Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 (134 of 2008)
Schedule 3 Defence amendments
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 1973, 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.