Collett and Secretary, Department of Veterans' Affairs

[2007] AATA 1917

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1917

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/1471

GENERAL ADMINISTRATIVE DIVISION		)
Re		Frederick Collett

Applicant

And Secretary, Department of Veterans’ Affairs

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date2 November 2007

PlaceBrisbane (heard in Mackay)

Decision The Tribunal affirms the decision under review.

....................[Sgd]....................

SENIOR MEMBER

CATCHWORDS

DEFENCE SERVICE HOMES – subsidy – application for certificate of entitlement – applicant previously received initial advance – no entitlement to further advance – no discretion identified – decision affirmed

Defence Service Homes Act 1918

REASONS FOR DECISION

2 November 2007 Senior Member B J McCabe         

1.      Mr Frederick Collett is 98 years of age. He served in the Australian Army during World War II. He enlisted in the early stages of the war and served for three years. He re-enlisted shortly after his discharge. He saw a good deal of action: his service record confirms he fought in a number of major battles around the world. He currently lives in shared accommodation but owns a block of land on which he would like to build a house. He applied on 8 November 2006 for a war service loan under the Defence Service Homes Act 1918 (the Act) to fund the development. The application was refused.

2.      The respondent says Mr Collett is ineligible to receive a subsidised loan because he received an initial advance under the scheme in 1957. The respondent says a veteran is ordinarily entitled to just one advance, and Mr Collett has already used up his entitlement. Mr Collett, for his part, points out he enlisted twice during the war.

3.      I set out my analysis of the Act below. For reasons I will explain, I must affirm the decision under review.

background facts

4.      Mr Collett enlisted in the Army as a young man in January 1940. They were dark days. He was sent overseas with his unit and fought in a number of well-known battles in Greece, Crete and the Middle East. He was discharged in 1942 but re-enlisted after a brief period. He was sent to New Guinea where he participated in the desperate battle to slow the Japanese advance on Port Moresby.

5.      Mr Collett applied for and received a war service loan under the Act in 1957. He used the money to buy a house in Sydney. The loan was paid off in 1973.

6.      The applicant no longer owns the Sydney property. He does own some land near Mackay. He says he wants to move out of his existing shared accommodation onto his property. He needs to build a house, and wants a loan for that purpose. He says he is entitled to a subsidised loan under the Act.

7.      Mr Collett appeared at the hearing. He was accompanied by his carer. His hearing and eye-sight are failing, but he still has his wits about him. He is articulate and engaging. He winked as he warned me that he would think twice about re-enlisting in the services in a crisis if I was unable to grant his request.

the legislation

8.      The Act establishes a scheme for providing loans to ex-servicemen. The scheme was set up after World War I. In its modern form, the scheme provides for subsidies which are paid to credit providers in return for cheap loans to eligible persons who otherwise satisfy the criteria in the Act. 

9.      There is no question the applicant is an eligible person within the meaning of s 4 the Act as he was an Australian soldier. That expression includes any person enlisted in Australian naval, military or air forces who served overseas during World War II. I note the definition does not seek to distinguish service in individual theatres of the war; any person enlisted in the AIF (for example) who served overseas during the war is covered, whether that service was short or long, and whether the individual fought in one battle in one place, ten battles in ten places - or saw no action at all.

10.     Mr Collett is seeking a subsidised advance for a purpose identified in s 18(2). A subsidised advance includes an initial advance. That expression is defined in s 4. A person who has been a purchaser or borrower within the meaning of the Act is excluded from the definition of a person who can receive an initial advance. There is no doubt Mr Collett has previously been a borrower: he obtained a loan under the scheme in 1957.

11.     The respondent concedes a further advance may be payable to a person who has previously been a borrower on or after 9 December 1987: s 19. That provision does not assist Mr Collett.

12.     Mr Collett’s material included references to veterans whom he understood had received more than one advance because they enlisted on several occasions. The respondent was unable to confirm that multiple advances had been made in the circumstances recalled by Mr Collett.

13.     Mr Collett also recalled that he understood the minister had the discretion to authorise a further advance in special circumstances which included ill-health. I asked Mr Harrison, who appeared for the Secretary, to conduct a search of the legislation and the files to identify if such a power existed or had been exercised. He was unable to identify any power to waive the requirements I have already described. He confirmed in written submissions that he was unaware of such a power in the Act in the past.

conclusion

14.     Australia is indebted to men like Mr Collett. He served on the front line of a desperate and dangerous fight to preserve our homes, values and way of life. The scheme established under the Act is part of an attempt to recognise and honour that service. But Mr Collett has already exhausted his entitlements under the Act. The Secretary, the Tribunal and the relevant Minister are not in a position to ignore the law whatever regard we might have for Mr Collett and his efforts during World War II. In those circumstances, I am obliged to affirm the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Stephen A O’Grady, Associate

Date of Hearing  15 October 2007
Date of further submissions     24 October 2007
Date of Decision  2 November 2007
For the applicant  Self-represented
For the respondent                   Mr Harrison, a departmental advocate