Commonwealth Consolidated Acts

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS ACT 1973 - SECT 34

             (1)  The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.

       (1AA)  If, at a time when the Authority is reviewing, but has not yet determined, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a recipient member, the recipient member dies:

                     (a)  the Authority must determine what was, immediately before the member's death, his or her percentage of incapacity in relation to civil employment; and

                     (b)  where the Authority is satisfied, having regard to that percentage of incapacity, that, if the member had not died, the member would be reclassified and given a classification higher than that of the member at the time of his or her death, the Authority must reclassify the member under subsection (1) according to that percentage of incapacity, as if the member had not died.

          (1A)  In determining:

                    (aa)  what is the percentage of incapacity in relation to civil employment of a recipient member; or

                  (aab)  what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a recipient member who has died;

the Authority shall have regard to the following matters only:

                     (a)  the vocational, trade and professional skills, qualifications and experience of the recipient member;

                     (b)  the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

                     (c)  the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);

                     (d)  such other matters (if any) as are prescribed for the purposes of this subsection.

          (1B)  In subsection (1A), prescribed physical or mental impairment , in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:

                     (a)  a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or

                     (b)  any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).

             (2)  Where a recipient member is reclassified under this section, the Authority shall specify the date from which the reclassification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly.

          (2A)  Where a deceased member is reclassified under this section:

                     (a)  the Authority must specify the day from which the reclassification has effect; and

                     (b)  the member is taken, for the purposes of this Part, to have been classified under section 30 accordingly on and after that day.

             (3)  Where the Authority reclassifies a recipient member (other than a member to whom section 37 applies) under this section, the date specified by the Authority as the date from which the reclassification has effect shall not be a date earlier than the date on which the Authority reclassifies the member unless:

                     (a)  the member is reclassified as Class A or, having been classified as Class C, is reclassified as Class B; and

                     (b)  the Authority is satisfied that special circumstances exist that justify an earlier date being so specified.

             (4)  If, upon the reclassification of a recipient member as Class C, he would, but for this subsection, be entitled to benefit in accordance with subsection 32(2), he is entitled to that benefit only to the extent that the amount of that benefit exceeds the sum of the payments of invalidity pay received by him.

             (5)  In this section, recipient member means a member of the scheme who is entitled to invalidity pay and includes a member of the scheme who:

                     (a)  is classified as Class C by reason of having been reclassified (whether before or after the commencement of this subsection) under subsection (1); and

                     (b)  is not, after being so reclassified, entitled to invalidity pay;

but does not include a member of the scheme who is retired after the commencement of this subsection and, on his retirement, is classified as Class C under section 30.