Fuller and Repatriation Commission (Veterans' entitlements)
[2023] AATA 260
•24 February 2023
Fuller and Repatriation Commission (Veterans' entitlements) [2023] AATA 260 (24 February 2023)
Division:VETERANS' APPEALS DIVISION
File Number: 2022/0030
Re:Paul Fuller
APPLICANT
AndRepatriation Commission
RESPONDENT
Decision
Tribunal:Deputy President J Sosso
Date:24 February 2023
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]................................
Deputy President J Sosso
Catchwords
VETERANS’ ENTITLEMENTS – eligibility for veteran gold card – whether the veteran rendered qualifying service – instrument of allotment – amended instrument – whether the veteran rendered warlike service – operational area – whether the veteran was allotted for duty – decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Defence Act 1903 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
SUBORDINATE LEGISALTION
Veterans’ Entitlements (Allotment for Duty) Amendment Instrument 2015
Cases
Sykes and Repatriation Commission [2012] AATA 276
Savage and Repatriation Commission [1997] AATA 451
Repatriation Commission v Hawkins (1993) 45 FCR 205
Goble and Repatriation Commission (1992) 29 ALD 259
Kirk and Repatriation Commission [2006] AATA 469
Secondary Materials
Report of the Review of Veterans’ Entitlements 2003
REASONS FOR DECISION
Deputy President J Sosso
24 February 2023
INTRODUCTION
Mr Paul Fuller (the veteran) seeks a review of a decision of the Repatriation Commission (the Respondent) dated 8 October 2021 that he had not rendered qualifying service as defined in s 7A(1)(a) of the Veterans’ Entitlements Act 1986 (Cth) (the Act) – T1 pp. 1 -3, T1.1 pp. 4 – 16.
Mr Fuller was born in 1942 and enlisted in the Royal Australian Air Force (RAAF) on 29 August 1963.. He was discharged from the RAAF on 5 February 1985 with the rank of Flight Lieutenant – T3 p. 19, T4.1 p. 44.
It is not disputed that the veteran was a member of a crew flying a Lockheed Neptune P2E aircraft from Richmond RAAF Base in New South Wales to various overseas destinations as part of Operation Sea Imp, in the period 19 May 1966 until 8 June 1966 – T4.1 p. 44.
Operation Sea Imp was a SEATO exercise which took place in May 1966 – Sykes and Repatriation Commission [2012] AATA 276 (Sykes) at [15].
It would appear that after departing Richmond, the crew flew to Port Moresby, Guam, Sangley Point in the Philippines, Butterworth in Malaysia and then returned to Australia – T1.1 p. 5.
A number of members of the crew of the aircraft were recognised as having rendered qualifying service. The veteran, likewise, has sought to have his service on this operation recognised as qualifying service as defined in s 7A(1)(a) of the Act.
Documentation presented to the Tribunal indicates that in June 1965 a temporary detachment was formed from Lockheed P2 Neptune aircraft of 10 and 11 Squadrons RAAF which operated out of United States Naval Air Base at Sangley Point. The detachment flew a number of sorties in support of HMAS Sydney as she made her first voyage to Vietnam.
In December 1997 the relevant Minister, by Instrument, determined that aircrew members of the RAAF Detachment Sangley Point were to be taken to be allotted for duty for the purposes of the Act. The Instrument did not specify a timeframe or nature of the service that must be taken in order for a person to be considered to be a member of the Detachment. The effect of the Instrument was that aircrew members were taken to have rendered operational and qualifying service – T1.1 p. 13.
The scope of this Instrument was considered by Senior Member Isenberg in Sykes. This matter is of particular relevance as the veteran in that matter was serving in the RAAF and left Australia on 18 May 1966 to perform temporary duties at Sangley Point. He returned to Australia on 9 June 1966 via Butterworth, Malaysia. It would appear that Mr Sykes most probably served on the same operation as the veteran in this matter.
It is helpful to set out in full the reasons given by Senior Member Isenberg who found in favour of Mr Sykes:
“18.There was no dispute that Mr Sykes was a RAAF member, and that he served at Sangley Point. The Respondent further accepted that the Applicant, by virtue of the flight of 26 May 1966, served in an operational area. The remaining question for the Tribunal is simply put: was the Applicant allotted for duty as part of ‘Aircrew members of the Australian Air Force Detachment Sangley Point’?
19.The crux of the Respondent’s submissions was that being physically present at Sangley Point is not sufficient to be a member of Australian Air Force Detachment Sangley Point.
20I accept that Sangley Point Naval Air Station was an American naval air station in the Philippines from which 11 SQN flew as part of Operation TRIMDON, until 9 June 1965. The Respondent accepted that the Applicant had served at Sangley Point but disputed that he had been part of the Detachment, asserting that the RAAF ‘Detachment’ at Sangley Point was a temporary one that only existed for the duration of Operation TRIMDON.
21It was altogether unclear to me why the Respondent so adamantly contended that provision in the Instrument as to the Sangley Point detachment was limited in time to Operation TRIMDON. The Instrument contains no such limitation. The Respondent could not take me to any evidence that might so limit the Instrument. As far as I could see there was no basis whatever for the contention.
22What then is a ‘detachment’? The term is not defined in the VEA. The Respondent’s evidence was that for administrative purposes it is simpler to task a ‘detachment’ rather than to task individual aircraft and ADF members to conduct the required task. This did not suggest to me that the term has any technical meaning, and instead reflects a state of affairs, namely that ADF members are ‘detached’ to undertake a particular task, which suggests some temporary element to the posting. The Oxford English Dictionary defines ‘detachment’ in the military context as:
The separating and dispatching of part of a body of troops, etc., on special service.
The Applicant’s service record was to the effect that he was serving with 11 SQN at Richmond when he, and others, on 18 May 1966, departed on temporary duty to Sangley Point Naval Air Station. There, according to his evidence, which is not disputed, he participated in exercise SEA IMP during May 1966 and also a flight on 26 May 1966, into Vietnamese airspace on ‘offensive ops’. He returned via Butterworth to Richmond, according to his service records, on 9 June 1966. I find that he was part of a detachment with the RAAF to Sangley Point, in that he was on special service to undertake a task, namely to participate in an exercise, during the course of which he flew into Vietnamese airspace.
23It is correct that Sangley Point Naval Air Station is simply the location at which the 'Australian Air Force Detachment Sangley Point' was temporarily based. The Respondent submissions were to the effect that Australian Air Force Detachment Sangley Point were temporarily based at Sangley Point Naval Air Station but I consider the Respondent’s contention that there is a clear distinction between ‘Australian Air Force Detachment Sangley Point’ and ‘Sangley Point Naval Air Station’ to be wholly artificial.”
As explained below, the Instrument of Allotment signed on 23 December 1997, which was considered by Senior Member Isenberg in Sykes, has since been significantly amended.
LEGISLATION
Section 7A prescribes for the purpose of the Act whether a person has rendered qualifying service.
In this matter the relevant subparagraph is s 7A(1)(a) which contains six scenarios. In order to meet the circumstances contained in any of those scenarios, the person must have been a member of the Defence Force at the relevant time. “Defence Force” is defined by s 5A to have the same meaning as in the Defence Act 1903.
It is not contested that the veteran was, at the relevant time, a member of the “Defence Force” – T3 p. 20.
It is also not contested that the circumstances prescribed in s 7A(1)(a)(i), (ii), (v) and (vi) are not relevant to the veteran’s service in the Defence Force.
Before turning to the subparagraph of direct relevance to this matter, reference should be made to s 7A(1)(iv) which provides that a person has rendered qualifying service if they, as a member of the Defence Force, rendered warlike service.
The term “warlike service” Is defined in s 5C(1) as follows:
“…means service in the Defence Force of a kind determined in writing by the Defence Minister to be warlike service”
In short, warlike service is service which is determined by the Executive Government to be such. In the Report of the Review of Veterans’ Entitlements (the Clarke Review – 2003) the following information was provided:
‘in 1993, Cabinet agreed that warlike service refers to those military activities where the application of force is authorised to pursue specific military objectives and there is an expectation of causalities.”
In the reviewable decision, the Delegate of the Respondent made the following finding – T1.1 p. 15:
“Mr Fuller’s service in the RAAF has not been determined to be ‘warlike service’ by the Minister for Defence and, therefore, Mr Fuller does not meet the requirements of subsection 7A(1)(a)(iv) of the VEA.”
This finding has not been challenged, and the Tribunal proceeds on the basis that s 7A(1)(a)(iv) is not applicable to the veteran’s service.
The subparagraph of relevance in this matter is s 7A(1)(a)(iii) which is set out below:
“(iii) rendered service outside Australia in area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area”
It will be noted that s 7A(1)(a)(iii) prescribes a number of requirements.
First, a person must have ‘rendered service’ outside of Australia.
It was not contested at the Hearing that the veteran was a crew member on a RAAF aircraft which, as part of its operation, flew to various overseas destinations. In short, the veteran in the period May to June 1966 served outside of Australia.
In order to render service pursuant to s 7A(1)(a)(iii) a person does not have to meet the requirements of s 7A(1)(a)(i), namely have rendered service during a period of hostilities in operations against the enemy in an area, or an aircraft, a time when the person incurred danger from enemy forces. Subparagraph 7A(1)(a)(iii) is of narrower and more specific operation.
Subparagraph 7A(1)(a)(i) relates to service rendered during a ‘period of hostilities’. That term is defined by s 5B(1) to include World War 1, World War 2, Korea, Malaya and war-like operations in operational areas from 31 July 1962 to 11 January 1973.
In contradistinction, s 7A(1)(a)(iii) focuses on service rendered while allotted for duty as distinct from service in a theatre of war.
There is no warrant for reading into s 7A(1)(a)(iii) a requirement that a veteran has rendered any particular type of service, let alone that the service involved danger. In this instance, the fact that the veteran rendered the service outlined above is sufficient to meet the initial requirement of the subparagraph.
Next, it is also not contested that the veteran rendered service outside Australia at Sangley Point in the Philippines.
The term “operational area” is defined in s 5B(1) to mean an area described in Column 1 of Schedule 2 during the period specified in Column 2 of Schedule 2 opposite to the description of the area in Column 1.
It is also the case that the veteran and other RAAF crewmen had flown out of the Sangley Point Naval Air Station while participating in Exercise Sea Imp. In short in Sykes the Tribunal found that Mr Sykes had entered into Vietnamese airspace and therefore fell within Item 4 of Column 1 of Schedule 1 to the Act, namely “Vietnam (Southern Zone)” in the period in Column 2 namely, “from and including 31 July 1962 to and including 11 January 1973”.
The same finding can be made in this matter. The Tribunal finds that the veteran rendered service outside Australia in an areas described in Item 4 of Column 1 of Schedule 1.
The key issue in this case with respect to s7A(1)(a)(iii) is whether the veteran was allotted for duty.
Subsection 5B(2) sets out the requirements for being “allotted for duty”.
Relevantly, s 5B(2)(a) provides in the case of duty that was carried out in an operational area described, inter alia, in Item 4 of Schedule 2 to a person, or unit of the Defence Force, that is allotted for duty in the area by written instrument issued by the Defence Force for use by the Respondent in determining a person’s eligibility for entitlements under the Act.
REVIEW ON THE PAPERS
Section 34J of the Administrative Appeals Tribunal Act 1975 provides for circumstances when a Hearing may be dispensed with.
Where it appears to the Tribunal that the issues for determination can be adequately dealt with in the absence of the parties and the parties consent to the review being determined without a Hearing, the Tribunal may review the decision by considering the material lodged without a Hearing.
In this matter no issues of credit have been raised and the material provided to the Tribunal is adequate for a decision to be made.
Both the veteran and the Respondent have agreed that this matter can be determined on the papers.
Having regard to the consent given by the parties, the material before the Tribunal and the issues for determination, the Tribunal is satisfied that it is appropriate for this matter to be determined on the papers.
ISSUE
The key issue for determination by the Tribunal is whether the veteran was allotted for duty to one or more of the areas outlined in Schedule 2 to the Act during the relevant prescribed time periods.
CONSIDERATION
As discussed above, the Tribunal in Sykes found that the Instrument covered persons who had participated in Exercise Sea Imp because the Instrument was open ended and specifically was not limited in time to Operation Trimdon in May to June 1965.
Before turning to the Instrument as it is now drafted, it is important to first deal with the requirements of being allotted for duty pursuant to s 5B(2).
In order for the veteran to meet the allotment requirements in the Act, two elements must be met:
(a)the person or unit must be allotted for duty by written instrument issued by the Defence Force; and
(b)actual service while allotted in one or more of the operational areas described in Schedule 2.
The requirements of being allotted for duty are specific and straightforward.
First, the instrument of allotment was stated in the Explanatory Notes to the 1990 amending legislation as “a reference to Military Board Instructions, Australian Army Orders, Commonwealth Navy Orders, Australian Navy Orders and Written Instruments of the Royal Australian Airforce”. Accordingly, it was determined in Savage and Repatriation Commission [1997] AATA 451 that the commanding officer of HMAS Voyager did not have the authority to allot for duty as mandated by s 5B(2).
Second, allotment for duty in a prescribed operational area in the prescribed time period does not require the rendering of any particular service. The requirement is geographic and temporal and does not impose the further requirement of inquiring into the nature of the service rendered by a veteran – Repatriation Commission v Hawkins (1993) 45 FCR 205.
Third, the Act does not mandate a minimum time period for service in an operational area. In Goble and Repatriation Commission (1992) 29 ALD 259, service on the HMAS Sydney in an operational area for four days over a two month period was sufficient for the particular circumstances of that matter. In Kirk and Repatriation Commission [2006] AATA 469, the veteran was in a designated operational area for three days. The Tribunal observed (at [8]):
“The fact that he was present for 3 days only is immaterial.”
On 15 September 2015 the then Assistant Minister for Defence signed the Veterans’ Entitlements (Allotment for Duty) Amendment Instrument 2015. The Instrument was made under s 5B(2)(c) of the Act.
Critically, Schedule B was amended by omitting “Aircrew members of Australian Airforce Detachment Sangley Point” and substituted with “Aircrew members of Australian Air Force Detachment Sangley Point who served on Operation Trimdon between 2 June and 13 June 1965.”
The effect of the amending Instrument is to limit coverage to aircrew members of Australian Air Force Detachment Sangley Point on Operation Trimdon between 2 June 1965 and 13 June 1965.
Also of importance, a new Clause 3 was inserted into the Instrument:
“However, the amendment of Schedule B to this instrument made by the Veterans’ Entitlements (Allotment for Duty) Amendment Instrument 2015 does not apply in relation to a claim for a pension that was made before the amendment commenced.”
In short, a claim for a pension made on or before 15 September 2015 was not limited to aircrew members of RAAF Detachment Sangely Point who participated in Operation Trimdon between 2 and 13 June 1965.
It is tolerably clear to the Tribunal that the veteran does not meet the allotment for duty requirements of the Instrument, as his service was rendered in 1966 as part of Operation Sea Imp and not in 1965 as part of Operation Trimbdon.
It is understandable that the veteran would be confused by this situation. For a period of 18 years following the making of the 1997 Instrument, his fellow aircrew who rendered the same service were deemed to meet the requirements for qualifying service. Then, in 2015, the Instrument was amended to limit the allotment for service to Operation Trimdon. This amendment was not made retrospective, but, instead it only operated prospectively. Whilst this had the beneficial effect of ensuring that those persons who had prior to 15 September 2015 gained an entitlement under the Act were not subsequently denied that entitlement, it had the effect of denying other air crew who rendered the same service receiving the same entitlements after 15 September 2015.
Unfortunately in this matter the Respondent has no discretion and is required by law to deny the veteran’s application for the Gold Card. Whilst legally correct, nonetheless the policy underpinning the 2015 amendment to the Instrument creates two classes of veterans who rendered the same service. Insofar as one class of veterans receive entitlements whilst the other class are denied the same entitlements, it creates an unlevel playing field with ostensibly unfair outcomes.
The only remedy open to the veteran is of a policy nature. The making of the Instrument in 1997 and its subsequent amendment in 2015 arose out of policy considerations. The veteran’s only practical avenue for relief is to make submissions to the Minister responsible for the administration of the Act. If the veteran avails himself of this course of action, he can provide the Minister with a copy of this Determination.
DECISION
The decision under review is affirmed.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
...............................[SGD]...............................
Associate
Dated: 24 February 2023
Date of hearing: Hearing on the papers Applicant: Self-represented Solicitor for the Respondent: Jamie Watts
Australian Government Solicitor
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