Gorham and Repatriation Commission
[2005] AATA 878
•9 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 878
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1242
VETERANS' APPEALS DIVISION
Re: MAURICE PETER GORHAM
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr C. Ermert, Member
Date: 9 September 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Conrad Ermert
Member
VETERANS' AFFAIRS – service pension ‑ qualifying service – period of hostilities as defined in s 5B of the Veterans' Entitlements Act 1986 – veteran member of Commonwealth defence force – service in Borneo – awarded British General Service Medal with Borneo clasp
Veterans’ Entitlements Act 1986 ss 5B, 7A, 85(4A)
REASONS FOR DECISION
9 September 2005 Mr C. Ermert, Member
INTRODUCTION
1. This is an application by Mr Maurice Peter Gorham (the veteran) for review of a decision of a senior delegate of the Repatriation Commission (the Commission) dated 3 September 2003.
2. That decision affirmed an earlier decision of the Commission, dated 7 July 2003, which determined that the veteran had not rendered qualifying service within the meaning of s 7A of the Veterans’ Entitlement Act 1986 (the Act) and accordingly was not entitled to a service pension.
3. At the hearing the veteran represented himself. Mr R. Douglass, an advocate with the Department of Veterans' Affairs (the Department), represented the Commission.
BACKGROUND
4. The veteran was born on 8 July 1943. He served with the British Army from 29 May 1962 to 28 May 1984. This period of service included service in Borneo from 13 December 1965 to 18 December 1965 and from 8 June 1966 to 6 July 1966 and service in Northern Ireland at various times between 1975 and 1980.
5. On 9 May 2003 the veteran lodged a claim for service pension. In the claim the veteran stated that he had been awarded the British General Service Medal (GSM) with Clasps for Borneo and Northern Ireland. He also stated that he had experienced danger while on jungle patrols in Borneo and Malaya while serving with a Commando unit as a Forward Observer.
6. On 7 July 2003 a delegate of the Commission found that the veteran did have service during a period of hostilities as defined in s 5B of the Veterans' Entitlements Act 1986 (the Act), but that he did not incur danger during that service. The delegate also found that the veteran was not entitled to one of the Campaign Stars stipulated in s 7A(2) of the Act. Accordingly, the delegate found that the veteran had not rendered qualifying service as a Commonwealth veteran in accordance with the Act.
7. In his review of that decision, dated 3 September 2003, the senior delegate of the Commission was satisfied that the veteran met the definition of Commonwealth veteran under s 5C(1) of the Act. He found that the veteran’s service in Borneo could be considered to have occurred within the defined period of hostilities. However, he concluded that the veteran did not incur danger from hostile enemy forces during that period of service. In regard to service within the United Kingdom, in whose forces he had enlisted, the delegate found that the veteran’s GSM was not included in s 7A(2) and therefore the veteran could not satisfy the campaign medal requirements of s 7A(1)(b)(ii) of the Act. As a result, the delegate found that the veteran did not render qualifying service in accordance with s 7A(1)(b) of the Act and affirmed the decision of 7 July 2003.
8. The veteran appealed this decision on 12 November 2003. The respondent accepts that the application is properly before this Tribunal and that all time limits for the lodgement of applications have been met.
LEGISLATION
9. Section 36 of the Act describes the criteria for eligibility for service pension. In this case the only criterion in dispute is that described in s 36(1)(b), which requires the rendering of qualifying service. Qualifying service is governed by s 7A of the Act, of which the relevant parts are:
7A(1) For the purposes of Parts lll and VA and sections 85 and 118V, a person has rendered qualifying service:
...
(b)if, during a period of hostilities , the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or
(ii)service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal…
10. Campaign medal is defined in s 7A(2) of the Act as:
(2) In subparagraphs (1)(b)(ii) and (1)(h)(ii):
campaign medal, in relation to service during the period of World War 2 from its commencement to and including 29 October 1945, means:
(a) any of the following medals:
(i)1939-45 Star;
(ii)Atlantic Star;
(iii)Air Crew Europe Star;
(iv)Africa Star;
(v)Pacific Star;
(vi)Burma Star;
(vii)Italy Star;
(viii)France and Germany Star; or
(b)any other medal declared by the regulations to be a campaign medal in relation to service during that period.
THE ISSUES
11. In its Statement of Facts and Contentions the respondent conceded that the veteran, during his service in Borneo, was “a member of the defence forces established by a Commonwealth country”, served “during a period of hostilities”, had rendered service in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged and rendered service outside of the Commonwealth country which had established the defence force in which he served.
12. The issues remaining to be determined are whether the veteran rendered service in an area outside the Commonwealth country in whose forces he was a member, at a time when the person incurred danger from hostile forces of the enemy (the incurred danger issue) and whether the veteran rendered service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded a campaign medal (the campaign medal issue).
13. The standard of proof to be applied by the Tribunal in determining this matter is that specified in s 120(4) of the Act, namely to the Tribunal’s reasonable satisfaction.
DOCUMENTS
14. The Tribunal had before it the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents), the respondent’s Facts and Contentions dated 15 June 2005 and the applicant’s Submission in Response dated 23 June 2005.
15. The Tribunal also had before it a copy of an unsigned and undated document headed “Report: AAT and Maurice Peter Gorham. V03/1242”. Mr Douglass advised the Tribunal that this was a report by Professor Grey, dated 23 May 2005, prepared for this matter. It was agreed that the report related only to the incurred danger issue. The veteran stated that he was not claiming incurred danger and he did not intend to contest the report. The document was accepted by the Tribunal on the basis that if the applicant subsequently wished to contest material from the report it would have to be properly identified and submitted.
EVIDENCE FOR THE APPLICANT
16. Mr Gorham gave evidence under oath. He referred to the rejection of his claim for service pension (T8) on the grounds that he did not incur danger and that he was not entitled to one of the campaign medals listed in s 7A(2) of the Act. Mr Gorham’s stated that the decision (T9) implied that the GSM awarded to him was not valid. He submitted that his GSM was valid under s 7A(1)(b)(ii) and requested a review of his application.
17. Mr Gorham then referred to the respondent’s Statements of Facts and Contentions. He noted that the wording used in paragraph 3.1 was not exactly the same as the words in the Act. Referring to paragraph 3.2, Mr Gorham noted the respondent’s concession that he had been "a member of the defence force established by a Commonwealth country”, had served “during a period of hostilities”, and that he had rendered service “in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged”; but he questioned the addition of the words which followed, namely “and rendered service outside of the Commonwealth country which had established the defence force in which he served”. He stated his belief that these words constituted an additional condition to suit the needs of the respondent’s case.
18. In regard to paragraphs 3.3 and 3.4 of the respondent’s facts and contentions Mr Gorham accepted that he did not meet the Department's definition of incurred danger.
19. Mr Gorham referred to paragraph 3.5, which listed the conditions the respondent considered necessary for the satisfaction of s 7A(1)(b)(ii). He pointed out that in both sub-paragraphs (d) and (e) the phrase “that country” had been changed to “the commonwealth country which has established the relevant defence forces”. He stated his belief that these changes alter the interpretation of the Act and are an attempt to impose an extra condition upon him not otherwise in the Act.
20. The applicant stated his belief that the Department's use of the phrases “within that country” and “outside that country” were being taken out of context. Mr Gorham’s view is that a campaign medal, whether issued within or outside a particular country, is still a campaign medal. He also pointed out that under the terms of s 7(2) no post-World War II veteran could possibly qualify for service as the medals listed are only those relating to that war, despite Korea, Malaysia, Indonesia and Vietnam all being recognised conflicts.
21. Mr Gorham concluded by restating his opinion that Service within that country is just that; and looked at within the context of the section, simply means a reference to an unknown Commonwealth country mention in s 7A(1)(b).
EVIDENCE FOR THE RESPONDENT
22. Mr Douglass submitted the report by Professor Grey dated 23 May 2005. The report documents the results of the research carried out by Professor Grey into the service history of the veteran. It provides some details of the activities of 95 Commando Light Regiment, to which Mr Gorham was attached, over the period September 1965 to February 1966, which covers the veteran’s first week-long deployment to Borneo. There is less information about Mr Gorham’s second, longer deployment to Borneo. Nevertheless, the report supports the service details provided by the veteran; and the concessions by the respondent that Mr Gorham was a member of the defence forces of a Commonwealth country; that he served outside the United Kingdom during a period of hostilities; and that he rendered service in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged.
23. The main thrust of the report, however, relates to whether the veteran incurred danger from hostile forces of the enemy. The report concludes that the veteran did not incur such danger. However, as this is not a claim being pursued by the veteran, this aspect of the report is of little value to the Tribunal.
24. The respondent submitted no other evidence in this matter.
SUBMISSIONS FOR THE RESPONDENT
25. Mr Douglass submitted that the facts of Mr Gorham’s service were not in dispute. He agreed with the Mr Gorham's view of the operation of the Act in relation to its restriction to World War II veterans. Mr Douglass stated that that was the intention of that particular section of the Act. Mr Douglass conceded that the veteran had service in a period of hostilities; that he was a member of the defence force established by a Commonwealth country, in this case the British Army; and that his service was in connection with war or war‑like operations involving Australian forces. He acknowledged that the veteran was not claiming that he had incurred danger to the extent required by the Act.
26. Responding to the issues raised by the veteran in regard to the wording of the respondent’s Statement of Facts and Contentions, Mr Douglass agreed that the words were not identical to the Act, but said that they paraphrased the requirements of the Act. Nevertheless, the requirements of s7A(1)(b)(ii) of the Act require service “within that country” and eligibility for a campaign medal.
27. Mr Douglass submitted that the applicant’s GSM was awarded for service in Borneo which is outside the United Kingdom. The Northern Ireland Clasp to his GSM was awarded for service within the United Kingdom but the operations in Northern Ireland were not operations in which the defence forces of Australia were engaged. Additionally, the Northern Ireland operations occurred after 1973 and there is no eligibility under these provisions of the Act for operations conducted after 1973.
28. Section 7A(2) of the Act defines campaign medal as used in s 7A(1)(b)(ii). Subparagraph (a) lists a number of specific medals. This list does not include the GSM. Subparagraph (b) includes any other medal declared by the regulations to be a campaign medal in relation to service during that period. Mr Douglass submitted that “that period” referred to World War II. He stated further that the combination of subparagraphs is exhaustive in its list of eligible medals, and is confined to World War II.
29. Mr Douglass agreed that there are differences in the wording between the DVA Facts sheet (T1 pp3-6 and 9) and the Act and that the DVA Facts sheet attempts to summarise and paraphrase the requirements of the Act.
30. Mr Douglass submitted that the issue is a difference in interpretation of the phrase “that country” as used in s 7A(1)(b)(i) and s 7(1)(b)(ii) of the Act. Mr Douglass contended that the phrase is specific and relates to the Commonwealth country which established the defence force of which the applicant was a member. The phrase “that country” is not any Commonwealth country, as submitted by the applicant.
SUBMISSIONS FOR THE APPLICANT
31. Mr Gorham referred to his written submissions dated 23 June 2005. He submitted that the phrase “within that country” relates to the country in which the operations, in which the Australian forces were engaged, took place; and hence the country for which the campaign medals were issued. Mr Gorham’s interpretation of the wording of the Act is the basis of his disagreement with the previous decisions. He submitted that he respondent’s interpretation is incorrect. If his interpretation were accepted, his service would be recognised as qualifying service and he would be eligible for the service pension.
CONSIDERATION
Issues
32. As stated above, the only issues for the Tribunalto determine are the incurred danger issue and the campaign medal issue.
Incurred Danger Issue
33. As Mr Gorham has conceded that he did not incur danger while on jungle patrols in Borneo and Malaya to the extent required by the Act, this issue is not in dispute. Therefore, the Tribunal finds that the veteran has not incurred danger from hostile forces of the enemy and that the provisions of s 7A(1)(b)(i) are not met.
Campaign Medal Issue
34. Section 7A(1)(b)(ii) of the Act requires the fulfilment of the following conditions:
(a)service during a period of hostilities;
(b)membership of a defence force established by a Commonwealth country;
(c)service in connection with war or war-like operations involving Australian forces;
(d)service within that country; and
(e)eligibility for the award of a campaign medal in respect of that service.
35. The only issue in contention is the application of the phrase that country. It is necessary to find first on this issue in order to then apply the finding together with the other conditions to Mr Gorham’s periods of service that may be relevant to this matter.
36. Mr Gorham contended that that country refers to the country in which the person rendered the service leading to the award of a campaign medal. In Mr Gorham’s submission the country in this case would be Borneo. Mr Douglass contended that that country refers to the country in whose defence forces the member served. As Mr Gorham served as a member of the British armed forces that country, in this case, would be the United Kingdom.
37. By extracting the wording of s 7A(1)(b) relevant to this question, we have "if …the person has, as a member of the defence force established by a Commonwealth country, rendered…service within that country…" In the opinion of the Tribunal the phrase that country clearly relates to the Commonwealth country in whose defence forces the member rendered service. In regard to the campaign medal the context is contained in the words "service…being service in respect of which the person has been awarded…a campaign medal". It is the Tribunal’s opinion that this connection relates the award of the campaign medal to the service which must have been service within that country, being the Commonwealth country which established the defence force in which the member served.
38. This view is supported by the following extract from the Explanatory Memorandum to the Veterans’ Entitlements Amendment Bill 1991:
New paragraph 7A(1)(b) would provide that qualifying service for Commonwealth veterans will be service:
· in an area outside the country in whose forces the person enlisted, at a time when the person incurred danger from hostile forces of the enemy
· service within the country of enlistment, being service for which the person is eligible for the award of a campaign medal. (emphasis added)
39. Although the wording in s 7A(1)(b)(i) is service in an area outside that country… and in s 7A(1)(b)(ii) is service within that country…, the meaning remains clear that that country refers to the Commonwealth country in whose forces the person enlisted, the country of enlistment. Therefore, the Tribunal agrees with the respondent’s submission and.finds that that country refers to the United Kingdom.
40. The Tribunal will now consider the effect of this finding with the other provisions required to satisfy s 7A(1)(b)(ii) of the Act. Mr Gorham served in two situations which could be considered under the Act. The first situation was his service in Borneo from 13 December 1965 to 18 December 1965 and from 8 June to 6 July 1966. The second situation was his service in Northern Ireland, at various times between 1975 and 1980.
41. Considering Mr Gorham’s service in Northern Ireland, Mr Gorham was a member of the defence force established by a Commonwealth country, namely the British armed forces; the service was within the United Kingdom, which country had established the force, and he was awarded a medal, namely the Northern Ireland Clasp to the GSM. However, the service in Northern Ireland was not service in connection with war or war-like operations involving Australian forces, nor was it during a period of hostilities as defined in s 5B(1) of the Act. Further, the GSM is not included in the definition of campaign medal contained in s 7A(2), which is restricted to particular medals issued during World War II (paragraph 7A(2)(a)) or any other medal declared by the regulations to be a campaign medal in relation to World War II (s 7A(2)(b)).
42. The Tribunal finds that Mr Gorham’s service in Northern Ireland is not within a period of hostilities specified in s 5B(1) of the Act and is not in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged. Therefore, that service does not comply with the provisions of s 7A(1)(b).
43. Turning next to Mr Gorham’s service in Borneo, the respondent has agreed that the service was during a period of hostilities; that Mr Gorham was a member of a defence force established by a Commonwealth country, the United Kingdom; and that the service was in connection with war or war-like operations involving Australian forces. However, from the evidence, it is clear that the veteran’s service was not rendered in the United Kingdom, being that country which established the British armed forces; nor is the issued medal, the Borneo Clasp to the GSM, on the list of campaign medals recognised in the Act.
44. Accordingly, the Tribunal finds that Mr Gorham’s service in Borneo is not service within that country which established the defence force in which he served. The Tribunal further finds that the medal issued to Mr Gorham as a result of his service in Borneo is not a campaign medal recognised by s 7A(2) of the Act.
45. In his written submissions and in his oral evidence Mr Gorham expressed the opinion that the non-acceptance of his service as qualifying service implied that his award of the GSM was not valid. In these considerations there is no question of the validity of the award of the medal in recognition of his services in Borneo and Northern Ireland. The consideration has been related solely to whether his service meets the requirements of the Act It should not be interpreted as a measure of validity of a service medal.
FINDINGS
46. The Tribunal makes the following findings:
(a)that Mr Gorham's has not incurred danger from hostile forces of the enemy and that the provisions of s 7A(1)(b)(i) of the Act are not met.
(b)that the phrase that country refers to the country in whose defence forces the member served. In this case that country refers to Great Britain.
(c)that Mr Gorham’s service in Northern Ireland is not within a period of hostilities specified in s 5B(1) if the Act, is not in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged and therefore does not comply with the provisions of s 7A(1)(b).
(d)that Mr Gorham’s service in Borneo is not service within that country which established the defence force in which he served. The Tribunal further finds that the medal issued to Mr Gorham as a result of his service in Borneo is not a campaign medal recognised by s 7A(2) of the Act.
47. Accordingly, the Tribunal finds that the veteran has not rendered qualifying service during a period of hostilities as required under s 7A(1)(b) of the Act. As a consequence the veteran is not eligible for the service pension.
DECISION
48. The Tribunal affirms the decision under review.
I certify that the forty‑eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
signed: (sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 11 July 2005
Date of Decision: 9 September 2005
Advocate for applicant: Self‑represented
Advocate for the respondent: Mr R. DouglassSolicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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