Defence Service Homes Act 1918

Subject to this section, a person is a regular serviceman for the purposes of this Act if:

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:

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

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;

he was engaged to serve as a member of the Defence Force for a period of continuous full‑time service of:

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

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

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;

For the purposes of paragraph (a) of subsection (1):

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;

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

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.

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.

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.

Paragraphs (b) and (c) of subsection (1) do not apply in relation to a discharge or termination of appointment:

that occurred before the person concerned had completed twelve months’ effective full‑time service; and

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:

existed at the time the person concerned commenced full‑time continuous service as a member of the Defence Force; and

was not aggravated, or was not materially aggravated, by that service.

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.

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:

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

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.

A person is a regular serviceman for the purposes of this Act if:

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

the person’s first service in the Defence Force began after 14 May 1985; and

the person’s death or discharge from the Defence Force occurred before 19 December 1988; and

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

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.

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)).

Subsections (5A) and (5B) do not apply to a person who is or has been a subsidised borrower under the Home Loans Assistance Act.

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 period exceeding twenty‑one consecutive days during which the member was:

on leave of absence without pay;

absent without leave;

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

undergoing detention or imprisonment; or

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.

he was, immediately before 7 December, 1972, a national serviceman, or a national service officer, for the purposes of the National Service Act 1951‑1971 serving in the Regular Army Supplement; and

on or after that date:

he completed the period of service in that Force for which he was to be deemed to have been engaged to serve or for which he was appointed, as the case may be; or

that service ended by reason of his death or his discharge, or the termination of his appointment, on the ground of invalidity or physical or mental incapacity to perform duties.

A reference in this Act to any of the following kinds of property:

land;

a suburban holding under the Crown Lands Consolidation Act, 1913 of New South Wales, or under that Act as amended at any time, or under an Act enacted in substitution for that Act;

a unit defined in a units plan registered in accordance with a law of the Australian Capital Territory relating to unit titles;

a right of residence in a retirement village;

A reference in this Act to a dwelling‑house includes a reference to a dwelling‑house that is built in or on land, such a suburban holding or such a unit, that is held by a person as a joint tenant or tenant in common.

A reference in this Act to a purchaser or borrower includes a reference to a person who is a purchaser or borrower as a joint tenant or tenant in common.

Section 17A deals with the issue of certificates of entitlement in relation to joint tenancies and tenancies in common.

The Secretary may, in his or her discretion, treat an eligible person and the spouse or de facto partner of that eligible person together as an eligible person for the purposes of this Act, and any reference in this Act to an eligible person shall be read as including a reference to a spouse or de facto partner of that eligible person who is so treated.

The Secretary shall not apply this section in relation to any land, or land and dwelling‑house, if the land, or land and dwelling‑house, is or are owned or proposed to be owned by the eligible person and his or her spouse or de facto partner otherwise than as joint tenants.

The application of this section in relation to land or land and a dwelling‑house does not, except as provided by this section, affect the application of the other provisions of this Act in relation to the land or land and dwelling‑house.

An eligible person who:

is a member of the Defence Force:

whose first service in the Defence Force began on or before 14 May 1985; or

whose first service in the Defence Force began after that day but who is covered by paragraph (ga) of the definition of Australian Soldier in subsection 4(1); and

is not, and has not at any time been, a borrower; and

does not hold a certificate of entitlement that is in force in relation to subsidy on an initial advance;

An election must be:

in writing, signed by the person making it; and

given to the Secretary within the prescribed period.

Subject to section 4BB, an election is irrevocable and takes effect on the day on which it is given to the Secretary.

When an election takes effect, the person making it stops being an eligible person for the purposes of this Act.

The Secretary must cause a copy of each election to be given to the Secretary of the Defence Department.

In this section:

A person who has elected to surrender his or her status as an eligible person under section 4BA may revoke that election (the surrender election) if:

the person is not and has not been a subsidised borrower under the Home Loans Assistance Act; and

the person gives the Secretary a written notice stating that the person wishes to revoke his or her surrender election; and

the notice is given to the Secretary before 1 July 1992.

A person who has elected to surrender his or her status as an eligible person under section 4BA may revoke that election (the surrender election) if:

the person is not and has not been a subsidised borrower under the Home Loans Assistance Act; and

the person gives the Secretary a written notice stating that the person wishes to revoke his or her surrender election; and

the notice is given to the Secretary on or after 1 July 1992 and before 1 January 1993; and

the person satisfies the Secretary that:

the person was not aware before 1 July 1992 that the person’s surrender election was revocable; and

the person would not have made the surrender election if the person had been aware of the matters announced in the statement made by the Minister on 22 August 1991 relating to pooling of entitlements under this Act.

If a person’s surrender election is revoked by a notice under subsection (1) or (2), the revocation takes effect on the day on which the notice is given to the Secretary.

If a person revokes his or her surrender election the Secretary must cause a copy of the notice that revoked the election to be given to the Secretary of the Defence Department.

If, apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.

In this section, acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.

Except as provided by Part IIIA and section 35A, this Act does not exclude or limit the concurrent operation of the Consumer Credit Codes of the States and Territories.

Nothing in subsection 23AA(2) or section 23H is intended to make matters referred to in that subsection or section subject to the Consumer Credit Codes of the States and Territories.