10.1 DSH Legislation

The relevant provisions of subsection 4(1) are;

Eligible person means a person who —

(a) is an Australian soldier;

...

and includes a widow, widower or dependent parent of a person specified in any of the paragraphs (a) to (g) of this definition;

Australian Soldier ... includes

...

(i)a regular serviceman;

...

Regular serviceman means a person who is a regular serviceman in accordance with section 4AAA;

Subsection 4AAA(1)  Subject to this section, a person is a regular serviceman for the purposes of this Act if —

(a) he has served on continuous full-time service as a member of the Defence Force, not being service that ended before 7 December 1972, and, during that service, has —

(i)in the case of service that commenced before 17 August 1977 - completed, whether before or after 7 December 1972, 3 years' effective full-time service as such a member; or

(ii)in the case of service that commenced on or after 17 August 1977 - completed a period of 6 years' effective full-time service as such a member, being a period at the expiration of which he continued to render full-time service as such a member otherwise than by reason only of a delay in discharging him or otherwise terminating that service, including a delay for the purpose of the treatment or observation of an illness or injury;

(b) he was engaged to serve as a member of the Defence Force for a period of continuous full-time service of —

(i)in the case of a person so engaged before 17 August 1977 — not less than 3 years; or

(ii)in the case of a person so engaged on or after 17 August 1977 — not less than 6 years,

but that service ended, on or after 7 December 1972, by reason of his death or his discharge on the ground of invalidity or physical or mental incapacity to perform duties; or

(c) he was an officer appointed for continuous full-time service in the Defence Force (other than an officer appointed before 17 August 1977 whose appointment was for a period of continuous full-time service of less than 3 years or an officer appointed on or after 17 August 1977 whose appointment was for a period of continuous full-time service of less than 6 years), but that service ended, on or after 7 December 1972, by reason of his death or the termination of his appointment on the ground of invalidity or physical or mental incapacity to perform duties;

but not if the person's first service in the Defence Force began after 14 May 1985.

Subsection 4AAA(2)  For the purposes of paragraph (a) of subsection (1) —

(a) the service of a person as an officer of the Naval Forces undergoing the course of training at the Royal Australian Naval College, and his service after completion of that course, shall be disregarded unless the officer is subsequently promoted to the rank of sub-lieutenant or a higher rank;

(b) the service of a person as a member of the Corps of Staff Cadets of the Military Forces shall be disregarded unless the person is subsequently appointed as an officer of those Forces; and

(c) the service of a person as an Air Cadet of the Air Force shall be disregarded unless the person is subsequently appointed as an officer of that Force.

Subsection 4AAA(2A)  For the purposes of paragraph (b) of subsection (1), where a person re-engages to serve as a member of the Defence Force, other than as an officer, for a period of continuous full-time service, he shall be taken to have been engaged on his enlistment to serve until the expiration of the period for which he re-engages.

Subsection 4AAA(2B)  For the purposes of paragraph (c) of subsection (1), where an officer commences a period of continuous full-time service immediately after the expiration of a previous period of such service by him, whether as an officer or otherwise, he shall be taken to have been appointed on the commencement of that previous period to serve until the expiration of the later period.

Subsection 4AAA(3)  Paragraphs (b) and (c) of subsection (1) do not apply in relation to a discharge or termination of appointment —

(a) that occurred before the person concerned had completed twelve months' effective full-time service; and

(b) the ground for which was invalidity, or physical or mental incapacity to perform duties, caused, or substantially contributed to, by a physical or mental condition that —

(i)existed at the time the person concerned commenced full-time continuous service as a member of the Defence Force; and

(ii)was not aggravated, or was not materially aggravated, by that service.

Subsection 4AAA(4)  Paragraph (c) of subsection (1) does not apply in relation to a period of service referred to in paragraph (b) of subsection (6) that was brought to an end by the death, or the termination of the appointment, of the officer concerned.

Subsection 4AAA(5)  A member of the Defence Force not on continuous full-time service who has, whether before or after the commencement of this section, commenced continuous full-time service in pursuance of a voluntary undertaking given by him and accepted by the appropriate authority of the Defence Force shall —

(a) if he was an officer on the day on which he so commenced — be deemed, for the purposes of paragraph (c) of subsection (1), to have been appointed as an officer of the Defence Force on that day for service for the period for which he was bound to serve on continuous full-time service; or

(b) if he was a member other than an officer on the day on which he so commenced — be deemed, for the purposes of paragraph (b) of subsection (1), to have been engaged to serve as a member of the Defence Force on that day for service for the period for which he was bound to serve on continuous full-time service.

First service after 14 May 1985

Subsection 4AAA(5A)  A person is a regular serviceman for the purposes of this Act if:

(a)the person is covered by paragraph (1)(b) or (c); and

(b) the person's first service in the Defence Force began after 14 May 1985; and

(c) the person's death or discharge from the Defence Force occurred before 19 December 1988; and

(d) a notice of eligibility or a certificate of entitlement has been issued to the person under this Act or regulations made under this Act.

Subsection 4AAA(5B)  If a person to whom subsection (5A) applies is dead, the person is taken to have been a regular serviceman immediately before the person's death.

NOTE: This subsection has the effect of making a widow, widower or dependent parent of the person an “ Eligible person” (see definition of eligible person in subsection 4(1)).

Subsection 4AAA(5C)  Subsections (5A) and (5B) do not apply to a person who is or has been a subsidised borrower under the Australian Defence Force Home Loan Assistance scheme.

Subsection 4AAA(6)  In this section, effective full-time service, in relation to a member of the Defence Force, means any period of continuous full-time service of the member other than —

(a) a period exceeding twenty-one consecutive days during which the member was —

(i)on leave of absence without pay;

(ii)absent without leave;

(iii) awaiting or undergoing trial on a charge in respect of an offence of which he was later convicted; or

(iv)undergoing detention or imprisonment; or

(b)in the case of an officer of the Defence Force who, on his appointment, was a student enrolled in a degree or diploma course at a university or other tertiary educational institution and was required by the appropriate authority of the Defence Force to continue his studies after his appointment — the period of his service during which, by reason of the requirement to engage in his studies or in activities connected with his studies, he was not regarded by the appropriate authority of the Defence Force as rendering effective full-time service.