Clota and Repatriation Commission
[2002] AATA 140
•5 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 140
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/298
VETERANS' APPEALS DIVISION )
Re John Clota
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr D.J Trowse (Member)
Date5 March 2002
PlaceAdelaide
Decision The decision under review is affirmed.
(signed)
D.J TROWSE
(Member)
CATCHWORDS
VETERANS' AFFAIRS - qualifying service - gold card – whether the applicant incurred danger from hostile forces of the enemy
Veterans' Entitlements Act 1986, s5B(1)(b), s7A(1)(a)(i), s85(4A), s120(4)
Repatriation Commission v Thompson (1988) 82 ALR 352
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
5 March 2002 Mr D.J Trowse (Member)
The decision to be reviewed in this matter is that of a delegate of the respondent dated 15 December 2000 who found that the applicant had not rendered 'qualifying service' during World War 2 and therefore was not eligible for the issue of a Gold Card.
The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the documents tendered, namely the respondent's statement of facts, issues and contentions dated 8 January 2002, and a statement from Robert Piper, Military and Aviation Historian, dated 9 January 2002 with Annexures A and B. Also, the Tribunal had the benefit of oral evidence from Mr Clota and Mr Piper. Mr Clota, with the assistance of his son, represented himself. The respondent was represented by Mr G. Doube.
LegislationA veteran's entitlement to the Gold Card is determined in accordance with the provisions contained in sub-section 85(4A) of the Veterans' Entitlements Act 1986 (the Act) which requires, inter alia, that the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in sub-section 5B(1). For present purposes, paragraph (b) of sub-section 5B(1) defines 'period of hostilities' as
"(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included);"
Relevant to this reference is sub-section 7A(1)(a)(i) which provides that a person has rendered qualifying service if the person has, as a member of the Defence Force:
"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;
…"
According to views expressed on the respondent's behalf at the hearing, and which the Tribunal shares, the above sub-section contains two limbs, both of which require compliance. It was contended that, in addition to the veteran incurring danger from enemy forces, he must have been engaged in direct operations against the enemy. Notwithstanding the two limb hypothesis, it is clear that the decision of the delegate was foundered solely on the absence of danger and that, before this Tribunal, the respondent placed similar reliance. However, the Tribunal notes that the respondent was initially of the opinion that the first of the two limbs remained unsatisfied and that, seemingly, such an outlook was based on the notion that the term 'service in the field' does not extend to home based operations of the kind performed by the applicant as compared with those associated with a war zone. The respondent's concession that the applicant had been involved in operations against the enemy was forthcoming after the conclusion of the hearing.
The full Federal Court had cause to consider the term 'incurred danger' in Repatriation Commission v Thompson (1988) 82 ALR 352 and its pronouncements at p.356 are apposite:
"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 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."
The standard of proof to be applied by the Tribunal is specified in sub-section 120(4) of the Act, that is, it must be to the Tribunal's reasonable satisfaction. A standard of proof on the balance of probabilities is therefore applicable (Repatriation Commission v Smith (1987) 74 ALR 537).
Mr Clota's ServiceMr Clota was a Leading Aircraftsman, Clerk Signals, with the RAAF from 28 December 1943 until 4 May 1946. He did not serve outside Australia nor did he render service in an area at a time when the respondent is prepared to concede that veterans incurred danger from hostile forces. However, Mr Clota's service did include an attachment to 76 Operational Base Unit at Exmouth Gulf in Western Australia. That posting extended over the period March 1944 to December 1945 and, according to the applicant's submission, it was there that he incurred danger from hostile forces.
The base, which was located in the area of Onslow, was in close proximity to a radar station positioned on the North West Cape and an American submarine base which operated out of the gulf waters. Also, it appears that the base was home to a squadron of Dutch fighter bombers for a three to four month period during the applicant's posting. In the understanding of the applicant, the bombers were part of a force to strike Japanese targets in Indonesia.
Throughout the whole of his service at 76 Operational Base Unit, the applicant's duties related solely to the coding and de-coding of messages and their transmission. Indeed, it was while engaged in those activities in February 1945 that a telephone call was received at 10.00 pm from the radar station advising that an unidentified aircraft was in the region. The alert was raised and a total black-out lasting one hour was imposed during which the applicant remained at his desk. Upon the lifting of the ban, the applicant immediately resumed his duties. The aircraft was never identified nor did contact or conflict of any kind ensue. According to the applicant, it is this incident that caused him to incur danger of the kind envisaged by the sub-section.
Evidence of Mr R PiperMr Piper, who impressed with his general knowledge and depth of detail, gave an overview of events occurring in the Exmouth Gulf area during World War 2. On the issue of air attacks he advised of three air raids and supplied the following detail:
"20 May 1943 - Two aircraft at between 2255 and 2350 hours. Exmouth Gulf area. No bombs dropped. Reconnaissance.
21 May 1943 - One aircraft in the Onslow area which also flew over 74 OBU during the period 2255 to 2355 hours. No bombs dropped.
15-16 September 1943 - One aircraft around midnight. Eight bombs dropped on a tidal flat 4 to 5 miles south west of Onslow."
The witness also stated that the last Japanese air raid on any part of Australia took place on the 12 November 1943. Notably, all of the recorded enemy flights, be they bombing or otherwise, occurred at times well before the applicant's arrival at Exmouth Gulf.
Mr Piper had no record of the flight of the unidentified aircraft in February 1945. However, he did refer to the common error of some allied pilots of not activating the instrument called "IFF" which stands for Identification, Friend or Foe. This equipment emits a small electronic pulse, which is picked up by radar. Failure to switch on will lead to a friend being treated as a foe and the raising of an alarm. Having regard to the state of the war then being waged and the improbability of enemy aircraft being so distant from the actual battle lines, Mr Piper expressed the view that the February alert may have resulted from the kind of error as described.
When asked as to the possibility of the applicant having contact with enemy forces during his service at Exmouth Gulf, the witness replied that there is no record of enemy forces, ships or aircraft operating in that area during 1944-45. Therefore, it was the opinion of Mr Piper that the applicant could not have been in direct or indirect contact with enemy forces during the stipulated period. He continued on with the statement that the Exmouth Gulf area was considered a quiet backwater by 1944-45 as the war against Japan had reached the Philippines and Japan itself.
Applicant's CaseOstensibly, the applicant relies on the February 1945 incident and the resultant perceived danger. Nevertheless, the Tribunal is left with the distinct impression that the applicant was more concerned with the need to proclaim his conception of the unfairness of the legislation. Clearly, the applicant seeks acknowledgment of his service, including the receipt of a Gold Card. A denial is viewed as discriminatory because of the command structure that dictated a serviceman's posting. By reason of that structure, it was contended that exposure to hostilities should not be a pre-requisite to the issue of a Gold Card and that to apply the law in the current manner is not in the spirit of the legislation. Furthermore, the applicant submitted that he had been disadvantaged by a change of the relevant legislation in 1991 and that, had he applied for a Gold Card prior to that alteration, he would have been so entitled.
The Tribunal's ConclusionThe respondent and, for that matter, the Tribunal are bound to apply the legislation as it appears in the Act. Certainly, as far as the legislation now under consideration, they are not possessed with any power of discretion.
Subject to one qualification, which was adverted to in the case of Thompson supra and is not relevant to the matter now under consideration, no word in sub-section 7A(1)(a)(i) of the Act is ambiguous, and no ambiguity arises from the context in which the provision is found. The words mean what they say, no more no less, and they should be so read. It is accepted that the intention of the legislation may have a role in the decision making process where there is some ambiguity in the statute. However, as stated, this is not the present situation. Moreover, the Tribunal is of the opinion that the clear and precise wording of the sub-section, makes it abundantly clear that the intention of the legislation was to benefit veterans who had incurred danger from hostile forces of the enemy. This conclusion as to intention also disposes of the argument advanced by the applicant regarding the spirit of the legislation.
While acknowledging that a re-write of the Act took place in 1991, the Tribunal is satisfied that the legislation pertaining to Gold Card entitlement has effectively remained unaltered. For this reason, the applicant's claim of being disadvantaged is rejected.
On all the material before it, the Tribunal is not reasonably satisfied that the aircraft involved in the February 1945 incident was a hostile force. Nor, applying the binding objective test declared in Thompson supra can the Tribunal be reasonably satisfied that the applicant incurred danger. Bearing in mind these findings and the cumulative nature of the tests prescribed in the sub-section, there is no need to take the matter any further.
It is the Tribunal's conclusion that the service rendered by the applicant does not meet the requirements of sub-section 7A(1)(a)(i) of the Act and thus he is not entitled to be issued with a Gold Card.
DecisionAccordingly, for the reasons stated, the Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.J Trowse (Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 15 January 2002
Date of Decision 5 March 2002
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr G. Doube
Solicitor for the Respondent Repatriation Commission
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