had the person become entitled to a pension under subsection 55(2), 57(4) or 58(1) of this Act at the time when he or she would have first become entitled, in the circumstances set out in subsection (1), to pension benefit under section 43 of the amended Act.

             (4)  A determination made under subsection (1) is not a legislative instrument.

             (5)  The grant of a pension to a person under this section does not affect any other person’s entitlement to a pension, or the rate of that pension, under another section of this Act.

26  Application of amendment of the Defence Forces Retirement Benefits Act 1948

The amendment of the Defence Forces Retirement Benefits Act 1948 made by this Schedule applies in relation to a pension or benefit payable under that Act in respect of a person who dies on or after the commencement of this Schedule, if, at the time of his or her death, the deceased person was:

                     (a)  receiving a pension under section 38, 39 or 41 of that Act; or

                     (b)  receiving a benefit under subsection 51(1) of that Act.