Bastow and Repatriation Commission - [2001] AATA 6

DECISION AND REASONS FOR DECISION [2001] AATA 6

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/432

VETERANS' APPEALS DIVISION       )
           Re      JOYCE MYRTLE BASTOW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member

Date9 January 2001
PlacePerth

Decision       The decision under review is affirmed.
  ...........(sgd S D Hotop)...........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Gold Card – applicant served in Australian Army from July 1943 to October 1945 as a Signaller – applicant served on board Army target boat, "Wadjemup", as a visual signaller – "Wadjemup" sailed between Fremantle and Rottnest Island, and west of Rottnest Island, for purpose of target practice for shore batteries – whether applicant rendered "qualifying service" – whether applicant rendered service in naval or military operations against the enemy – whether applicant incurred danger from hostile forces of enemy – respondent's policy guidelines regarding "qualifying service" – whether respondent's policy guidelines valid and applicable – whether statutory requirements of "qualifying service" deemed to be satisfied by respondent's policy guidelines
Veterans' Entitlements Act 1986 ss5B(1), 7A(1), 85(4A)
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Green v Daniels (1977) 13 ALR 1
Repatriation Commission v Burton (1993) 19 AAR 118
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49

REASONS FOR DECISION

9 January 2001 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member

This is an application by Joyce Myrtle Bastow ("the applicant") for review of a decision of a delegate of the Repatriation Commission ("the respondent") dated 7 July 1998, as affirmed by a Senior Delegate of the respondent on 3 August 1998, that the applicant had not rendered "qualifying service" within the meaning of s7A of the Veterans' Entitlements Act 1986 ("the VE Act") and, therefore, was not eligible for a "Gold Card" pursuant to s85(4A) of the VE Act.
On the first day of the hearing (27 August 1999) the applicant appeared in person without representation but at a resumed hearing on 24 August 2000 she was represented by Mr C Hammal, a lay advocate. On both hearing days the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and documentary exhibits tendered in evidence by the applicant (A1-A7) and by the respondent (R1-R8). The applicant gave oral evidence. There were no other witnesses.
The Factual Background
The material background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows.
The applicant served in the Australian Army from 14 July 1943 to 16 October 1945. From 7 August 1943 to 13 October 1945 the applicant was attached to the Fremantle Fixed Defences as a Signaller.
On 29 May 1998 the applicant lodged with the Department of Veterans' Affairs ("DVA") an "Application for Gold Card" form. In a covering letter dated 27 May 1998 the applicant stated:
"As a service woman in World War II I was stationed at Swanbourne in the Heavy Artillery. I served on board the Wadjemup, an Army target boat, as a visual signaller. We did frequent trips to the other side of Rottnest and Garden Island carrying a splash target which the 6" guns from the different coastal stations used to shoot at for practice and was quite dangerous."

On 7 July 1998 a delegate of the respondent decided that the applicant was not eligible for a Gold Card under s85 (4A) of the VE Act because she did not have the necessary World War 2 qualifying service. The applicant was notified of that decision by letter dated 20 July 1998.
On 27 July 1998 the applicant lodged with the DVA, by letter dated 23 July 1998, a request for a review of the decision dated 7 July 1998.
On 3 August 1998 a Senior Delegate of the respondent affirmed the decision dated 7 July 1998.
On 26 October 1998 the applicant lodged with the Tribunal an application for review of the decision of 3 August 1998.
The Applicant's Evidence
The applicant tendered in evidence a statement signed by her and dated 27 June 1999 (Exhibit A4). That statement is as follows:
"During my service at Swanbourne Heavy Artillery camp as a specialist visual signaller I did frequent trips aboard the Army target vessel Wadjemup which towed a splash target for gun practice. We used to talk about the fact that we should get danger pay as it was quite dangerous.
It is a well known fact that during these target practice shoots the A.W.A.S. from the Command post plotting room, gave their range finder bearings to where the shots were to be fired. There have been many incidents where they got their calculations wrong.
There is a write up in the 'Rottnest Islander' newspaper (July 93) of which I have a copy, referring to Target Practice carried out by the mine-sweepers Olive and Elsie Camm, where the plotting room girls got the bearings wrong and the tow rope about a metre behind the Olive Camm was cut which was highly dangerous.
Just recently I spoke to an ex Command post Army girl from Swanbourne who told me how one day during a Target Practice Shoot, she miscalculated the bearings and the shot was fired over the boat, not the splash target which was fortunate for all on board. I have been on board the Wadjemup when the ocean has been so rough that it was practically impossible for the gun batteries to identify the vessel from the splash target. I can well remember the day when it was so rough, that the skipper and myself were the only ones who weren't suffering from sea sickness and he asked me to take down the shots, as there was no one else in a fit state to do the job. I felt that the Target Practice shoots were highly dangerous to all on board.
Another aspect of the danger was my duties on shore at Swanbourne, where as a visual signaller my job was to identify the ships and submarines entering Fremantle. This consisted of challenging the ships and asking for the identification, this was done by the means of signalling interrogative with an Aldis or 10" lamp. The ship was given a secret ship to shore letter which was changed each day, once they identified themselves they were allowed to proceed into Fremantle. This was quite dangerous, especially during the darkness of night, as it meant you were in direct firing line of enemy vessels. I well remember the day when a Merchant vessel named 'Panamanian' failed to identify itself and a bring to shot was fired over its bows, this was only one of the incidents when a bring to shot was fired at Swanbourne. I consider all of this to have been dangerous."

At the hearing on 27 August 1999 the applicant told the Tribunal that the vessel "Wadjemup", on which she served, would sail from Fremantle and cruise in a northerly direction as far as Swanbourne, for the purposes of target practice shooting from the Swanbourne battery, and, on other occasions, in a westerly direction to a distance of about 3 miles west of Rottnest Island, for the purposes of target practice shooting from the Rottnest Island battery. She said that her service on the "Wadjemup" comprised one full day per month on a regular basis.
The applicant also told the Tribunal that, during her service on the "Wadjemup", she never encountered any enemy vessels, although she added that she believed that enemy submarines were "hovering around under the ocean there".
At the resumed hearing on 24 August 2000 the applicant told the Tribunal that she did frequent trips aboard the "Wadjemup", about once every 2 weeks. She said, in the case of target practice shooting from the Oliver Hill battery on Rottnest Island, the "Wadjemup" would sail west of Rottnest Island up to a distance of about 22 miles.
The applicant also told the Tribunal that, on each trip on the "Wadjemup", they had a drill on board regarding action to be taken if they were in danger from the enemy. She said that there were about 10 crew members on board and their jobs were to run the boat and keep a look out for the enemy. She said that on every trip she feared for her own safety and that of the crew because of possible attack by the enemy or danger from enemy mines.
Finally, the applicant told the Tribunal that, during her period of service, she never saw, and was never fired upon by, an enemy submarine, ship or aeroplane, although she said that she had heard that Japanese aeroplanes were "very, very close" to Fremantle. She confirmed that her service on board the "Wadjemup" comprised the towing of a splash target for the shore batteries to shoot at.
Additional Evidence Tendered by the Applicant
The applicant also tendered in evidence various documents, including a document entitled "Target Towing for Coast Artillery in WA" (which was filed on 24 September 1999) which she said had been prepared by Alan Taylor, a former Warrant Officer who had served on the "Wadjemup". That document states (relevantly):
"…
By 1939, Fremantle would have been the second most heavily defended port in the Commonwealth, after Sydney. On 29 July 1941, a specially designed high speed target towing launch named 'Wadjemup' was unloaded at Fremantle. It was manned by the RAE personnel. The official Army number for the craft was AM 453. The craft was 15.8 metres in length and was powered by petrol engines which gave it a speed of 24 knots. The target was then a torpedo shaped device which produced a target representing the bow wave of a destroyer travelling at speed. The guns ranged onto this as the target.
Even though the tow line was 823 metres in length, target towing could be a hazardous task. A correspondent to the 'West Australian' postwar, recalled a spring day in 1942 when the vessel was cooperating with the Oliver Hill Battery in a live shoot. An overcorrection brought the resultant round too close to the 'Wadjemup' for comfort. The feeling of being shot at made all the more apparent because the incoming round could actually be seen in flight. Besides being a 234 mm projectile it was probably being fired at a reduced charge which would have slowed it down. Just how true his comments were perhaps someone with experience might like to comment.
The 'Wadjemup' was involved in target towing duties with the various coast batteries until the end of hostilities. Regular shoots took place mostly with sub calibre guns or with reduced charges. Naval vessels were also involved in exercises with guns of the fortress. Ships of the Netherlands navy being particularly active in these tasks according to the Fortress War Diaries.
…".

The Law

Section 7A of the VE Act relevantly provides:
"(1)For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or
…".

The phrase "period of hostilities" is defined in s5B(1) of the VE Act to mean, among other periods:

"(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); …".

In Repatriation Commission v Thompson (1988) 44 FCR 20 the Federal Court of Australia (Full Court) explained the meaning of the phrase "incurred danger from hostile forces of the enemy" in the abovementioned statutory definition of "qualifying service" (which then appeared in s36(a)(i) of the VE Act) as follows (at pp 23-24):
"The words 'incurred danger' therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words 'incurred danger' do not encompass a situation where there is a mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.
…
We have already stated that liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred."

In Willcocks v Repatriation Commission (1992) 39 FCR 49 the Federal Court of Australia (Cooper J) explained the meaning of the phrase "in naval, military or aerial operations against the enemy" in the abovementioned statutory definition of "qualifying service" (which then appeared in s36(1)(a)(i) of the VE Act) as follows (at pp 55-56):
"…Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy.
The phrase 'naval, military or aerial operations against the enemy' is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for the service to constitute 'qualifying service' within the meaning of s36(1) of the VE Act.
Having regard to the concession by counsel for the respondent that the applicant had, as a member of the Defence Force, rendered service during a specified period of hostilities in the field in military operations, it is only necessary to address the question what is the ordinary unambiguous meaning of 'against' in the context of the phrase 'military … operations against the enemy'."

His Honour then referred to various usages and meanings of the word "against" given in The Oxford Dictionary (2nd ed) and continued:

"In s36(1)(a)(i), the noun 'operation' is clearly a noun of action; and the use of the word 'against' in the phrase 'military operations against the enemy' clearly expresses the adverse bearing of that noun in the context of s36(1)(a)(i).
Accordingly, in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy."

The abovementioned reasoning of Cooper J was also adopted by the Federal Court of Australia (Olney J) in Repatriation Commission v Burton (1993) 19 AAR 118.
The Respondent's Policy in Relation to "Qualifying Service"

The respondent tendered in evidence, for the information of the Tribunal, copies of various official documents (Exhibits R5-R8) which provide the background to the development by the respondent of policy guidelines to be applied by delegates of the respondent in making determinations on "qualifying service" within the meaning of s36(a)(i) of the VE Act (a predecessor of the present s7A(1)(a)(i) of the VE Act). These documents included three Cabinet documents of July 1965 (Exhibit R8) relating to the policy to be applied by the respondent in making determinations on the question whether a member of the Forces had "served in a theatre of war" for the purpose of deciding whether such member was eligible for the grant of a service pension under s84(1) of the Repatriation Act 1920. The phrase "served in a theatre of war" was defined in s23 of the Repatriation Act in terms substantially similar to the definition of "qualifying service" in s7A(1)(a)(i) of the VE Act. The first of the abovementioned Cabinet documents was a Submission to Cabinet dated July 1965 by the then Minister for Repatriation, Senator G C McKellar, which relevantly stated:
"1.       In Submission No. 458 of 1964, my predecessor brought to Cabinet's notice certain features of the Repatriation system which had some appearance of anomaly and which had attracted public criticism, also the practical and political difficulties of altering at this stage the established law and policies in those areas.
2.        The matters directly concerned legislation and long-standing departmental policies relating to pulmonary tuberculosis, assessments for defective vision, and service in a 'theatre of war'. The apparent anomalies to which attention was invited were:
…
Service in a 'Theatre of War'
          This is defined in section 23 of the Act and is a requirement for service pension and also for grant of war pension for tuberculosis not due to war service. Since the 1939-45 War it has been conceded in respect of service outside the territorial waters or outside a limit of three miles from the coast of the Commonwealth of Australia during the period of hostilities. In a number of cases this has not been strictly in accordance with the legislation, which requires that 'danger from hostile forces of the enemy' should have been 'incurred'. The principal difficulty concerns service on certain Australian off-shore islands, in particular Rottnest Island off Fremantle.
…
15.      Since the previous submission to Cabinet the Repatriation Commission has dealt with a number of claims of this nature. In regard to service in Australian coastal waters and on Australian off-shore islands, it has restricted eligibility to periods from the commencement of hostilities to 3 months after the last known enemy action in those waters or adjacent waters. Further, in the case of service on off-shore islands, it has required not less than 3 months continuous service during such a period. It is not proposed to review earlier entitlements on this basis, but to apply the new policy to new claims only. So far its application has not been the subject of challenge or complaint
.
RECOMMENDATION
16.      In my view it is neither reasonable nor politically practicable to materially vary longstanding policies. I therefore RECOMMEND that Cabinet take note of the matters to which I have referred and decide that:-
          (a)       …;
          (b)       …;
(c)the Commission's revised policy for determination of service in a theatre of war as applied to service in Australian coastal waters or on Australian off-shore islands as explained in paragraph 15 be endorsed."

A Cabinet Minute dated 7 July 1965 confirmed that "the policy outlined in paragraph 15 of the Submission is to be regarded as current policy".

An official minute of a meeting of the respondent held on 10 September 1986 (Exhibit R3) states as follows:
"QUALIFYING SERVICE FOR THE PURPOSE OF
ELIGIBILITY FOR SERVICE PENSION –
WORLD WAR II VETERANS
COMMISSION DECISION
The Commission had before it a submission from the Benefits Division proposing guidelines for Commission delegates in determining 'qualifying service' in service pension claims based on section 36(a)(i) of the Veterans' Entitlements Act (VEA).
2.        The Commission DECIDED to adopt the guidelines set out below for use by delegates in determining qualifying service for the purposes of sub-section 36(a)(i) of the VEA in relation to Australian Veterans who served during the 'period of hostilities' (section 35 of the VEA) in the Second World War.
3.        A Veteran will be deemed to have qualifying service in the terms of sub-section 36(a)(i) of the VEA if the Veteran served outside Australia (that is, outside the coastal waters of Australia):
i)in any area, other than the 'West Pacific area', between 3 September 1939 and 5 May 1945 (inclusive);
ii)in the 'West Pacific area' (other than in Papua or New Guinea, including New Britain, before 7 December 1941) between 3 September 1939 and 15 August 1945;
iii)in Papua or New Guinea, including New Britain, between 7 December 1941 and 15 August 1945; or
iv)in an aircraft engaged in operations against hostile forces of the enemy or on reconnaissance or patrol duty over land occupied by hostile forces of the enemy.
4.        For definitional purposes 'West Pacific area' will be taken to include the general area bounded by:

in the west, longitude 90 degrees east from the coast of (now) Bangladesh;
in the east, longitude 165 degrees east;
in the south, latitude 10 degrees south including PNG; and
in the north, by and including the eastern regions of the Asian continent.
5.        As to claims by Veterans who served within Australia and its coastal waters, the Commission DECIDED to maintain, for the determination of 'qualifying service', the policy which applied for determining 'theatre of war' under the previous legislation as set out in Attachment B to this decision, subject to any review which becomes necessary as a result of guidance from courts interpreting the provisions of the VEA.
6.        Claims by Australian Veterans who served other than in circumstances described in paragraph 3 above and in Attachment B to this decision and who claim to have incurred danger from hostile forces of the enemy during the period of hostilities will be decided on the basis of the Veteran's individual circumstances.
7.        Commission delegates are to note that the standard of proof which applies under the VEA to claims for 'qualifying service' is the civil standard."

"Attachment B", referred to in paras 5 and 6 of the abovementioned minute, states as follows (Exhibit R2):

"QUALIFYING SERVICE IN AUSTRALIA AND
COASTAL WATERS OF AUSTRALIA –
WORLD WAR II VETERANS
A Veteran will be deemed to have qualifying service in terms of sub-section 36(a)(i) of the VEA
(a) if the Veteran served at sea in the coastal waters of Australia from
(i)Exmouth Gulf (south) to Albany between 3 September 1939 and 6 May 1944;
(ii)Albany (east) to Sydney between 3 September 1939 and 26 March 1945;
(iii)Sydney (north) to Thursday Island between 3 September 1939 and 16 September 1943 (service in Moreton Bay or on the islands at the entrance to that bay is excluded); or
(iv)Thursday Island (west) to Exmouth Gulf between 19 February 1942 and 12 November 1943; or

(b)if the Veteran served in the Northern Territory for at least three consecutive months north of latitude 14.5º south, or on any of the islands contiguous to that part of the N.T., between 19 February 1942 and 12 November 1943 (inclusive); or
(c)if the Veteran served on the Torres Strait Islands (including Horn Island)
(i)between 3 September 1939 and 16 September 1943 and the Veteran enlisted at a place other than the Islands or served outside the three-mile limit of the island of enlistment; or
(ii)between 14 March 1942 and 19 June 1943 where such service was on the island of enlistment only and was not less than three consecutive months duration; or

(d)if the Veteran served on Rottnest Island for a period of not less than three months duration between 3 September 1939 and 6 May 1944."

The Validity and Applicability of the Respondent's Policy in Relation to "Qualifying Service"

Although the Tribunal is bound to have regard to relevant governmental or departmental policy guidelines when reviewing decisions, it is not bound to follow such policy guidelines in the absence of a statutory obligation to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The general practice of the Tribunal, however, is to apply relevant policy guidelines – especially where they have been settled at the political, rather than the merely departmental, level – unless they are unlawful or their application would cause injustice in the circumstances of the particular case or there are other cogent reasons militating against their application: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
The respondent's policy guidelines in relation to making determinations on "qualifying service" within the meaning of the VE Act, set out in para 21 above, were originally settled at the political level (see para 20 above). The valid application of those guidelines is, however, dependent on their being consistent with the relevant legislation – specifically s7A(1)(a)(i) of the VE Act: Green v Daniels (1977) 13 ALR 1.
The Applicability of the Respondent's Policy in Relation to "Qualifying Service" in the Circumstances of the Applicant's Case
Mr Ponnuthurai (for the respondent) submitted, inter alia, that the applicant's service on the vessel "Wadjemup" did not constitute "qualifying service" within the meaning of s7A(1)(a)(i) of the VE Act because she did not in fact incur danger from hostile forces of the enemy while on that vessel and because, in any event, her service on the vessel "Wadjemup" was not rendered in naval or military operations "against the enemy". He further submitted that, if the effect of applying the respondent's abovementioned policy guidelines in the present case was that the applicant's service on the vessel "Wadjemup" was deemed to be "qualifying service" within the meaning of s7A(1)(a)(i) of the VE Act, those policy guidelines were inconsistent with that statutory provision and were, accordingly, invalid.
As regards the issue of whether the applicant "incurred danger from hostile forces of the enemy" when she rendered service on the vessel "Wadjemup", the test to be applied by the Tribunal in accordance with Thompson (above) is an objective one. It is not sufficient that the applicant subjectively feared that she might be in danger from hostile forces of the enemy or that there was a risk of danger from such forces. To satisfy the test, the applicant must in fact have incurred danger from such forces. On the evidence before it, the Tribunal is unable to find that that test is satisfied in the present case. On the applicant's own evidence, she was never fired upon by – indeed, she never saw or encountered – an enemy submarine, ship or aeroplane during her service on the "Wadjemup". Put at its highest, the evidence was that there may have been a risk of danger from the enemy to those on board the "Wadjemup", but such a risk is, of itself, insufficient to satisfy the abovementioned statutory test. She may have in fact incurred danger from "friendly fire" from the shore batteries which were shooting at the splash target towed by the "Wadjemup" – a matter which, perhaps fortunately, the Tribunal is not required to consider – but the evidence before the Tribunal does not establish that she did in fact incur danger from hostile forces of the enemy.
As regards the issue of whether the applicant, when serving on board the "Wadjemup", was rendering service at sea in naval or military operations against the enemy, the correct approach to be adopted by the Tribunal, in accordance with Willcocks and Burton (above), is to consider whether such service was rendered in naval or military operations "in hostility or active opposition to" the enemy. There is no dispute that the applicant's service on the "Wadjemup" comprised exclusively the towing of a splash target which was shot at by the shore batteries at Swanbourne and on Rottnest Island in the course of target practice. That, in the Tribunal's opinion, cannot reasonably be characterised as a naval or military operation against – in the sense of, in hostility or active opposition to – the enemy.
The respondent's abovementioned policy guidelines in relation to "qualifying service" are in terms applicable in the applicant's case because, according to her evidence (which was not contradicted and which the Tribunal accepts), she served on the "Wadjemup" both "in the coastal waters of Australia from Exmouth Gulf (south) to Albany between 3 September 1939 and 6 May 1944" (see Exhibit R2) and "outside the coastal waters of Australia" in an "area, other than the 'West Pacific area', between 3 September 1939 and 5 May 1945 (inclusive)" (see Exhibit R3). The question is, however, whether those policy guidelines can validly apply so that the applicant's service on the "Wadjemup" is deemed to be "qualifying service" within the meaning of s7A(1)(a)(i) of the VE Act. More specifically, can those policy guidelines validly operate so that the relevant statutory requirements, namely, that the applicant "incurred danger from hostile forces of the enemy" and that she "rendered service … in naval, military or aerial operations against the enemy", are deemed to be satisfied in her case?
The respondent's policy guidelines cannot validly operate so as to deem a statutory requirement to be satisfied when that requirement cannot, on the facts, be satisfied, because that would be to allow the policy, in effect, to override the statutory provisions. If the policy guidelines are necessarily inconsistent with the statutory provisions, the latter will, of course, prevail and the policy guidelines will be invalid. If, however, the policy guidelines can be read down so as to avoid necessary inconsistency with the statutory provisions they may be validly applied on that basis.
In the present case, the Tribunal has found that the service rendered by the applicant on the "Wadjemup" cannot reasonably be characterised as service rendered "in naval, military or aerial operations against the enemy" within the meaning of s7A(1)(a)(i) of the VE Act, and, in the Tribunal's opinion, the respondent's policy guidelines in relation to "qualifying service" cannot validly operate so as to deem that particular statutory requirement of "qualifying service" to be satisfied in the applicant's case.
In necessarily follows from that finding that the Tribunal also finds that the applicant's service on the "Wadjemup" does not constitute "qualifying service" within the meaning of s7A(1)(a)(i) of the VE Act. It is, therefore, not necessary for the Tribunal to consider whether the respondent's policy guidelines could be validly applied so as to deem the "incurred danger" requirement of "qualifying service" in s7A(1)(a)(i) of the VE Act to be satisfied in the present case.
Conclusion
The ultimate finding of the Tribunal is, therefore, that the applicant's service on the "Wadjemup" does not constitute "qualifying service" within the meaning of s7A(1)(a)(i) of the VE Act. It necessarily follows that the applicant is not eligible for a "Gold Card" pursuant to s85(4A) of that Act.
Decision
For the above reasons the Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Brigadier R D F Lloyd, Member
Signed:
.................................(sgd S Railton)................................
Associate
Date/s of Hearing  27 August 1999 and 24 August 2000
Date of Decision  9 January 2001
Counsel for the Applicant        Mr C Hammal
Solicitor for the Applicant
Counsel for the Respondent    Mr C Ponnuthurai
Solicitor for the Respondent