Defence Force (Home Loans Assistance) Act 1990

Part 1 of this Act and Schedule 1 commence on the day on which this Act receives the Royal Assent.

Subject to subsection (3), the remaining provisions of this Act (including Schedule 2) commence on a day or days to be fixed by Proclamation.

If a provision referred to in subsection (2) does not commence under that subsection before 15 May 1991, it commences on that day.

A person is an operational service member for the purposes of this Act if:

the person is a member; and

the person is a non‑DSH member; and

the person is allotted for duty anywhere within the Middle‑East operational area; and

the duty includes duty sometime during the period that starts on 2 August 1990 and ends on 9 June 1991.

An allotment for duty:

may be taken into account for the purposes of subsection (1) even though it takes effect retrospectively; and

may be taken into account for the purposes of subsection (1) whether it occurs before or after the commencing day; and

will not be taken into account for the purposes of subsection (1) unless it is made by written instrument signed by the Vice Chief of the Defence Force.

A person is also an operational service member for the purposes of this Act if:

the person is a member; and

the person is a non‑DSH member because of an election under section 4BA of the DSH Act; and

the person is an Australian Soldier for the purposes of the DSH Act because of paragraph (a), (b), (c), (g) or (ga) of the definition of Australian Soldier in subsection 4(1) of the DSH Act.

for paragraph (3)(b) see paragraph (b) of the definition of non‑DSH member in section 3 of this Act.

the people referred to in paragraph (3)(c) served in operational areas in military conflicts before the Gulf conflict.

A warlike service member is a member who:

is a non‑DSH member; and

has been allotted for duty declared under subsection 3C(1) to be warlike service; and

has performed some or all of that duty.

An allotment for duty:

may be taken into account for the purposes of subsection (1) even though it takes effect retrospectively; and

may be taken into account for those purposes whether it occurs before or after the commencement of this section; and

will not be taken into account for those purposes unless it is made by written instrument signed by the Vice Chief of the Defence Force.

The Minister may, by legislative instrument, declare duty to be warlike service for the purposes of this Act.

A declaration under subsection (1):

must be in writing; and

may take effect retrospectively; and

may relate to duty even if it was performed before the commencement of this section.

The Minister may, by legislative instrument, revoke or vary a declaration under subsection (1).

An instrument under subsection (3) may take effect retrospectively, except in so far as it results in duty ceasing to be warlike service for the purposes of this Act.

An eligible person who is not a member stops being an eligible person:

if he or she is not an incapacitated person referred to in paragraph (b) of the definition of incapacitated person in section 3—at the end of 2 years after the day on which his or her resignation, retirement or discharge from the Defence Force took effect; or

if he or she is such an incapacitated person—on 1 December 1994.

However, the Secretary may determine in writing that a person covered by paragraph (1)(a) continues to be an eligible person for a specified period beyond the period of 2 years mentioned in that paragraph, if:

the person is an incapacitated person; and

the person satisfies the Secretary that the compensable disability that caused the person’s discharge also caused, or contributed to, the person’s failure to apply for an entitlement certificate within that 2 year period.

An application for a determination under subsection (1A) must be in writing.

Subsection (1) does not apply to a person who has been an operational service member under subsection 3A(1).

For the purposes of paragraphs 15(1)(b) and 20(2)(d), a person who is a part owner of a house is taken to own the house if:

the person owns an interest in the house that is more than a half interest; or

the person owns, together with his or her spouse, de facto partner or child or children, an interest in the house that is more than a half interest; or

the person owns an interest in the house that, when added to any other interest in the house owned separately by the person’s spouse, de facto partner or child or children, is more than a half interest.

In this section:

the person’s spouse or de facto partner; and

a child of the person or of the person’s spouse or de facto partner; and

a parent of the person, or of the person’s spouse or de facto partner, who is ordinarily dependent on the person.

Without otherwise limiting the meaning of continuous full‑time service as defined in section 3, a period of full‑time service by a member in the Defence Force is taken to be broken, for the purposes of this Act, if:

the member is absent on leave without pay (other than prescribed leave) for longer than 12 consecutive months; or

in connection with a transfer of the member between 2 arms of the Defence Force, the member stops serving in one such arm and there is a delay of more than 21 consecutive days before the member starts serving in the other.

Paragraph (1)(b) does not apply if the delay was caused by the processing of the transfer by the relevant authorities in the Defence Force and was beyond the member's control.

A period of full‑time service by a member of the Defence Force is not taken to have been broken by a period described in paragraph (a) or (b) of the definition of effective full‑time service in section 3.

If a deceased person has more than one surviving spouse or de facto partner, the surviving spouse or de facto partner who was living with the person immediately before his or her death is taken, for the purposes of Division 1 of Part 2 and paragraph 29(h), to be the person’s sole surviving spouse or de facto partner.

For the purposes of subsection (1), the person is taken to have been living with a spouse or de facto partner immediately before the death of the person if they were not living together at that time only because of:

a temporary absence from each other; or

illness or infirmity of either or both of them.

A person may apply to the Secretary for an entitlement certificate.

An application must be in writing, in the approved form and must be made in accordance with the agreement.

An application by a person who is not an eligible person but who is the surviving spouse or de facto partner of a deceased eligible person must be made within 2 years after:

if the eligible person was not a member—his or her resignation, retirement or discharge from the Defence Force took effect; or

in any other case—the death of the eligible person.

Subsection (3) does not apply if the deceased eligible person was, or had been, an operational service member under subsection 3A(1).