Broadbent and Repatriation Commission - [2000] AATA 1092

DECISION AND REASONS FOR DECISION [2000] AATA 1092

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D1998/13

VETERANS' APPEALS DIVISION          )
           Re      HARRY ROBERT BROADBENT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date12 December 2000
PlaceAlice Springs

Decision      THE TRIBUNAL DECIDES THAT the decision under review should be set aside and there be substituted a decision that the applicant had qualifying service in relation to his service in Malaya within the terms of section 7A(1)(a) of the Veterans' Entitlements Act 1986.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 1092/2000
CATCHWORDS
VETERANS' AFFAIRS - service pension refused by respondent on the basis that the veteran had not rendered qualifying service - whether veteran rendered qualifying service – service in Malaya – not awarded British General Service Medal with Malay clasp.
Veterans' Entitlements Act 1986 s 7A(1A), 7A(1)(a)(iii)

REASONS FOR DECISION

12 December 2000 Mr K L Beddoe (Senior Member)

The applicant seeks review of a decision of a delegate of the respondent refusing a claim for service pension. The claim was refused on the basis that the applicant did not render qualifying service within the terms of section 7A of the Veterans' Entitlements Act 1986 ("the Act").
There is no dispute that the applicant rendered operational service from 12 October 1961 to 8 December 1962. Nor is there any dispute that he served with 2 Battalion, Royal Australian Regiment ("2RAR") on the Thai-Malaya Border during the operations against communist terrorists in the Malay jungle (the "Emergency").
There is also no dispute that the applicant was allotted for duty in an operational area within the area described in item 3, column 1, Schedule 2 of the Act. The area there referred to is the then Federation of Malaya and the then Colony of Singapore.
The parties are also agreed that the applicant was not awarded and is not eligible to be awarded the British General Service Medal with Malay clasp. Exhibit A makes it clear that the British General Service Medal was awarded for one or more days service by Army personnel on the strength of a unit in the Federation of Malaya, in the period 16 June 1948 to 31 July 1960.
It is reasonable to infer that the award ceased on 31 July 1960 because of a proclamation by the Federation of Malaya dated 30 July 1960 which repealed the Emergency Regulations Ordinance 1948 (Exhibit B) with effect from 31 July 1960.
That the Federation of Malaya believed the Emergency was finished was of course a matter for that Federation, but it appears that view was not shared by the Australian Government. Prime Minister Menzies explained to the Parliament on 1 September 1960 that Australian forces remained in Malaya as part of the Commonwealth Strategic Reserve. Further, the Internal Security Act 1960 came into force in Malaya on 1 August 1960 allowing the Malayan Government to deal with insurgency in its border areas and for this purpose it was to be assisted by the Commonwealth Strategic Reserve (Exhibit F).
There is no dispute that 2 RAR faced hostile forces of the enemy on the Malay-Thai border after 31 July 1960. In particular the military operations being conducted on the border during the Emergency continued, unchanged, after 31 July 1960. Although stationed at Terendak Camp, Malacca, the battalions operations were conducted in the Malay-Thai border areas (see generally Exhibit E).
The Applicant's Submissions
The applicant asserts that the unilateral proclamation by the Federation of Malaya on 30 July 1960 changed nothing. The Emergency continued as it had previously and Australian forces continued to face the hostile forces of the terrorists.
In so far as the Act effected a cut off date by making the award of the British General Service Medal with Malay clasp (S 7A), it ignored the reality of the continuing factual situation as acknowledged by Prime Minister Menzies.
The applicant's representative, Mr Duthie, also relies on the report of findings of a Government enquiry and a recent announcement by the Government that the law is to be changed to recognise service of defence personnel such as the applicant as qualifying service. Details of the report and the Government's subsequent announcement are not before the Tribunal but, Mr Doube, who represented the respondent did not dispute the existence of the report and the Government announcement. He was unable to say when the legislation would be presented to the Parliament.
Mr Duthie also submitted that if the Act is amended with effect from 1 January 2001, as apparently announced by the Government, his client should be entitled to have his service pension back dated to 15 May 1997 reflecting the applicant's claim.
The Respondent's Submissions
Because the applicant has not been and is not eligible to be awarded the British General Service Medal with Malay clasp, he cannot satisfy the essential requirement in section 7A(1A) of the Act.
The respondent's representative informed the Tribunal that the Government proposed a change in the law. The Tribunal's research confirmed this. A Bill was introduced into the House of Representatives on 6 June 2000 which proposed, amongst other amendments, that sub-section 7A(1A) be repealed. It is the Tribunal's understanding that the Bill is still being considered by the Parliament and has not received Royal Assent.
Consideration
It is clear that there is a serious inconsistency between sub-section 7A(1A) and paragraph 7A(1)(a)(iii) when read in conjunction with Item 3 Schedule 2.
Item 3 refers to a period of service from 1 September 1957 to and including 27 May 1963. It is clear enough on the evidence that the British General Service Medal with Malay Clasp was not awarded in respect of service after 31 July 1960 (Exhibit A). It is reasonable to infer that this position arose out of the unilateral proclamation by the Federation of Malaya to the effect that the Emergency was taken to have ceased on 31 July 1960. The proclamation declared that the need for the Emergency Regulations Ordinance 1948 had ended and the Ordinance was thereby repealed. That was, in my view a legislative recognition that the Emergency had ended. As Prime Minister Menzies explained in Parliament responding to a question on notice on 31 August 1960 the repealed ordinance was replaced by the Internal Security Act which came into force on 1 August 1960.
There is therefore a fundamental ambiguity between the operation of sub-section 7A(1A) which does not refer to a closing off date in the sub-section and Item 3 of Schedule 3 which does include a closing off date with a clear intention by the Parliament that service to and including 27 May 1963 was relevant service for the purposes of paragraph 7A(1)(a)(iii) of the Act.
In my view the apparent inconsistency can be resolved by reading down sub-section 7A(1A) so that it only applies to service within the terms of paragraph 7A(1)(a)(iii) up to 31 July 1960. Service to that date will be qualifying service only where sub-section 7A(1A) is satisfied. For service after 31 July 1960 sub-section 7A(1A) should be regarded as having no operation because the British General Service Medal with Malay Clasp could not be awarded for such service.
If the Parliament had intended that only service up to 31 July 1960 was to be qualifying service it would have said so in Item 3 Schedule 2 or paragraph 7A(1)(a)(iii). Clearly that was not the intention of the Parliament. The intention was to include service to 27 May 1963. Given that the legislation is beneficial legislation that intention should be given effect so as to remove the ambiguity (Cooper Brookes (Woolongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297).
For these reasons I have decided that the decision under review should be set aside and there be substituted a decision that the applicant had qualifying service in relation to his service in Malaya within the terms of Item 3 Schedule 2 and section 7A(1)(a) of the Act. The matter will be remitted to the respondent to give effect to the Tribunal's decision. The date of effect will be 15 August 1997 – the date the applicant lodged his claim.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  9 November 2000
Date of Decision  12 December 2000
Applicant  Mr R Duthie, Advocate
Respondent  Mr G Doube, Departmental Advocate