The relevant provisions of subsection 4(1) are;
Eligible person means a person who —
(a) is an Australian soldier;
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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
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(i)a regular serviceman;
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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.
In May 1973 the Defence Service Homes Act 1918 was amended to include service in the Regular Forces in peacetime as qualifying service. The new qualifications applied only to members of the Forces who served on or after 7 December 1972. It was based on the completion of a period of continuous full-time service of not less than 3 years.
The Government's decision to extend the benefits of the Scheme to members of the peacetime Forces was part of its policy to abolish conscription into the armed Forces and to fulfil its stated aim of introducing conditions of service that would attract and retain regular servicemen in peacetime. The Government regarded the measure as an essential one in establishing an all volunteer force. Due to the itinerant nature of his occupation, it is considered that a regular serviceman is at a disadvantage compared to other members of the community in acquiring a permanent home.
As many servicemen were leaving after the completion of 3 years' service, the legislation was amended, in May 1978, to extend the qualifying period to six years' continuous service plus a commitment to render further continuous service. This amendment was designed to encourage the long-term retention of skilled personnel in the Forces.
10.2.2.1Enlistment before 17 August 1977. A person who enlisted and served as a full-time member of the Defence Force before 17 August 1977, is a regular serviceman if he/she was serving on or after 7 December 1972 and has completed 3 years' effective full-time service.
10.2.2.2Enlistment on or after 17 August 1977. A person who enlisted and served as a full-time member of the Defence Force on or after 17 August 1977, is a regular serviceman if he/she has completed a period of 6 years' effective full-time service provided that, at the expiration of that period, he/she continued to render full-time service as such a member. However, if the member continued to serve because of a delay in discharging him/her or otherwise terminating that service, including a delay for the purpose of treatment or observation of an illness or injury, then the provisions of the legislation have not been met and he/she is not a regular serviceman as defined.
Means any period of continuous full-time service of a member of the Defence Force other than periods exceeding twenty-one consecutive days in one or more of the following categories:
NOTE 1: Separate periods of less than twenty-one days in two or more categories cannot be aggregated. Only continuous periods exceeding twenty-one consecutive days within a category are to be excluded from the total full-time service.
NOTE 2: A period of service which is not effective service as defined in the legislation does not break the continuity of service for the purposes of s.4AAA e.g. an applicant who enlisted before 17 August 1977 and had served a total of three years and thirty-six days but had thirty-six days non effective service during that period may still have his/her eligibility established.
NOTE 3: Where a person re-engages to serve as a member of the Defence Force for a period of continuous full-time service, he/she shall be taken to have engaged on his/her enlistment to serve until the expiration of the period for which he/she re-engages. A similar provision exists for officers.
10.2.3.1Broken Periods of Service. A member of the Forces who is discharged and subsequently re-engages, is not permitted to aggregate his/her periods of service for the purpose of qualifying if there is a break in service of one day or more. However, such a member may qualify by completing effective full-time service as required by the legislation.
NOTE: The following periods of service are not deemed to be effective full-time service unless the specified conditions are met.
10.2.3.2Appointment During Tertiary Studies. That period of service of an officer, 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 engage in his studies or activities connected with his studies. This period is not regarded as effective full-time service unless the appropriate authority of the Defence Force has determined that it is effective full-time service.
NOTE: The Department of Defence has advised that all undergraduate service of a member who enlisted after 17 August 1977 is considered to be effective service for DSH purposes, provided the member graduates.
10.2.3.3Officer Cadet Training. Service while undergoing a course of training at the Royal Australian Naval College, as a member of the Corps of Staff Cadets of the Military Forces or as an Air Cadet of the Air Force is not regarded as effective full-time service unless the person graduates as an officer or, in the case of the Navy, is promoted to at least the rank of Sub-lieutenant.
10.2.3.4Students Appointed as Officers. A person appointed as an officer of the Defence Force while a student enrolled in a degree or diploma course at a university or other tertiary educational institution shall not be regarded as a regular serviceman where his or her appointment was bought to an end by his or her death or for medical reasons before the completion of the period of effective full-time service provided in the legislation.
Qualifying service as a regular serviceman may be established in the following circumstances:
10.2.4.1First Enlistment on or before 14 May 1985. A person whose first enlistment in the Defence Force was on or before 14 May 1985 and who has completed the required period of service. It should be noted that a first enlistment on or before 14 May 1985 enables a person to complete a qualifying period of service at a later date. (Please also see Eligibility GO 10.2.5.1.)
10.2.4.2Service Ended by Death or on Medical Grounds. A person who was engaged to serve as a member of the Defence Force for the relevant period but that service ended, on or after 7 December 1972, by reason of his or her death or discharge on the ground of invalidity or physical or mental incapacity to perform duties. A similar provision exists for officers but please see the qualification Students appointed as officers. Where an applicant claims that a medical condition was a factor which lead to the premature discharge from the Forces contrary to the official reason given by Defence, further investigation and consideration is to be given to the claim and a benevolent approach to determining eligibility is to be followed after considering the following basic question.
'Is it fair to say that physical or mental incapacity for some or all military duties was the factor actuating the military discharge of the person in question?'
It is important to note that persons with 'open ended enlistments' satisfy the minimum 6 years enlistment requirement.
10.2.4.3First Enlistment after 14 May 1985 and Service Ended by Death or on Medical Grounds. A person whose first service in the Defence Force began after 14 May 1985 and who was discharged on invalidity grounds or whose service in the Defence Force ceased by reason of death before completing the minimum period of six years' service, during the period 15 May 1985 to 19 December 1988. This provision applies only to those who have been previously advised of their entitlement and to the surviving widows/widowers and dependent parents of such persons. A further limitation is that the provision will not apply to any person who is or has been a subsidised borrower under the Defence Force (Home Loans Assistance) Act 1990.
10.2.4.4Service in the Reserves. Members in the Reserve or in the Citizen Forces who commenced continuous full-time service in pursuance of a voluntary undertaking given by them and accepted by the appropriate authority of the Defence Force shall have that service constituted as service for the purpose of paragraphs 4AAA(1)(b) and 4AAA(1)(c).
10.2.4.5Transfer from National Service. A person who was a national serviceman or a national service officer and who:
NOTE: A national serviceman or a national service officer who before completing his period of national service is engaged or appointed for continuous full-time service for a period of less than three years, and whose total commitment for service, including the statutory period of national service was not less than three years but who does not complete three years' effective full-time service, does not qualify as a regular serviceman.
The following circumstances will generally exclude a person from being considered a regular serviceman:
10.2.5.1First enlistment on or before 14 May 1985 but not qualifying service. A person who first enlisted in the Defence Force on or before 14 May 1985 and who has not completed the required period of service in respect of that first or any subsequent enlistment, is not eligible for DSH assistance. If such a person subsequently completes a 'basic service period' covered by the Defence HomeOwner Scheme, eg as a Reservist, the person may apply for DHO assistance. In such cases, a statement may be prepared indicating that the DSH Act does not apply to the person. It is not intended that such persons would have entitlements under both Schemes if the person subsequently completed DSH qualifying service.
10.2.5.2Pre-existing Medical Condition. A person discharged on medical grounds where the medical condition existed when the person commenced continuous full-time service if the discharge or termination of appointment:
However, if an aggravated pre-existing condition led to the person's discharge, the degree of aggravation is to be taken to be material aggravation and the person's eligibility may be established.
10.2.5.3Misconduct or Misbehaviour. A person with otherwise appropriate service may be ineligible if that service ended due to misconduct or misbehaviour. However, this exclusion does not apply to the widow, widower or dependent parent of a person whose service ended due to misconduct or misbehaviour [please see Eligibility GO 11 for full details].
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