Allan Grant and Repatriation Commission
[2013] AATA 200
[2013] AATA 200
Division VETERANS' APPEALS DIVISION File Number
2012/2481
Re
Allan Grant
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Brigadier A G Warner, MemberDate 8 April 2013 Place Perth The decision under review is affirmed.
..........................[sgd]..............................................
S D Hotop, Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – eligibility to claim disability pension – applicant served in Royal Australian Air Force from March 1948 to April 1958 – applicant not a "veteran" – applicant did not render "British nuclear test defence service" – applicant not a "member of the Forces" – decision under review affirmed
LEGISLATION
Defence Act 1903 (Cth), s 30
Veterans' Entitlements Act 1986 (Cth), s 5C(1), s 68(1) and s 69B
REASONS FOR DECISION
Deputy President S D Hotop
Brigadier A G Warner, Member8 April 2013
Introduction
Allan John Grant (“the applicant”), who was born in July 1929, served in the Royal Australian Air Force (“RAAF”) from 22 March 1948 to 11 April 1958.
On 5 August 2010 the applicant lodged with the Department of Veterans’ Affairs a claim for disability pension under the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) in respect of disabilities, diagnosed as benign parotid tumour, basal cell carcinomas, and erectile dysfunction, which he claimed had been caused, or contributed to, by “exposure to atomic radiation”.
On 3 August 2011 a delegate of the Repatriation Commission (“the respondent”) decided that the applicant was “not entitled to claim a pension under the [VE Act] because [he was] not a ‘veteran’ or ‘member of the Forces’ as defined in the Act”.
On 20 March 2012 the Veterans’ Review Board (“VRB”) affirmed the abovementioned decision of the delegate.
On 19 June 2012 the applicant lodged with the Tribunal an application for review of the abovementioned decision of the VRB.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T15, pp I–CLXXVIII, 1–314) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A8 tendered by the applicant;
·Exhibits R1–R3 tendered by the respondent; and
·the oral evidence of the applicant.
The Issue
It is common ground that the applicant is not a “veteran” as defined in the VE Act.
The matter which is in dispute between the parties is whether the applicant is a “member of the Forces” for the purposes of Part IV of the VE Act. If that matter is determined in the affirmative, the applicant will be entitled to claim disability pension under Part IV of the VE Act.
The Relevant Statutory Provisions
Part IV of the VE Act contains the following relevant provisions:
“ 68 Interpretation
(1) In this Part, unless the contrary intention appears:
…
British nuclear test defence service has the meaning given by subsections 69B(2), (3) and (4).
…
member of the Forces means a person to whom this Part applies by virtue of section 69, 69A or 69B.
…
69BApplication of Part to persons who rendered British nuclear test defence service
(1) This Part applies to a person who has rendered British nuclear test defence service.
…
(4) A person rendered British nuclear test defence service while the person was a member of the Defence Force and, at a time between the start of 3 October 1952 and the end of 31 October 1957, flew in an aircraft of the Royal Australian Air Force or the Royal Air Force that was at that time:
(a)used in measuring fallout from nuclear tests conducted in an area described in the table in subsection (2); and
(b)contaminated by the fallout.”
The “table in subsection (2)”, referred to in s 69B(4)(a), is as follows:
British nuclear test defence service in an area within a period Item Area Period 1 The area within 10 kilometres of Main Beach on Trimouille Island in the Monte Bello Archipelago The period:
(a) starting at the start of 3 October 1952; and
(b) ending at the end of 19 June 1958
2 The area within 25 kilometres of the Totem test sites at Emu Field The period:
(a) starting at the start of 15 October 1953; and
(b) ending at the end of 25 October 1955
3 The area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 April 1965
Section 5C(1) of the VE Act relevantly provides:
“ Defence Force has the same meaning as in the Defence Act 1903.”
Section 30 of the Defence Act 1903 (Cth) provides:
“ The Defence Force consists of 3 arms, namely, the Australian Navy, the Australian Army and the Australian Air Force.”
The Applicant’s Evidence
The applicant’s evidence, as given orally in the Tribunal hearing, and as recorded in a VRB Record of Interview of 1 February 2012 (Exhibit A1), may be summarised as follows:
·he was posted to 34 Squadron at Mallala in South Australia on 13 April 1953;
·he was an aircraft electrician and electrical fitter;
·he was issued a Pass to enter the restricted area of Woomera/Maralinga, valid from 11 August 1953;
·he was detached from Mallala to Woomera in order to service a Royal Air Force (“RAF”) Lincoln bomber aircraft which was operating at Woomera;
·he was familiar with the Mallory intervalometer circuitry in Lincoln aircraft – a device to control the release of bombs and maintain the equilibrium of the aircraft during the dropping of bombs – which had been “cannibalised” in order to operate landing lights in the bomb bay of the aircraft;
·because the RAF Lincoln crew were impressed with his knowledge of the circuitry, he was requested to go on a flight of that Lincoln aircraft in case there were any problems with the circuitry during the flight;
·the RAF Lincoln aircraft took off from Mallala in the early morning (after dawn) of 16 October 1953;
·the aircraft landed at Woomera for fuelling, during which he remained on board, before continuing the flight;
·on board the aircraft, in addition to the British flight crew and himself, were 4 or 5 other British persons (including one female) who did not appear to have any involvement in flying the aircraft;
·those other persons wore white overalls and appeared to him to be “doing the scientific side of things”;
·during the flight he overheard “banter” amongst them to the effect that the readings were “high” or “still high” and he “presumed” that they were recording the level of atomic radiation from the “Totem 1” atomic test which had occurred on the previous day, 15 October 1953, at Emu Field, near Maralinga;
·the flight was “uneventful” for him as there were no circuitry problems during the flight;
·the bomb bay doors of the aircraft were open throughout the flight and he was required to keep out of the way;
·he had not received any briefings about safety hazards and atomic radiation and he was not issued with any protective clothing;
·he was not aware of the flight path of the aircraft and, during the flight, he lay on the floor and had no view of the territory the aircraft was flying over;
·the flight lasted for about 12 hours and landed at RAAF Laverton in Victoria, his new posting, between 4.00 and 5.00 pm on 16 October 1953;
·he had taken his kit bag, RAAF uniforms and all his belongings with him on the flight as he knew he had been posted to RAAF Laverton;
·when he got off the aircraft at Laverton, “it was the last [he] ever saw” of that aircraft;
·he does not know the serial number of that aircraft.
Documentary Material
The T Documents contain voluminous material regarding the British nuclear tests conducted in Australia in the 1950s, including the Totem 1 test on 15 October 1953, and their aftermath. The applicant tendered in evidence further documentary material of the same general nature (Exhibits A3–A4, A6–A8) and material regarding the operations of Lincoln aircraft in tracking the Totem 1 atomic cloud (Exhibit A5).
The respondent tendered in evidence extracts from LINCOLN at War 1944-1966 (Mike Garbett and Brian Goulding) which refer to (inter alia) the operations of RAAF and RAF Lincoln aircraft in the abovementioned British nuclear tests (Exhibit R1). The respondent also tendered in evidence Writeway Research Service reports of Air Commodore M J Brennan (Rtd), dated 8 March 2013 and 15 March 2013, regarding the applicant’s service in October 1953 and aircraft movements at RAAF Mallala and RAAF Laverton in the period 14–16 October 1953 (Exhibits R2 and R3).
It is unnecessary to refer in detail to the contents of the abovementioned documentary material in these reasons.
Analysis
It is common ground that the only basis on which the applicant may be a “member of the Forces” for the purposes of Part IV of the VE Act is that he rendered “British nuclear test defence service” as described in s 69B(4) of the VE Act.
It is common ground that the applicant was, at all material times, a “member of the Defence Force” within the meaning of s 69B(4) of the VE Act. The critical issue, for the purposes of s 69B(4) of the VE Act, in the present case is whether the applicant, at a time in the period from 3 October 1952 to 31 October 1957, flew in a RAAF or RAF aircraft that was at that time:
·“used in measuring fallout from nuclear tests conducted in an area described in the table in subsection (2)” of s 69B; and
·“contaminated by the fallout”.
The applicant testified (relevantly) that he flew in a RAF Lincoln aircraft on 16 October 1953 from Mallala to Woomera and then to Laverton. As regards whether that aircraft was, at that time, used in measuring fallout from (relevantly) the Totem 1 nuclear test conducted at Emu Field on 15 October 1953 (see item 2 in the table in subs (2) of s 69B), the applicant’s oral evidence went no higher than that, on the basis of the apparently scientific personnel on board the aircraft and the “banter” amongst them referring to “high” and “still high” readings, he “presumed” that to be the case. The applicant did not produce any documentary material which substantiated or confirmed that presumption; nor did he provide any evidence that the Lincoln aircraft on which he said that he flew on 16 October 1953 was, at that time, contaminated by fallout from the Totem 1 nuclear test on 15 October 1953.
The Tribunal notes, furthermore, that the abovementioned Writeway Research Service reports tendered by the respondent do not substantiate the applicant’s evidence regarding the flight of a RAF Lincoln aircraft on 16 October 1953. More specifically, according to the report of 8 March 2013 (Exhibit R2), there is no record of a Lincoln aircraft departing RAAF Mallala or Woomera on 16 October 1953; nor is there a record of a Lincoln aircraft arriving at RAAF Laverton on 16 October 1953 (although it is recorded that there was a total of 11 takeoffs and 11 landings of Lincoln aircraft at RAAF Laverton in October 1953).
Having regard to the evidence before it, the Tribunal can only conclude that that evidence does not establish, to the Tribunal’s reasonable satisfaction (that is, on the balance of probabilities), that the requirements of s 69B(4) of the VE Act have been met in the applicant’s case.
Conclusion
As previously noted, it is common ground that the applicant is not a “veteran” as defined in the VE Act, and that the only basis on which he may be a “member of the Forces” for the purposes of Part IV of that Act is that he rendered “British nuclear test defence service” as described in s 69B(4) of the VE Act.
Having regard to the foregoing analysis, the Tribunal is not satisfied that the applicant rendered “British nuclear test defence service” within the meaning of s 69B of the VE Act. Accordingly, the Tribunal is not satisfied that the applicant is a “member of the Forces” for the purposes of Part IV of the VE Act.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Brigadier A G Warner, Member ..........................[sgd]..............................................
Administrative Assistant
Dated 8 April 2013
Date of hearing 19 March 2013 Representative of the Applicant Mr P Grant Representative of the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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