Gray and Repatriation Commission
[2004] AATA 543
•28 May 2004
DECISION AND REASONS FOR DECISION [2004] AATA 543
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° V2003/725
)
GENERAL ADMINISTRATIVE DIVISION
Re
IAN GRAY
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs J. Dwyer, Senior Member,
Mr C. Ermert, MemberDate28 May 2004
PlaceMelbourne
Decision
The Tribunal affirms the decision under review.
[sgd] Mrs Joan Dwyer
Senior Member
VETERANS’ AFFAIRS – qualifying service – whether veteran incurred danger from hostile forces of the enemy – eligibility for medical and other treatment (Gold Card) under s 85(4A) of the Veterans Entitlements Act 1986.
Veterans Entitlements Act 1986 ss 7A, 85(4A), 120(4)
Domestic Proceeding and Magistrates Court Act 1978 (UK)Civil Aviation Act 1964 (NZ)
Repatriation Commission v Walter Harold Thompson (1988) 82 ALR 352
Re Morris and Repatriation Commission [2000] AATA 49 (31 January 2000)
McCartney v McCartney [1981] 1 All ER 597
Fowler v Police [1983] NZLR 701REASONS FOR DECISION
28 May 2004 Mrs J Dwyer, Senior Member
Mr C Ermert, Member
1. This is an application, under s 175(2) of the Veterans’ Entitlements Act1986 (“the Act”), for review of a determination of the Repatriation Commission (“the Commission”) made on 2 June 2003. That determination affirmed a decision of the Commission made on 11 April 2003, that Mr Gray had not rendered “qualifying service” as that term is defined in s 7A of the Act and, therefore, was not eligible for medical and other benefits (a Gold Card) under s 85(4A) of the Act.
2. At the hearing, Mrs Winneke of Counsel appeared for Mr Gray. Mr Douglass, an advocate with the Department of Veterans Affairs, appeared for the respondent. Mr Gray gave evidence. Mr Piper of Military Aviation Research Services, who had provided two reports (Exhibits R1 and R2), gave evidence on behalf of the Commission. The Tribunal had before it the documents (“the T-documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits taken into evidence during the hearing.
LEGISLATION
3. Section 85(4A) of the Act provides that a veteran is eligible to be provided with treatment for any injury or disease if he or she is aged 70 or over and has rendered “qualifying service” during a “period of hostilities” specified in section 5B(1) of the Act. In this matter the relevant “period of hostilities” is during World War 2.
4. Section 7A of the Act provides definitions of the term “qualifying service”. So far as relevant, it provides:
(1) For the purposes of … and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(i) 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; or
…
6. The relevant standard of proof is that in s 120(4) of the Act which provides:
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
BACKGROUND
7. Mr Gray was born on 6 March 1926 and served in the Royal Australian Navy (“the Navy”) from 4 January 1944 to 12 July 1946.
8. He served on HMAS Echuca in the period 15 September 1944 to 29 September 1944. During that time HMAS Echuca sailed from Darwin to Scott Reef and back to Darwin on a surveying mission. Scott Reef is located in the Timor Sea off the north -west coast of Australia.
9. On that voyage HMAS Echuca sailed as one of four corvettes accompanying the survey ship HMAS Moresby on mapping and surveying operations around Scott Reef.
THE ISSUE
10. The issue requiring determination is whether, during that voyage, Mr Gray “in naval …. operations against the enemy …. incurred danger from hostile forces of the enemy on that ship”.
11. Mrs Winneke and Mr Douglass agreed that the relevant authority on the matter is the decision of the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. However, they contended for different interpretations and applications of that decision.
12. Mrs Winneke submitted that the principle for which the case stands is well set out in holding (iii) of the headnote which states:
(iii) Using the dictionary meanings of “danger” and “incurred”, a serviceman incurred danger when he or she encountered danger, was in danger or was endangered. A serviceman incurred danger from hostile forces when he or she was exposed, at risk of, or in the peril of harm or injury from hostile forces. A mere risk of or liability to danger or danger which was fanciful or minimal was not sufficient. The test for “incurred danger” was objective not subjective.
13. Mrs Winneke submitted that Thompson established that any liability to danger or any risk of danger which is more than “fanciful or minimal” was sufficient to satisfy the requirements of the definition of qualifying service.
14. Mr Douglass submitted that a careful analysis of the language and approach of the Full Court in Thompson showed that the Full Court rejected the view that a threat or risk of danger is sufficient. He relied on the Full Court’s explanation of the words “incurred” and “danger” at p 356:
We hesitate to suggest that the complex principles of income taxation have any application to the present case. Nevertheless, it maybe worth noting that in Federal Commissioner of Taxation v. James Flood Pty Ltd (1953) 88 CLR 492 at p 507, Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. cited the following passage from New Zealand Flax Investments Limited v. The Federal Commissioner of Taxation (1938) 61 CLR 179 at p 207 that:-
“‘Incurred’ does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, fallen upon. …. it does not include a loss or expenditure which is no more than impending, threatened or expected.”
Their Honours used as analogous terms the words “established” and “definitely committed”. Their remarks are consistent with the dictionary definition.
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 danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.
THE EVIDENCE
15. Mr Gray said that at the time of the voyage to Scott Reef he had just joined HMAS Echuca, to replace a seaman who had left the ship. He was an ordinary seaman and did not know the reason for the voyage or the destination. He believed they were engaged on survey operations for transport of the British Fleet.
16. Mr Gray stated that there was a high degree of alertness on board the ship, with a large number of lookouts including a lookout at the masthead. He remembered that when he was the stern lookout on a midnight to 4am watch, a Petty Officer told him to “keep a sharp lookout”. He said that as far as he could see the anti-aircraft guns were manned around the clock - “the operators seat was always occupied as far as my recollection goes”. He said that the anti-aircraft gun was fired once. He remembered a palette of five depth charges being launched overboard, two the port side, two to the starboard and one off the stern. He said that this was the first time he had seen depth charges launched. He said that at night the vessel was blacked out. If lights were burning they were not allowed to be visible.
17. Mr Gray said that his service on HMAS Echuca was a complete contrast to his service in a ship after the end of the war, when the atmosphere was much more relaxed.
18. In cross examination, Mr Gray said that he could not recall when the dropping of the depth charges occurred. He agreed that the anti-aircraft gun being fired could have been part of exercises.
19. Mr Gray said that he could not recall whether the ship was “closed up”, and he did not know what this term meant. Mr Douglass explained that it was a reference to a ship going to action stations. Mr Gray said that he did not remember that happening.
20. Mr Piper said that he has 30 years experience in historical research, including 15 years as the RAAF Historical Officer with the Department of Defence in Canberra. He has also been a pilot and navigator for 20 years. He said that for his research into this matter he had looked at all relevant historical records which were available to him.
21. Mr Piper wrote in his report of 2 December 2003 (R1), that by September 1944 the Japanese Air Force was a “spent force”, and the limited Japanese airpower in the area was concentrating on a defensive capability rather than an offensive one. He explained that the last air raid on Darwin was at night in November of 1943. The Japanese lost two of the eight aircraft involved in that raid. In September 1944, there were still Japanese destroyer class vessels operating around Timor, north of Scott Reef, and a Japanese cruiser was brought into the area to evacuate Japanese troops from Koepang, Timor, but there was no record of Japanese vessels operating between Darwin and Scott Reef or in the vicinity of Scott Reef in September 1944. The last of the Japanese submarines which had been operating off the east coast of Australia had withdrawn in June 1943.
22. Mr Piper had attached to his report of 2 December 2003 a copy of the Report of Proceedings of the Commanding Officer of HMAS Echuca for the month of September 1944. It reads as follows:
From Commanding Officer, HMAS Echuca
Date 1 October 1944….
Subject REPORT OF PROCEEDINGS OF H.M.A.S “ECHUCA” FOR THE MONTH OF SEPTEMBER 1944 ….
2. H.M.A.S. “ECHUCA” was on passage from Darwin to Scot Reef on September, 1st, in company with the H.M.A. Ships “MORESBY’ (Senior Officer), “HORSHAM”, “CASTLEMAINE” and “JUNEE”. Browse Island was passed at 0230 ½, and ships anchored off Sandy Island at 1505 I in 18 ½ fathoms. This anchorage had not previously been surveyed, but a wide and clear passage was found to the North of Sandy Island.
3. One Midshipman was sent, with three ratings, and a Petty Officer from “MORESBY”, in “ECHUCA’S” Motor Boat to lay a control beacon, during the forenoon of 3 September.
4. At 0915 I 4 September, Commander C.G. Little, R.A.N.. Commanding H.M.A.S. “MORESBY”, boarded “ECHUCA”. And ship proceeded at 0930I to investigate a suspected shoal patch outside the reef, and to carry out Radar range test of the steel tower which had been erected on Sandy Island. The shoal patch was not found, and the greatest Radar range secured 10,200 yards. The tower, at this time, was still incomplete. “ECHUCA” returned to anchorage at 1108I.
5. Commanding Officer, “ECHUCA”, spent the afternoon of 4 September in “MORESBY’S” Motor Boat, taking sextant angles and observing control marks. Sub-lieutenant A.J. Watson, R.A.N.R., carried out these duties, for experience, on the whole of the following day. A small “MORESBY” beacon was recovered on board from “MORESBY”, for future laying as a survey mark.
6. Commanding Officers of all Escort Vessels went to sea in “MORESBY” at 0730 I, 7 September, and spent the day taking sextant angles and plotting and recoding soundings, inside Scott Reef.
7. At 0630 I, 9 September, all ships weighed and proceeded to a position south of Scott Reef, and at 0810 commenced running lines of soundings to a position off Browse Island. “ECHUCA’S” Echo Sounding gear gave continual trouble, but was patched up sufficiently to keep the soundings required.
Lines of soundings were run to and from Scott Reef on the 10 and 11 September, ships in company returning to Darwin for fuel and stores, arriving there on 13 September.
8. All ships, with the exception of “HORHSAM”, sailed for Scott reef at 0630 IK/I5, entering through the East Channel at 0650/17. Ships anchored off Sandy Island at 0745 I. The ships motor boat, towing H.M.A.S. “JUNEE’s” whaler, was away all day on the 17th, on Survey duty, with one Junior Officer from the ship.
9. On the 18 and 19 September, Commanding Officer, “ECHUCA” with the requisite hands and instruments, defined high and low water marks of Sandy Island and carried out a baseline measurement. At 0745 I/20, Lieutenant Commander J.A. Taplin R.A.N.R (S) joined the ship from “MORESBY”, and “ECHUCA” proceeded to sea to define the coastline of the Southern Reef, and sound. The Echo sounding machine again broke down, this time permanently, and was only repaired late that night with equipment loan by “MORESBY”. Coastlining of the Northern Reef was carried out on 21st, the Echo sounding machine running perfectly throughout. H.M.A.S. “HORSHAM” arrived at 0740 from Darwin, with a little mail, and some fresh provisions.
10. H.M.A.S. “SHEPPARTON” arrived from Darwin at 1025I/22, and Lieutenant Ormond, R.A.N.R. carried out further repairs to “ECHUCA” Echo sounding set.
At 0130 I/25, ships in company weighed and proceeded, and at 0640 commenced running lines of soundings from Scott Reef to Browse Island. This work was continued on 26th and 27th. At 1855 I/27, “ECHUCA”, after embarking Accountant Officer, “MORESBY” and mails, took H.M.A. Ships “CASTLEMAINE” and “JUNEE” under her orders and proceeded to Darwin for fuel and provisions, arriving there at 1500 IK/29. During the passage, the officers borne for training in each ship was exercised by “ECHUCA” at Officer-of-Watch manoeuvres. The exercise was extremely well carried out, and it is regretted that opportunities such as this occur so infrequently, that this very essential side of a young Officers training is, of necessity, neglected.
Ships remained at Darwin, on completion of fuelling, to await the arrival of H.M.A.S. “MORESBY”.
11. A considerable amount of trouble has been experienced in Darwin, in securing fresh and dry provisions. The A.A.S.C. appears most reluctant to properly satisfy demands for fresh and dry stores, and it has not been possible to keep the ship stocked to 3 months capacity with the stores available. Certain meat has been refused, although it was known that stocks were in the shore freezers. On one occasion, bacon was refused, although it was seen by my supply party, the reason given being that it was not available to the Navy.
The quality of the meat supplied on 15 September, was extremely bad. It had been freshly killed, was not cleaned in any way, and required considerable butchering before it could be placed in the freezer. None was lost, despite the fact that the whole quantity had to lie on the Timber Wharf, Darwin, for approximately two hours, before it could be placed on board.
12. The health of the ship’s company has deteriorated slightly, there having been fresh outbreaks of boils in a number of cases. Facilities for recreation have been availed of as much as possible, but the routine under which the ship’s [sic] work precludes any considerable athletic activity. The average duration of a stay in port after 13 days away from Darwin, is generally, only 24 to 36 hours. The conduct of the ship’s company remains extremely good.
13. With only one sextant in the ship, it is not possible to properly instruct Junior Officers in Navigation. Application was made in 1942, to the Naval Officer-in-Charge, Sydney, for permission to draw an additional instrument, but this was not granted, on the score that supplies were not available. At the present time, the Executive Officer is the only one in the ship holding a limited watchkeeping certificate, and I am concerned that three very keen young officers serving under my command, are unlikely to be granted Certificates, under the existing arrangements. .…”
25. Mr Piper said he had found no reference to Scott Reef being a target for the Japanese and there was no record of Australian ships detecting Japanese Forces in the Scott Reef area or anywhere in the vicinity of the Australian coast at the time of Mr Gray’s service on HMAS Echuca. The Japanese were still in control of Timor.
26. Mr Piper in his report (R1) wrote that that the Japanese had Dinah photo reconnaissance aircraft from the 70th Direct Control Squadron patrolling the ocean and coast to the north of Australia. In cross examination he said that they operated regularly over northern waters off and over Darwin and along the Australian north-west coast. His estimate was that they might have flown in the area around Scott Reef approximately weekly to fortnightly in September 1944. He agreed with Mrs Winneke’s suggestion that if they had seen HMAS Moresby with the four corvettes, they would have shown a keen interest. However, that did not mean that there was any likelihood of attack by Dinah aircraft. They had a single machine gun for protection from Spitfires and used firecrackers as a diversion, but had no offensive capability.
27. Mr Piper said that in December 1944, one German submarine, U862, was known to be in the area. It was part of a three submarine force. The other two had been sunk on departing Surabaya harbour on the North coast of Java. U862 escaped that attack and travelled down the west coast of Australia to New Zealand and then back to Java. It was under observation during that voyage as Allied intelligence had cracked the German communication code.
28. In cross examination, Mrs Winneke referred to Mr Piper’s report and evidence in the case of Morris v Repatriation Commission [2000] AATA 49, which also concerned the voyage of HMAS Echuca to Scott Reef. Mr Piper’s report in Morris was taken into evidence in this matter (A4).
30. When Mrs Winneke asked Mr Piper about his report in the Morris matter, Mr Piper confirmed that, as he had written, there were Japanese naval vessels and combat aircraft in the area within striking range of Scott Reef in September 1944. However, he added, as he had done in his report on the Morris matter, that there is no record of either Japanese naval vessels or combat aircraft conducting any operations in the area of Scott Reef.
36. Mrs Winneke put to Mr Piper that there were still some engagements between Allied and enemy forces in the area to the north of Australia after September 1944. He agreed that there had been the battle of Leyte Gulf on 21 October 1944. He said that battle involved mainly American forces, and was far to the north of Australia, in the Philippines.
37. Mr Piper said that at the time he wrote his report in Morris he did not have the benefit of HMAS Echuca’s Report of Proceedings for September 1944. Having obtained and read that report, it confirmed his view that the Commanding Officer did not consider the ship to be in any danger. He explained that he reached that conclusion from the lack of any reference to action stations, or defence stations or of any reference to enemy contact or enemy sightings in the Report of Proceedings.
38. Mr Piper also said that the tone of the report was not such as to indicate that the Commanding Officer of HMAS Echuca was of the opinion that there was any danger from enemy forces during the voyage to Scott Reef. The concerns reflected in the report were associated with poor equipment, lack of adequate supplies of good food and the need for more such training opportunities for young officers. There was no mention of any apprehension of enemy action.
35. Mr Piper said that, looking at the report and the concern of the Commanding Officer about training opportunities for young officers, it was possible that the voyage to Scott Reef was seen as a training exercise. If it had been considered necessary, protective cover for the voyage could have been provided by Catalina flying boats. This was one of their functions and, if required, they would have been sent for protection.
36. Mr Piper said that Commanding Officers made their reports as precisely as possible. If the Commanding Officer of HMAS Echuca was of the opinion that his crew was in danger that would be expected to be reflected in the Report of Proceedings.
CONCLUSION
37. Mrs Winneke submitted that the Act is remedial legislation designed to benefit a particular class or group of people and should be beneficially construed. She submitted that Thompson establishes that a risk or liability to danger which is more than “fanciful or minimal” was sufficient to establish that a serviceman “incurred danger”.
38. Mrs Winneke referred to McCartney v McCartney [1981] 1All ER 597 as authority for the view that the word “danger” does not carry any connotation of “immediate danger”. Mrs McCartney sought an order under domestic violence legislation restraining her husband from using or threatening to use violence against her and their children and that he leave the family home. There was evidence of assaults, the last one being on 15 January 1980. Mrs McCartney made the application on 22 May 1980. The evidence was that the husband’s behaviour had been good since January. The Court on appeal held that it was inconsistent that an order for eviction was refused on the basis that that there was no “immediate danger”, but an injunction was granted on the ground that the husband had threatened or used violence. We find that decision to be in such a different context that it is not of assistance to us. It depends very much on the specific words of the Domestic Proceeding and Magistrates Court Act 1978 (UK).
39. Ms Winneke also referred the Tribunal to Fowler v Police [1983] NZLR 701. That decision concerned a conviction under the Civil Aviation Act 1964 (NZ) on a charge of operating an aircraft in “such a manner as to be the cause of unnecessary danger”. Mr Fowler had flown approximately 20 feet above pedestrians in a residential area. In dismissing the appeal, the Court of Appeal referred to dictionary definitions of “danger”, saying:
The meaning of danger given in the Shorter Oxford English Dictionary is “Liability or exposure to harm or injury; risk or peril”. Liability is there defined as, inter alia, “The condition of being subject to something”. Subject itself is defined as, inter alia, “Exposed or open to; prone to or liable to suffer from something damaging, deleterious or disadvantageous”. These definitions make no distinction between potential and actual danger. We accept that there may be degrees of danger and that a danger may range from something that is no more than possible to something that is probable and that in some contexts danger will be so speculative or unreal as to be insufficient to be regarded as a danger in any real sense. In the end whether an allegedly dangerous situation is caught by a statutory provision which is aimed at its prevention must be considered in the light of the statutory context in which it is used.” [emphasis added]
41. We agree that the meaning of the word “danger” must be considered in the light of the statutory context in which it is used. Thus McCartney and Fowler are of very little assistance. Further, in this matter there is a decision of the Full Court of the Federal Court which is directly in point and which explains how the term “incurred danger” is to be interpreted in the context of the Act.
42. Mrs Winneke submitted that Thompson recognises a mere risk of or liability to danger as sufficient, provided it is more than “fanciful or minimal”. Mr Douglass submitted that Thompson provides that an actuality of danger is required and that it is a matter of analysing the relevant facts to consider whether the test is met. He submitted that there was no evidence to suggest that at the relevant time Japanese Forces were operating in the area of the voyage to Scott Reef.
43. The passage on which Mrs Winneke relied was quoted from the headnote. Mr Douglass relied on the full passage in the reasons of the Full Court which is at 356 and reads as follows:
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 danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.
The above appear to have been the principles applied by the Tribunal in its decision. The Tribunal said: “The section talks about ‘at a time when the person incurred danger’, not at a time when the person might have incurred danger or might have thought that danger might be there. Danger must be real and not fanciful. It must consist of more than the shadows of the night. It must arise as a direct result of the activities of hostile forces of the enemy. It must arise in the area in which the applicant serves.
44. We accept Mr Douglass’ submission that the Full Court expressly rejected the concept of danger being incurred where there is “a mere risk of danger”. The Full Court said “Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury”. The Full Court quoted with approval the principle, from the reasons of the Tribunal, that:
Danger must be real and not fanciful….It must arise as a direct result of the activities of hostile forces of the enemy. It must arise in the area in which the applicant serves.
45. Their Honours added, at 357:
We have already stated that the liability to danger in the sense of risk of danger is not sufficient. The statutory provision requires that danger be incurred.
46. We find that there were no activities of hostile forces of the enemy in the Timor Sea in the area in which HMAS Echuca was sailing, while Mr Gray was serving on that ship in September 1944.
47. We make that finding on the evidence of Mr Piper that there were no Japanese naval or air operations (other than observation flights by Dinah aircraft) in the vicinity of Scott Reef in late 1944. We note his evidence that the Japanese Airforce was a “spent force” by September 1944, and was interested only in defensive operations, and that the Japanese Naval units which were in range of Scott Reef were engaged in the evacuation of Japanese troops from Timor to the Philippines and Japan.
48. We do not find that Scott Reef was part of a “theatre of war” as submitted by Mrs Winneke. We find that the fact that the Japanese could have attacked Scott Reef had they wanted to do so, does not satisfy the test of “incurred danger”, in the light of the evidence that they never conducted any operations in the area of Scott Reef at any relevant period.
49. We find that the Report of Proceedings for HMAS Echuca for September 1944 does not support the view that the ship incurred danger in that month. The Commanding Officer’s concerns were mainly:
a) Equipment problems and shortages
b) Desirability of training for officers
c) Provisioning
d) The health of the crew
50. The Report of Proceedings contains no reference to any apprehension of enemy attack or of any enemy sightings or contacts or of receipt of any warnings of possible enemy activities in the area.
51. We find that by September 1944 the war had moved north to Java and the Philippines. The area that HMAS Echuca was operating in was no longer of interest to the Japanese Forces. The German submarine U862 was not close to Scott Reef and its presence was well known to the Allied intelligence.
52. We find that Mr Gray did not “incur danger from hostile forces of the enemy” while serving on HMAS Echuca. Therefore, he has not rendered “qualifying service” so as to make him eligible to the medical benefits provided in s 85(4A) of the Act.
53. The decision under review will therefore be affirmed.
54. There is however one matter which was raised by Mrs Winneke and which we suggest requires consideration by the Department of Veterans Affairs. Mrs Winneke explained in her opening that in lodging his claim for a Gold Card, giving entitlement to medical benefits under the Act, Mr Gray relied on a Facts Sheet, IS 57, published by the Department of Veterans Affairs. That document correctly explains the concept of qualifying service as follows:
What is qualifying service?
Qualifying service is one of the eligibility criteria for service pension. If you are a veteran but do not have qualifying service you are not eligible for service pension.
Qualifying service in respect of World War II is service during a period of hostilities, in operations against the enemy, at a time when the person incurred danger from hostile forces of the enemy.
The period of hostilities is 3 September 1939 to 29 October 1945, inclusive.
55. However, it then goes on to say:
Service outside Australia
Qualifying service is based on actual hostilities. The dates that are accepted for the purpose of other types of service can differ from the formal dates of peace treaties and from dates for operational service. ….
You have qualifying service if you served outside of Australia in any of the following areas at the specified time (dates are inclusive):
Service in these areas at these times is automatically qualifying service:
The European theatre – 3 September 1939 to 5 May 1945
Indian/Pacific areas (other than Papua New Guinea and New Britain – 3 September 1939 to 15 August 1945.) [emphasis added]
56. After reading that Facts Sheet, Mr Gray believed that his service on the voyage to Scott Reef was service outside Australia in the Indian/Pacific area and, thus, that he had “automatically qualifying service”. Mrs Winneke pointed out that, although Facts Sheet IS 57 (A2) was updated on 2 March 2004, the wording quoted above was not changed.
57. Because the Act does not refer to the concept of “automatically qualifying service” we did not need to decide whether Scott Reef is outside Australian waters. However, we do recognise that the Facts Sheet was misleading to Mr Gray. It led him to believe that if he had service outside Australia in the Indian/Pacific area it would be “automatically qualifying service” without it being necessary for him to establish that he “incurred danger from hostile forces of the enemy”. We suggest that consideration be given to amending the Facts Sheet to remove the reference to “automatically qualifying service” and by adding the words “will probably”, or something similar, to the sentence so that it reads:
You will probably have qualifying service if you served outside of Australia in any of the following areas at the specified time ….
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer, and Mr Ermert, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 26 April 2004
Date of Decision 28 May 2004
Counsel for the Applicant Ms S Winneke
Advocate for the Respondent Mr R Douglass
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