Busuttil; Repatriation Commission and (Veterans' entitlements)

Busuttil; Repatriation Commission and (Veterans' entitlements) [2019] AATA 6109 (1 August 2019)

Division: VETERANS' APPEALS DIVISION
File Numbers:     2018/1046
Re:         Repatriation Commission
APPLICANT
And        Joseph Busuttil
RESPONDENT

Decision

Tribunal:          Deputy President J W Constance
Mr S Evans, Member
Date:    1 August 2019
Date of written reasons:         4 February 2020
Place:   Sydney

For the reasons given orally at the conclusion of the hearing, the Tribunal decides that:

1)        the decision of the Veterans’ Review Board dated 29 November 2017 is set aside;
2)        in substitution it is decided that:
a)        the decision of the delegate of the Repatriation Commission dated 30 October 2015 is set aside; and
b) the matter is remitted to the Repatriation Commission for reconsideration in accordance with the Tribunal’s reasons for decision and the direction that Mr Busuttil is a person who has rendered hazardous service as a member of the Defence Force in accordance with section 69A of the Veterans’ Entitlements Act 1986 (Cth).

...........................[sgd].............................................

Deputy President J W Constance

Catchwords

VETERANS' ENTITLEMENTS – application for review of decision of Veterans’ Review Board that respondent is eligible for a pension on the basis that he rendered hazardous service as a member of the Defence Force – whether respondent rendered hazardous service – whether respondent a member of the Defence Force at the relevant times – respondent a member of the Royal Australian Navy Reserve when posted to Cambodia in 1994 as part of defence cooperation program – consideration of determinations of hazardous service made by the relevant Ministers – decision under review set aside and substituted with a direction that the respondent rendered hazardous service as a member of the Defence Force

Legislation

Defence Act 1903 (Cth)

Veterans' Entitlements Act 1986 (Cth)

Veterans’ Entitlements Act 1986: Determination of Hazardous Service, 9 November 1993

Veterans’ Entitlements Act 1986: Determination of Non-Warlike Service: Operation Banner, 21 June 2000

Veterans’ Entitlements (Non-warlike Service) Determination 2019, 13 March 2019

REASONS FOR DECISION

(revised from the transcript)

Deputy President J W Constance

Mr S Evans, Member

4 February 2020

introduction

Mr Busuttil applied for a pension under the Veterans’ Entitlement Act 1986 (Cth) in October 2015. The basis for his application was his claim to have performed the necessary service in Cambodia between 21 November 1994 and 2 December 1994 as a member of the Australia Defence Force. The Veterans’ Review Board set aside an earlier decision of a delegate of the Repatriation Commission, made on 30 October 2015, that Mr Busuttil was not entitled to a pension under the Act. By decision dated 29 November 2017, the Board decided that Mr Busuttil was a “member of the Forces” within the meaning of the Act.
The Board remitted the matter to the Commission for assessment of the substantive entitlement matter and assessment of the rate (if any) at which pension was to be paid. On 21 February 2018, the Commission applied to the Tribunal to review the Board’s decision.
For the reasons which follow, the decision under review will be set aside but the effect of our decision will be similar. The reason that it is being set aside is that we take the view that the direction to the Commission can be worded rather more precisely than that worded by the Board.

background

Findings of fact, unless otherwise stated in these reasons, are based on the evidence of Mr Busuttil, who provided a statement dated 22 November 2016 and gave evidence. We found him to be an honest witness who gave his evidence to the best of his recollection.
Mr Busuttil enlisted in the Royal Australian Navy Reserve on 10 May 1983 and was discharged on 16 April 2013 after reaching the compulsory retirement age. He served continuously during that period as a member of the Reserve.
By November 1994, Mr Busuttil held the rank of Lieutenant (Weapons Electrical and Marine Engineering). There were two relevant signals transmitted that month between various sections of the Navy. The first of those signals is dated 8 November 1994 and read, in part:
SUBJ: READY RESERVE POSTING, LEUTWE J BUSUTTIL C136285
A. MAP(C) FAX 091/94 DATED 7 NOV 94
…
1. REQUEST THE FOLLOWING POSTING BE PROMULGATED:
NAME: BUSUTTIL RANK: LEUT WE P/NO: C136285
TO UNIT: MHQAUST FOR DUTIES WITH MARITIME ASSIST. PROJECT (CAMBODIA)
START DATE: 21NOV94 END DATE: 02DEC94
…
TRAVEL COMPONENT: SYDNEY-CAMBODIA-CAMBODIA-SYDNEY
2. FOR HMAS KUTTABUL. ONCE PROMULGATED, REQUEST ARRANGE PAY, ACT MEDICAL AND ADVISE MEMBER
3. TRAVEL, SUBSISTENCE AND ALLOWANCES WILL BE ARRANGED
The second signal is dated 13 November 1994 and read, in part:
SUBJ: RESERVE OFFICER POSTING – LEUT WE J BUSUTTIL C136285
…
1. LEUT BUSUTILL [sic] IS POSTED FROM SHORE (READY RESERVE) TO MHQAUST FOR DUTIES WITH MAP(C) 21NOV-02DEC94 SUBJECT TO MEDICAL FITNESS AND AVAILABILITY OF SERVICE ACCOMMODATION
It is not in dispute that Mr Busuttil did travel to Cambodia and was present in that country from 21 November 1994 to 2 December 1994, after which he returned to Australia.

Legislation and determinations

We will come to further detailed facts later in these reasons. Looking at the applicable legislation, Part IV of the Act deals with the provision of pensions for members of the Defence Force. In particular, section 69A provides:
(1) This Part applies to a person who has rendered or is rendering hazardous service as a member of the Defence Force.
(2) This Part so applies whether the hazardous service is rendered before or after the terminating date.
Subsection 68(1) defines hazardous service as:
hazardous service has the same meaning as in subsection 120(7).
Subsection 120(7) of the Act reads:
(7) In this section:
hazardous service means service in the Defence Force, before the [Military Rehabilitation and Compensation Act 2004] commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.
The relevant determination is that made on 9 November 1993 under the heading “Veterans’ Entitlements Act 1986: Determination of Hazardous Service” and reads:
I, JOHN PHILIP FAULKNER, Minister for Defence Science and Personnel, under paragraph 120(7)(b) of the Veterans’ Entitlements Act 1986 (the Act), hereby determine service in the Defence Force of the following kind to be “hazardous service” for the purpose of section 120 of the Act, namely, service as a member of the Defence Force on or after 8 October 1993 while in the area comprising Cambodia and the areas in Laos and Thailand that are not more than 50 kilometres from the border with Cambodia.
We note that this determination remained in force at least until June 2000, when a determination was made on 21 June 2000 under the heading “Veterans’ Entitlements Act 1986: Determination of Non-Warlike Service: Operation Banner”. It reads:
I, Bruce Scott, Minister for Veterans’ Affairs for and on behalf of the Minister for Defence:
a.   revoke the determination signed by the Minister for Defence Science and Personnel on 9 November 1993 in relation to OPERATION BANNER; and
b.   Determine that service rendered as a member of the ADF on OPERATION BANNER during the period 8 October 1993 to 4 October 1999 in the area of operations specified below is non-warlike service for the purposes of subsection 5C(1) of the Veterans’ Entitlements Act 1986.
        The area of operations comprises Cambodia and the areas of Laos and Thailand that are not more than 50 kilometres from the border with Cambodia.
The Commission argued that the relevant determination in this matter was that made on 13 March 2019 by Darren Chester, Minister for Defence Personnel, and headed “Veterans’ Entitlements (Non-warlike Service) Determination 2019”. Relevantly, it includes in Schedule 1 a description of the following service as “non-warlike”:

Non-warlike service

Item

Name of operation

Nature of operation

Area of operation

Period

Banner

Defence Force contribution to the Cambodia Mine Action Centre and the United Nations Military Liaison Team

Cambodia and the areas of Laos and Thailand that are not more than 50km from the border with Cambodia

8 October 1993–4 October 1999

We do not accept the argument put on behalf of the Commission that the relevant determination in this matter is the determination dated 13 March 2019. Under section 12 of the Legislation Act 2003 (Cth), there are provisions relating to the commencement of legislative instruments and notifiable instruments. The relevant provisions are subsections (1A), (2) and (4). Subsection (1A) reads:
(1A) Despite any principle or rule of common law, a legislative instrument or notifiable instrument may provide that the instrument, or a provision of the instrument, commences before the instrument is registered.
Note:

The effect of this subsection is to allow legislative and notifiable instruments to commence retrospectively (subject to subsection (2)). This subsection is subject to a contrary provision (see subsection (4)).

Subsection 2, headed “Retrospective application”, reads:
(1)     However, if a legislative instrument or notifiable instrument, or a provision of such an instrument, commences before the instrument is registered, the instrument or provision does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) to the extent that as a result of that commencement:
(a)     the person's rights as at the time the instrument is registered would be affected so as to disadvantage the person; or
(b)     liabilities would be imposed on the person in respect of anything done or omitted to be done before the instrument is registered.
Subsection (4) reads:
(4) The effect of subsection (1A) or (2) in relation to an instrument is subject to any contrary provision in an Act.
We interpret those provisions to effectively provide that unless it is stated in the Act, the provisions of the later determinations do not remove any rights Mr Busuttil may have accrued under the 1993 determination. If the argument put on behalf of the Commission is correct, Mr Busuttil would, in fact, have lost any such rights as he may have accrued under the 1993 determination, it being clear that the 2019 determination does not cover him for reasons which we will come to.
We turn then to the question whether the 1993 determination covers the service rendered by Mr Busuttil. The determination covers service rendered on certain dates and in certain areas – factual questions which are not in dispute in this matter. The issue in this matter is whether section 69A of the Act applies to Mr Busuttil, which is answered by asking whether Mr Busuttil rendered “service as a member of the Defence Force” within the meaning of the 1993 determination.
Subsection 5C(1) of the Act relevantly provides:
"Defence Force" has the same meaning as in the Defence Act 1903.
Subsection 4(1) of the Defence Act 1903 (Cth) relevantly provides:
Defence Force means the Australian Defence Force.
Section 17 of the Defence Act relevantly provides:
The Australian Defence Force (or ADF) consists of the following arms:
(a) the Royal Australian Navy;
Section 18 of the Defence Act provides:
The Royal Australian Navy (or RAN) consists of:
(c) the Naval Reserve,
As we have said, it is not in dispute that Mr Busuttil was a member of Naval Reserve, nor that he was in Cambodia, in the period covered by the 1993 determination.

Evidence and findings of fact

Turning now to the evidence of Mr Busuttil, he said that prior to November 1994, and as part of the events leading up to that time, the Australian Government agreed to assist the Cambodian Government to set up an apprentice training school for Cambodian Navy sailors. Around this time, the apprentice training school in Sydney had closed down. It was decided to take the equipment from that school to the school in Cambodia.
At the time, Mr Busuttil was deputy to Lieutenant Commander (LCDR) Ogrizek. LCDR Ogrizek and Mr Busuttil went to Cambodia together in November 1994 and were there for the period referred to earlier in these reasons. They took part in the Maritime Assistance Program Cambodia. At that time, and for a long time thereafter, Mr Busuttil had not heard of nor did he know anything about Operation Banner.
When asked as to the lead up to his departure in November 1994 and, in particular, what training he received, Mr Busuttil said he had a meeting with an intelligence officer from the Navy explaining the conditions, rules and customs of Cambodia. He was told expressly that there was no memorandum of understanding permitting him as a member of the Defence Force to carry a weapon in Cambodia. For that reason, no weapon was issued to him.
Mr Busuttil was issued with dog tags and two cards he described as the amber and red cards, which set out the terms of engagement. These two cards are in evidence and are marked Exhibit R1 and Exhibit R2, respectively. The amber card is headed “OFOF –LOW LEVEL OPS IN AUSTRALIA – UNOPPOSED DEPLOYMENT OVERSEAS”. It states that one must use only the minimum force necessary, and makes provision for the circumstances of firing weapons, including warning before firing, firing after warning and firing without warning. The red card also regulates the use of force, particularly the firing of weapons.
Mr Busuttil was also issued with a topographical map of the area in which he would be moving and was informed that he would be travelling outside Phnom Penh. He was told he would be looked after by the Cambodian Navy. Mr Busuttil described the Cambodian Navy as being more like our Army. When Mr Busuttil arrived in Cambodia, he worked out of the Australian Embassy in Phnom Penh. After a detailed briefing he was told he would be travelling to Sihanoukville, and that this was an extremely dangerous area.
Mr Busuttil was given a radio, which had channels to contact a United Nations unit as well as Barracks back in Sydney. At all times when Mr Busuttil was in Cambodia, LCDR Ogrizek was his superior officer and he took instructions from him. He said that he was not actually issued orders but, “of course”, had any orders been issued to him by LCDR Ogrizek he would have obeyed them.
In addition to the briefing he was given prior to leaving Australia, Mr Busuttil was asked on behalf of the Navy to bring back as many photographs of his travels as possible. He and LCDR Ogrizek were given a high-quality camera and a Dictaphone. Mr Busuttil took many photographs and made recordings. They were also provided with film for the camera and the film was processed by the Navy on their return. In addition, Mr Busuttil assisted in the preparation of two classified project reports on their travels and experiences in Cambodia.
In his statement dated 22 November 2016, Mr Busuttil said:
9.      The deployment to Cambodia involved service on missions in and around Phnom Penh and also service outside of Phnom Penh to the Port District Area.
10.     In order to travel to the Port District Area I routinely was required to undertake an extremely hazardous journey in armoured vehicles from my billet in Phnom Penh which is commonly known as “going outside the wire”.
11.     The deployment for the months of November and December 1994 was extremely dangerous and I was required to carry loaded firearms at all times whilst deployed in country (Cambodia).
12.     When going outside the wire, we were required to travel in armoured vehicles with machine gun fixed to the roof of the convoy vehicles.
Later in his statement, in reference to some photographs thereto annexed, he said:
13.
14.     In one photo in particular, I am carrying a grenade launcher which is necessary, as well as carrying side arms and long arms with live ammunition due to the threat of being involved in fire fights.
15.     The firearms were supplied by the Cambodian Navy …
Mr Lawson gave evidence on behalf of the Commission in the form of a statement dated 25 July 2019 and evidence at the hearing. We found Mr Lawson to be an honest witness and are satisfied that he gave his evidence to the best of his recollection.
Mr Lawson is the Deputy Director, Nature of Service, within the Military Strategic Commitments Division of the Department of Defence. As part of his role, he is responsible for recommending the nature of service classification for Australian Defence Force Operations to the Chief of the Defence Force and the Minister for Defence. He has extensive operational experience in the Navy.
The statement of Mr Lawson was taken into evidence subject to objections made by Counsel for Mr Busuttil to paragraphs [8] to [13] inclusive. At various points in his statement Mr Lawson simply extracts parts of documents that are already in evidence before us and, at others, he states his opinion on matters of law. We have not taken his opinion of matters of law into account. Whilst we do not doubt his expertise in aspects of military operations, of course, matters of law are for the Tribunal. We do take into account paragraph [13] on the basis that it is a matter on which Mr Lawson is entitled to give evidence and, in fact, assists Mr Busuttil.
At paragraph [13] Mr Lawson states, in part:
13. The fact that Mr Busuttil was in the area of operations does not, of itself, confer operational conditions of service or recognition that he was part of a specific operation (in this case OPERATION BANNER). Visitors and other personnel who go to an operational area and who undertake tasks that are not specifically part of an operation are generally referred to as visitors.
Mr Lawson continued:
14. The official history of the period in Cambodia indicates that the Defence Cooperation Program (DCP) of support to establish a maintenance workshop at the Royal Cambodian Armed Force (RCAF) Naval Base at Ream was run by the Royal Australian Navy. This project was approved by Defence Minister Robert Ray on 22 February 1994 and was to be funded by the DCP. LCDR Ogrizek began work as the Project Officer in July 1994 and he travelled to Cambodia in December 1994.
We note that this evidence supports Mr Busuttil’s evidence as to the project for which he travelled to Cambodia and indicates that there were Australians in Cambodia who were not part of Operation Banner. We reiterate that at no stage did Mr Busuttil suggest he was part of that operation.

issues

As we have already identified, the issue for resolution in this application is whether section 69A of the Act applies to Mr Busuttil. That raises the question whether Mr Busuttil rendered “service as a member of the Defence Force” within the meaning of the 1993 determination, noting, again, that it is not in dispute that Mr Busuttil was in Cambodia during the period covered by the determination.
The Commission argued very strongly that Mr Busuttil was not in Cambodia as part of Operation Banner and much of Mr Lawson’s evidence was directed to this end.
We agree and, in fact, proceed upon the basis that Mr Busuttil was not part of that operation. However, the question is not whether he was part of an operation or not but whether, in accordance with the 1993 determination, he rendered service as a member of the Defence Force.
In our view, all evidence points to this being the case. Mr Busuttil was a member of the Naval Reserve at all relevant times. He was deployed in accordance with directions in the signals transmitted in November 1994. He was briefed by Navy personnel before he left for Cambodia. He was issued with the amber and red cards giving him directions as to how, and in what circumstances, he was to use force.
At all relevant times, Mr Busuttil was accompanied by and under the command of LCDR Ogrizek. Prior to his leaving Australia, Mr Busuttil was issued with equipment by the Navy in the form of a camera, film and a recorder, and given directions as to the use of the equipment. On his return, with LCDR Ogrizek he provided a two-volume report to the Navy. When in Cambodia he was armed, albeit with arms issued by the Cambodian Navy. He was transported to and from Cambodia by the Navy.

On the basis of these facts, we are satisfied that section 69A of the Act applies to Mr Busuttil as he rendered hazardous service in Cambodia at all relevant times.

Conclusion

The decision of the Veterans’ Review Board dated 29 November 2017 will be set aside.
The matter will be remitted to the Repatriation Commission for reconsideration in accordance with the findings in these reasons for decision and the direction that Mr Busuttil is a person who has rendered hazardous service as a member of the Defence Force in accordance with section 69A of the Veterans’ Entitlements Act 1986 (Cth).

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Mr S Evans, Member

...........................[sgd].............................................

Associate

Dated: 4 February 2020

Dates of hearing:

30 and 31 July 2019

Solicitors for the Applicant:

Mr B O'Brien, Moray & Agnew Lawyers

Counsel for the Respondent:

Mr T Saunders

Solicitors for the Respondent:

KCI Lawyers

[2019] AATA 6109

1 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Remedies