Beutler and Repatriation Commission - [2001] AATA 326

DECISION AND REASONS FOR DECISION [2001] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1304

VETERANS' APPEALS DIVISION          )
           Re      GERRIT BEUTLER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date23 April 2001
PlaceSydney

Decision      The decision under review is set aside and in substitution therefor, the Tribunal decides that the Applicant satisfies the requirement for qualifying service pursuant to section 7A of the Act, and is entitled to an age service pension under subsection 36(1).
  [sgd] Rear Admiral A R Horton AO
  Member

CATCHWORDS

VETERANS' AFFAIRS – Application for service pension – applicant accepted as allied veteran – claim of service with Dutch resistance movement – service in Royal Netherlands Navy- whether qualifying service rendered in service either with resistance forces or during naval service

Veterans' Entitlements Act 1986 - ss 5C, 5R, 7A, 35, 36(1), 36(2), 120(4), 120B
Repatriation Commission v Thompson (1988) 15 ALD 501
Boots v Repatriation Commission (1993) 29 ALD 702
Nolan v Repatriation Commission (1999) 58 ALD 275
Nolan v Repatriation Commission (1999) 56 ALD 217
Re Boots and Repatriation Commission (AAT 9207, 23 December 1993)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision made on 18 March 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 5 July 1999, that Gerrit Beutler ("the Applicant") was ineligible for a service pension because he had not rendered qualifying service pursuant to section 7A of the Act. The Applicant lodged an application for review with the Administrative Appeals Tribunal ("the Tribunal") on 27 August 1999.
At the hearing before the Tribunal on 16 February 2001, the Applicant was self represented. Mr J Marsh, Senior Advocate, appeared for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:
Exhibit No     Description    Date
A1      Letter to the Tribunal, with attachments, from the Applicant 9 August 2000
A2      Statement by the Applicant 16 February 2001
R1      Report, with attachments, by Mr B G O'Keefe, Consulting Historian 14 July 2000
R2      Report, with attachments, by Mr B G O'Keefe, Consulting Historian 23 September 2000

ISSUES BEFORE THE TRIBUNAL

The Applicant, in oral evidence, stated that he arrived in Australia from the Netherlands in 1950 under the Ex-Servicemen's Scheme. He applied for a service pension in November 1983. Correspondence in respect of this application is in the T documents (T3-T11, pp8-28), a relevant file indicating that the application was declined in June 1985 due to insufficient evidence. At Exhibit A2 and in oral evidence, the Applicant stated that he ceased pursuing the claim due to language problems leading to difficulty in understanding the requirements, and because he was unable to obtain the required information in support of his claim. He subsequently re-applied on 3 February 1999, the resultant decision by the Respondent being the subject of this review.
Subsection 36(1) of the Act sets out the eligibility for an age service pension. It provides that a person must be a veteran, have rendered qualifying service, and have reached pension age. Subsection 36(2) further requires an allied veteran to have been an Australian resident for a continuous period of at least 10 years.
The term "veteran" encompasses "allied veteran", which is defined pursuant to subsection 5C(1) of the Act, relevantly, as:
"'allied veteran' means a person:
(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full time service as such a member during a period of hostilities;"

Defence force established by an allied country is defined by subsection 5C(1) as:

"(a)     the regular naval, military or air forces; and
(b)       the nursing or auxiliary services of the regular naval, military or airforces; and
(c)       …"

During World War 2, the Netherlands was governed-in-exile. Subsection 5C(3) provides an eligibility related definition in respect of the defence forces established by an allied country in such circumstances. It defines such defence forces as:
"(a)     the regular naval, military or air forces; and
(b)the nursing or auxiliary services of the regular naval, military or air forces; and
(c)the women's branch of the regular naval, military or air forces; raised by that government-in-exile and operated by it with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services; and
(d)       were formally appointed to, or enlisted in, those forces or services; and
(e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f)        were required to carry arms openly; and
(g)       were subject to the rules and conventions of warfare."
The provisions of subsection 5C(3) are modified by 'determinations having interpretative effect' in subsection 5R(2), which provides for the circumstances where the wearing of uniform or carrying of weapons would be unreasonable or unnecessary, the legislation stating, relevantly:

"Allied veteran determination
(2)If a person who is a claimant for an age service pension or an invalidity service pension satisfies the Commission:
(a)that the person has been appointed or enlisted as a member of the forces or services of:
(i)an allied country, being forces or services of a kind referred to in the definition of "defence force established by an allied country"; or
(ii)the government-in-exile of an allied country, being forces or services of a kind referred to in subsection 5C(3); and

(b)that those forces or services were raised and operated in such a manner that the members of those forces and services:
(i)were formally appointed to, or enlisted in, those forces or services; and
(ii)were subject to the rules and conventions of warfare; and

(c)that the person was not required, as such a member, to wear a uniform or insignia distinguishing the person as a member of those forces or services or to carry arms at all or to carry arms openly; and
(d)that it would have been unreasonable, having regard to the conditions existing, at the time the person served in those forces or services, in the parts of that country in which the person so could serve, for the person to have been required to wear a uniform or insignia or to carry arms or to carry arms openly;

the Commission must determine that the person is, for the purposes of the definition of "allied veteran" in subsection 5C(1) to be treated as a person who has been appointed or enlisted as a member of the defence force established by that allied country or that government-in- exile."

For the purpose of Part III of the Act, which refers to pensions, a person has to render qualifying service which is relevantly defined in subsection 7A(1)(c);
"if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy;"
Subsection 5B(1) defines the period of hostilities and states, relevantly:
"(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
…"
There are two claimed periods of service under review, that with the resistance (underground) movement and a later period in the Royal Netherlands Navy. In confirming the determination of the delegate in the decision under review, the Respondent conceded that the Applicant was an allied veteran as defined in section 5C of the Act, by reason of his enlistment in the Royal Netherlands Navy during the period of hostilities. However, the Respondent submitted that the Applicant had not incurred danger from hostile forces of the enemy in that period of service, and hence had not rendered qualifying service. The Respondent further submitted, that the Applicant had not met the criteria for qualifying service in the course of any activities with the resistance movement.
The relevant standard of proof is that of reasonable satisfaction, pursuant to subsection 120(4) of the Act, equating to proof on the balance of probabilities. Pursuant to subsection 120(6), there is no onus of proof on either party.
FACTS AND EVIDENCE
Mr Beutler was born in Holland in 1923. In September 1942 he became an unsalaried apprentice fitter-turner in the Central Workshop of the N.V.Dutch Railways (Exhibit A1). He gave evidence that he lived with his parents in Hilversum, travelling by rail to his place of work, which was usually in Utrecht. He was issued with the necessary documentation to meet the requirements of the German occupation forces. He attended technical college in the evenings in Utrecht, as part of his apprentice training.
On 17 September 1944, the Netherland railway system was shut down by strike action, coincident with the Allied airborne assault on river and canal bridges in that country, and the Applicant's employment, and that of all railway employees, was severed. The Applicant gave evidence that he returned to Hilversum from Utrecht 'on the last train' and thereafter occasionally visited his family home but generally lived on farms and in barns, often sleeping in haystacks, as he participated in activities with the Dutch resistance. He continued to do so until the end of the war in Europe in May 1945, and it is this eight months that is the first period in which qualifying service was claimed.
The Applicant did not return to the railways after the war, when railway services were resumed, but volunteered for the Royal Netherlands Navy. Some weeks later, he was enlisted (on 7 July 1945 as shown in his Service record), completing his service on 14 January 1949. He subsequently migrated at his expense to Australia in 1950, receiving a small payment from the Australian Government as an ex-serviceman.
Resistance Activities
The claimed period of activities with the Dutch resistance movement is that from 17 September 1944 when the railway strike commenced until the end of the war in Europe in May 1945. At the outset of his evidence, Mr Beutler spoke to the differing geographical circumstances within Holland as allied forces advanced towards Germany. He described the Dutch Army, under Prince Bernhard, as forming part of the advance 'along the eastern border with Germany', liberating that part of Holland. The low lying lands to the west, much of it being inundated by water from damaged dykes, where he was located, remained under German occupation. To avoid being sent to Germany as forced labour, he was rarely at the home of his parents, living from 'place to place, farm to farm….sleeping in haystacks, under floors, between ceilings'. His parent's home was one of three adjoining houses; a dentist in one operated a warning bell to alert residents to the arrival of German police or troops.

Mr Beutler gave evidence that after the railway strike commenced he was approached by individuals, including the neighbouring dentist, to participate in resistance activities, but in any event wanted to do whatever he could because of the atrocities committed against the Dutch people. He was not approached by an organisation as such, but by individuals. His initial involvement was acting as a courier (T15), and in evidence he also referred to assisting people to escape from trains transporting them to Germany. His subsequent resistance activities included the severing of railway communications, blocking the points systems on the railway, and damaging enemy vehicles. He agreed with the statement by Mr O'Keefe at exhibit R1 that the extent of sabotage operations increased after September 1944, particular activities being the blowing up of railway lines, disruption of road communications and the destruction of German vehicles. He variously worked with in a team of up to six or eight people, depending on the nature of the operation. When recovering parachuted weapons, it would often require the larger numbers. He carried a spiked knife and on some occasions was provided with a pistol or small bayonet.

Mr Beutler stated that because of the nature of resistance activities, no list of members of the resistance groups was compiled. The individuals with whom he undertook resistance activities, who were known only by first names or nicknames, indicated they were part of an organisation. No such organisation was ever identified. The Applicant was aware, including when employed by the railways, that various underground organisations existed. He believed the dentist and others gave directions, but was not aware of any affiliation they may have had with a particular organisation. The Respondent suggested to the Applicant:
"is it possible that the group you belonged to were simply a group of individuals resisting the Germans with their own little organisation?"

The Applicant replied:

"I don't think so because, as I explained in my letter (Exhibit A2), an uncle of mine who was in the Federal Police, we had many things told …what we were expected to do and went to do. …We were directed in one way".

In response to the Tribunal, the Applicant stated that central briefings did not take place, but he and others were informed by a note, "passed from one person to another".

In cross examination, the Applicant confirmed that he went through no enlistment process, and had no record to confirm his activities with any resistance movement. He was not familiar with the Stichting certificate, referred to in Boots and Repatriation Commission (AAT 9207, 6 December 1993), which was issued to individuals by a national body after the war to record participation in the resistance movement. He was aware that after the war the Dutch government had awarded medals to some resistance fighters. He stated that he had been unable to obtain any confirmatory evidence as to his involvement in the resistance movement due to the passage of time, and an inability to obtain some of the information requested by the Respondent, perhaps because the relevant Dutch authorities no longer existed, and that known contacts at the time were now deceased. He had not been in contact with any Netherlands ex-service associations in Australia.

Mr O'Keefe, Consulting Historian, provided reports to the Respondent at exhibits R1 and R2. The latter enclosed a letter from the Netherlands Institute for War Documentation dated 12 September 2000 which states:
"Based on the information provided [by Mr O'Keefe], I could not find any documentation on Mr Gerritt Beutler.
Because the activities of the resistance organisations had to be carried out in secret, no lists of members were compiled. Neither all the names are known of the people who took part in the nationwide railway strike, in which some 30,000 people participated."
In seeking the above information, Mr O'Keefe sought to establish whether Mr Beutler had been a member of one of the three resistance organisations included in the Nederlandse Binnenlandse Strijdkrachten ("NBS") (Interior Forces) which was established by Queen Wilhemina (from London) on 5 September 1944, namely the Orde Dienst (OD), Raad van Verzet (RvV) and the Landelijke Knokploegen (LKP). The Landelijke Organisatie voor Hulp aan Onderduikers, or National Organisation for help to People in Hiding ("LO"), provided a support function to the Interior Forces (Re Boots (supra) at 15). The attachments to exhibit R1, and notably The Dutch under German Occupation by Werner Warmbrunn, How Dutch Resistance was Organised by Harry Paape and The Netherlands and Nazi Germany by Louis de Jong, describe the nature and role of these organisations. Mr O'Keefe draws on these documents in reaching his conclusions, as to the suggested involvement by the Applicant in resistance activities.

Mr O'Keefe notes that to avoid deportation to Germany, the Applicant would have gone into hiding after the commencement of the 1944 rail strike. He postulates that weapon drops by allied aircraft, referred to by the Applicant, were intended for the NBS and arranged with that organisation by the Special Operations Executive in England, and
"it is difficult to see how such drops could have been directed to any organisation not officially recognised as part of the Interior Forces".

He further opines that:

"if Mr Beutler did take part in resistance work and this included the collection of arms and ammunition dropped by allied aircraft, it seems likely that he would have performed this work as part of the NBS".

In respect of the specific organisation that Mr Beutler may have worked for, Mr O'Keefe suggests the most likely to be the RvV, opining:
" This organisation was the first to put forward the idea of a railway strike in the Netherlands, the proposal suggesting the organisation had some link to the railways and its employees; these may have been retained and even perhaps strengthened after the strike began. Secondly, the RvV was the largest organisation with the broadest membership, whereas in contrast, the OD was a small organisation largely restricted to men with a military background, while the LKP had a strong religious leaning and through its connection with the (LO), may have been less inclined towards sabotage activities. Finally, members of the RvV certainly engaged in the sort of resistance activities that Mr Beutler claims he was involved in.
If Mr Beutler did serve with the RvV or one of the other two major resistance organisations, his ignorance of what organisation he actually worked for may have been dictated by the organisation's need to maintain strict security."
In a telephone interview with the Income Support Service Officer of the Respondent (T15) on 9 February 1999, it is recorded that Mr Beutler stated that he did not wear a uniform, or carry a weapon openly, and he confirmed this to the Tribunal. T15 records that Mr Beutler said he was not involved with the Dutch Forces of the Interior; when questioned by the Respondent before the Tribunal, Mr Beutler stated 'Well, I didn't know. I didn't know the name. I had not heard the name'. He went on to state, as earlier noted, that his group activities 'were directed' rather than being the actions of a group of individuals.

The Applicant stated that at the time (1944/45) he heard different names of various organisations, but had no knowledge of their role or activities. He did not think he belonged to the RvV or OD, nor the LKP which he believed carried weapons and infiltrated from the liberated area to the east into the western area. When asked about the likelihood of belonging to the LO, wherein the Respondent asked, "You say you belonged to the LO?", he replied, "Yes, that is the only way that I can see it". In a further response to the question, "So by exclusion you think that was the group you belonged to?", Mr Beutler replied, "Yes".
Naval Service
The Applicant's Record of Service confirms that part of his full time service took place within the period of hostilities ending on 29 October 1945. He confirmed in evidence that during that period (from 7 July 1945 until 29 October 1945) he was under training, initially in Holland and then in the United Kingdom. He did not believe he had incurred danger at any time in that period, and no evidence was given to the contrary. On completion of his training in early 1946, he was posted to the Mine Countermeasures service clearing mines off the coast. He considered this dangerous, but conceded that it occurred after the war finished and outside the period of hostilities; he gave no evidence of any particular incidents. He subsequently served at sea and ashore, and in the Netherlands East Indies, further details of his service being given by him at folio 12 of the section 37 documents.
ANALYSIS OF EVIDENCE AND FINDINGS

Having conceded that the Applicant was an allied veteran pursuant to section 5C of the Act (paragraph 11), the Respondent submitted that the matter hinged on whether he had rendered qualifying service in either his underground activities or during his later service in the Royal Netherlands Navy.
In considering the Applicant's service in the latter organisation, the Respondent submitted that his service did not commence until after the cessation of hostilities in Europe, and that his subsequent service up until the end of the statutory period of hostilities, that is 29 October 1945, took place under training in Holland and in the United Kingdom. The Respondent submitted that from his evidence, the Applicant had not incurred danger from hostile forces of the enemy, a requirement pursuant to subsection 7A(1)(c).
The Full Federal Court (Davies, Wilcox and Foster JJ) defined 'incurred danger' in Repatriation Commission v Thompson (1988) 44 FCR 20 as providing an objective, rather than subjective test. In evidence to the Tribunal, Mr Beutler stated that he did not believe he had incurred danger at any time in this period, that is, he conceded that he had no subjective or objective concept of incurring danger, and offered no evidence as to any event that might be considered by the Tribunal as having placed him in a situation of incurring danger in any sense. Events outside the period of hostilities, such as during his service in the Netherlands East Indies are not relevant to this consideration, nor indeed were any raised before the Tribunal. Thus the Tribunal finds on the facts before it, that Mr Beutler did not incur danger during his service in the Royal Netherlands Navy, within the statutory period of hostilities, and accordingly has not rendered qualifying service during this period.
In respect of Mr Beutler's earlier underground or resistance activities, the Respondent referred the Tribunal to the wording of subsection 7A(1)(c), submitting that it required "some form of official impromata given by a government, an allied government or a government in exile, to those forces which would be recognised as …a defence force established by an allied country", and that such an interpretation would exclude "private armies or individually constituted acts…. There needs to be some organisational or formal structure involved."
The Respondent submitted that such an interpretation is reinforced by the definition of allied veteran in subsection 5C(1) of the Act, which refers to people who have been appointed or enlisted as a member of a defence force established by an allied country. Further, subsection 5C(3) relates to a defence force established by a government-in–exile, the situation at that time in Holland, and includes regular and auxiliary forces, "operated with regular military-like lines of command", the members of which were formally appointed or enlisted, wore uniforms and carried arms.
The Respondent conceded that the Applicant must benefit from the ameliorating provisions of subsection 5R(2) in respect of wearing a uniform or carrying arms, it being "unreasonable to have required anyone in Mr Beutler's circumstances to have (done so)". The Respondent submitted, however, that the ameliorating provisions in subsection 5R(2) do not extend to the range of requirements in subsection 5C(1) and 5C(3), in that formal appointment to, or enlistment in, the (relevant) force remains a requirement and the member is subject to the rules and conventions of warfare.
In support of this interpretation with respect to the operation of section 5R, the Tribunal was referred to the Federal Court decision in Nolan v RepatriationCommission (1999) FCA 130, a decision subsequently upheld by the Full Federal Court (Nolan v Repatriation Commission (1999) FCA 1096). This matter related to an appeal against an Administrative Appeals Tribunal decision by an applicant who had served in an American Exchange Service (AAFES but commonly known as the "PX") facility in Vietnam, who claimed that the PX was an 'auxiliary service' and hence she was qualified for a service pension. Counsel for that applicant submitted that the requirement to "operate with military like lines of command …." as defined in subsection 5C(1) in that instance (and 5C(3) in this matter), had not been carried forward into subsection 5R(2) and hence should be ignored.
O'Loughlin J rejected this submission, stating:
"Mr McKeand, counsel for the appellant, submitted that the language used in the definition of "defence force established by an allied country" was materially different to the language that appears in subs 5R(2). In particular, he laid stress on the presence of words:
"raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services…"
in the definition and their absence in subs 5R(2). Thus said Mckeand, in a consideration of Ms Nolan's application, one is obliged to ignore that part of the definition that I have quoted. In its concluding remarks, the Tribunal had said of the AAFES that it was not "operated with regular military-like lines of command". Mr McKeand said that this was an error on the part of the Tribunal as it should have ignored the quoted passage. This argument cannot be correct. It overlooks, first, the fact that the words in the quoted passage are descriptive of the forces and services that are listed in paras (a), (b) and (c) of the definition and secondly that in subpar 5R(2)(a)(i) the legislature connects the language in the definition by referring to "forces or services of a kind referred to in the definition…". Far from creating a contradictory position, the use of the words "of a kind" form a connection that allows the language of the definition and subs 5R(2) to be read in harmony. Subsection 5R(2) does not supplant the definition as Mr McKeand submitted it; it qualifies it; and with its qualification, it is to be read in conjunction with the definition. …"
The Tribunal follows the reasoning of O'Loughlin J in accepting the submission by the Respondent that the amelioration provisions in subsection 5R(2) do not override the provisions of section 5C in respect of the defined services, the lines of command and the appointment to, or enlistment in, those forces.
The Respondent then referred the Tribunal to the matter of Boots vRepatriation Commission (1993) 29 ALD 702, wherein Enfield J allowed an appeal against a decision by the Tribunal, and Re Boots and Repatriation Commission (AAT 9207, 23 December 1993) wherein the President of the Tribunal decided that Mr Boots had rendered qualifying service as a member of the Dutch underground. The Respondent submitted that the circumstances and evidence in that matter were sufficiently definitive and different to the circumstances and evidence in this case as to preclude the Applicant from benefiting from the decision in Boots (supra).
Mr Boots served in the Dutch resistance, his evidence being that he served with the L.O. from 1942 until 1945. Confirmation of that service was contained in a Stichting certificate which was issued by a Dutch organisation after the war to record the registration of a resistance worker. Two independent witnesses, both representatives of Netherlands Ex-Service Associations in Australia, gave evidence in support of the authenticity of this certificate and the activities of the LO. The witnesses confirmed that the LO was, in the latter part of the war, under the command of the Interior Forces, that the members were not armed, but were subject to a disciplinary structure, their predominant role at this time being to keep up food supplies.
O'Connor J in Re Boots (supra) accepted that the LO was an auxiliary service for the purposes of subsection 5C(3)(b) and that whilst appointment or enlistment in the LO, in that instance, was not undertaken within the formal circumstances of an "oath of allegiance or enlistment ceremony", appointment and enlistment was formalised in the sense that it had to be undertaken by a member with the authority to do so, that vetting procedures were in place, secrecy was paramount and "the process was not haphazard". O'Connor J stated that in her view:
"…particularly in the light of the beneficial nature of this legislation, these procedural steps are sufficient to satisfy the formality required by the section. The statutory provisions are clearly intended to encompass resistance workers and the LO had as formal a process for appointment or enlistment as the dangerous circumstances allowed."
The Respondent emphasised to the Tribunal, that unlike Mr Boots, there is no official record nor corroboration that this Applicant belonged to any of the forces so described as comprising the Interior Forces, they being accepted as auxiliary forces pursuant to subsection 5C(3). The Respondent also referred the Tribunal to a cautionary note sounded by Enfield J in Boots (supra) at paragraph 23, drawn on by O'Connor J, which arose in reference to the matter of 'continuous full time service' as incorporated in subsection 5C(1) wherein 'allied veteran' is defined.
"Clearly it is not easy to correlate a legislative definition in peacetime Australia (s.5 (1) of the Act) to the situation of underground forces resisting Nazi occupation in occupied Europe. But it is more difficult to conclude that the Australian Parliament intended that its special legislation for this purpose exclude from its benefits a full time member of a group such as the LO. As it seems to me, Parliament's intention was not to lay down conditions which were to be subject to pedantic analysis made from the safety and remoteness of more than forty relatively peaceful years later but to include as persons entitled to an Australian pension those former citizens of friendly countries who could be seriously regarded as having truly participated in their countries' national defence effort to resist and eventually defeat their and our joint enemy. Having in mind that many Australians who gave significant personal but informal service to the war effort of this country are not entitled to a pension, Parliament was clearly concerned not to grant any broader right to migrants from allied countries who had been similarly active in their former countries. No doubt it was also anxious to exclude people who claimed national defence-type service falsely or claimed a type of service that was so peripheral or general to the defence of freedom as to be unable to be evidenced or checked."
The Respondent referred the Tribunal to folios 52 to 57 in the section 37 documents, these being various and generally unsourced departmental papers. A policy document (folio 52) dated 1982 relates to the pension eligibility of former members of the Forces of the Interior. The Tribunal notes the comment - at that time – that "it appears from the information and evidence available that former members of the Forces of the Interior would be unlikely to have any historic documentation within their possession which would confirm their eligible service". The Respondent submitted that notwithstanding that comment, some documentary evidence was available "to some extent at least". At folio 59, reference is made in an unsourced document to the effect that after the war, the Dutch government "registered all persons who had been involved in the resistance".
The Tribunal accepts the final submission of the Respondent that the circumstances of the Applicant's activities with the Dutch resistance movement, on the evidence available to the Tribunal, are significantly different to those in the matter of Boots. The latter was supported by documentation that confirmed his membership of the LO, and by supporting evidence from former members of the LO in respect of the general procedures of that organisation. Mr Beutler does not have the benefit of such evidence in support of his claim, although he gave considerable evidence as to his activities after the commencement of the railway strike in September 1944. The standard of proof to be applied by the Tribunal in reaching a decision is that of reasonable satisfaction, on the balance of probabilities.
Following the reasoning in Boots (supra) by Enfield J that the Tribunal must make due allowance for the circumstances existing at the time in a part of Holland still under German occupation, it can be deduced that once the railways ceased operations in September 1944, the Applicant was liable to deportation to Germany to augment labour resources for the construction of defences. As Mr O'Keefe postulates, the employees of the Dutch railways would have feared German reprisals and gone into hiding. Mr Beutler gave evidence to this effect, stating that he rarely visited his parents thereafter, sleeping 'in haystacks, under floors, …'. When he did, he spoke of a warning system operated by the neighbouring dentist, the same person who asked him to participate in resistance activities. Mr Beutler was able to describe his resistance activities, which took place in small groups by direction. In response to the Respondent, he insisted that such activities were coordinated by an organisation, the name of which he was unaware, rather than being spasmodically initiated by individuals.
Why the Applicant's resistance service is not recorded is a matter for conjecture. The Respondent has noted that supporting documentation was not always available, and the Tribunal takes account of the letter (Exhibit R2) dated 12 September 2000 wherein Drs Hans de Vries of the Netherlands Institute for War Documentation states, "Because the activities of the resistance organisations had to be carried out in secret, no lists of members were compiled". Whilst this statement is at variance with the aforesaid reference to the Stichting certificate (Re Boots (supra), it must be given adequate weight as a formal statement by Dutch authorities. One might conclude that the acceptance into service by the Royal Netherlands Navy of the Applicant established his credentials as a loyal Dutchman, although it cannot be said, on the available evidence, that it confirmed his activities with the resistance.
On the evidence before it, the Tribunal is satisfied that Mr Beutler was involved in resistance activities after the great railway strike commenced. As to whether he was acting under instructions from a superior organisation, such as the Forces of the Interior, or in a local and unofficial capacity, weight is given to the opinion of Mr O'Keefe, who variously states in his reports, that the Applicant would have been unlikely to have participated in the collection of air dropped weapons except as a member of an organisation forming part of the Forces of the Interior, that his description of his activities fitted those undertaken by the RvV (which had played a role in the organisation of the railway strike), and that security considerations could have been the very reason that he was not aware of the name of the organisation.
On the evidence, the Tribunal finds to its reasonable satisfaction that Mr Beutler undertook resistance activities following the commencement of the great railway strike, which continued until the cessation of hostilities in Europe, and on the balance of probabilities, he was a member of one of the organisations forming the NBS or Forces of the Interior. The opinion of Mr O'Keefe that "if Mr Beutler did take part in resistance work, and this included the collection of arms and ammunition dropped by allied aircraft, it seems likely that he would have preferred this work as part of the NCB "is considered plausible".
The Respondent conceded during the hearing that Mr Beutler was an allied veteran by reason of his service in the Royal Netherlands Navy and thus he meets the criteria of subsection 5C(3) as ameliorated by subsection 5R(2) and it follows, 5C(1). Notwithstanding that his naval service gives the Applicant allied veteran status, it is well to consider whether the Applicant meets the conditions of subsection 5C(1)(b) in respect of continuous full time service, of 5C(3)(d) in respect of appointment or enlistment into an auxiliary force and 5C(3)(g) in respect of conformation to the rules and conventions of warfare, as regards his service with the resistance.
Once discharged from the railways, Mr Beutler's only 'employment' was in assisting the resistance movement, as and when called upon. There is no evidence to suggest he had any other 'occupation' during this period. Hence he meets the criteria of having performed 'fulltime continuous service'. In regard to his enlistment in an auxiliary force, the Tribunal follows the reasoning of O'Connor J in Re Boots (supra) as previously referred to; the evidence points to a degree of formalisation, within the demands of secrecy, as would be procedurally adequate to meet the formality required by the legislation. He was asked by individuals, and notably the dentist, to join the resistance; he was given minimal further information as one might expect in the environment of an occupied territory where secrecy was essential, and details of the organisation would be confined to those with a need to know, and he was directed in his activities.
The matter as to whether the auxiliary to which the Applicant gave service conformed to the rules and conventions of warfare was not raised in the hearing; in the absence of any evidence to the contrary, the Tribunal follows the decision in Re Boots (supra), where O'Connor J was faced with the same question. In evidence before her, the two members of the LO admitted to having "little knowledge of these conventions during wartime". The Commission on that occasion submitted that this lack of knowledge led to the inevitable conclusion that the LO was not subject to the conventions. Counsel for the applicant submitted that under section 5R(2), decisions in relation to the rules of warfare would be taken by the central authority of the auxiliary, which would be bound by the conventions. O'Connor J accepted that the auxiliary – LO in this case – would be "subject to the conventions to the degree to which they complied", this view also being expressed by Einfeld J in Boots (supra).
Finally, did the Applicant incur danger as required to meet the conditions of qualifying service under subsection 7A(1)(c)? The answer must be in the affirmative. During his resistance activities, he was at all times in danger of being arrested and deported to Germany; but in the event, the Respondent has conceded that in the circumstances of carrying out subversive activities in an occupied territory, then subject to a decision by the Tribunal that he has met all other criteria, the Applicant would have incurred danger "simply by the nature of the activities". The Tribunal concurs with this concession.
For the reasons given above, the decision under review is set aside and in substitution therefore, the Tribunal decides that the Applicant satisfies the requirement for qualifying service pursuant to section 7A of the Act, and is entitled to an age service pension under subsection 36(1).
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  16 February 2001
Date of Decision  23 April 2001
Solicitor for the Applicant         Self Represented
Solicitor for the Respondent    Mr J Marsh