Hamilton and Repatriation Commission

[2003] AATA 427

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1250

VETERANS' APPEALS DIVISION		)
Re		KENNETH DAVID HAMILTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO 

Date9 May 2003

PlaceSydney

Decision The Tribunal does not have jurisdiction to review the decision of the Repatriation Commission made on 20 August 2002, affirming a decision made on 17 July 2002.

[Sgd] Rear Admiral A R Horton, AO

Member

CATCHWORDS

VETERANS’ AFFAIRS – eligibility for Gold Card - whether Applicant is a “veteran” – whether tribunal has jurisdiction to review decision regarding eligibility for Gold Card – application of section 175 of the Veterans’ Entitlements Act 1986

Administrative Appeals Tribunal Act 1975 – section 25

Veterans’ Entitlements Act 1986 – sections 5, 5c, 6, 7, 7A, 7C, 35, 57, 79, 80, 85, Part V, 115, 118ZS, 118ZU, 135, 175, 176, 177, 178, Schedule 1 clause 3

Defence Act 1903 – section 30

Re Stewart-Moore and Repatriation Commission [1999] AATA 573

REASONS FOR DECISION

9 May 2003	REAR ADMIRAL A R HORTON AO
MEMBER

1.      Mr Kenneth Hamilton, the Applicant in this matter, seeks review of a decision made on 17 July 2002 by a delegate of the Repatriation Commission (“the Respondent”), and confirmed under section 57 of the Veterans’ Entitlement Act 1986 (“the Act”) on 20 August 2002, that he is not eligible for the Gold Card pursuant to sections 85(4A) and 85(4B) of the Act.  The Applicant lodged an application for review by the Administrative Appeals Tribunal on 28 August 2002.

2. At an initial hearing before the Tribunal on 7 March 2003, Mr Hamilton was represented by Mr D Christie, an Advocate for the RSL Welfare and Benevolent Institution. Mr J Marsh, Senior Advocate, represented the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”).

3.        Following discussion of legislation relevant to this matter, it was agreed that the legislation in terms of the inter-relationship between sections of the Act, and the explanatory memorandum in respect of recent amendments needed further consideration.  With the agreement of both parties, the Tribunal adjourned the hearing in order to allow preparation of written submissions by each party, these submissions to be considered at a resumed hearing.   The Tribunal reminded both parties that depending on the outcome, the question of whether the Tribunal had jurisdiction to review the matter would need to be addressed (ReStewart-Moore andRepatriation Commission [1999] AATA 573 being of relevance).

4.        The hearing resumed on 28 March 2003, the following documents being taken into evidence:

Exhibit A1Applicant’s Statement of Facts and Contentions dated 11 December 2002

Exhibit A2Applicant’s Submission dated 20 March 2003

Exhibit A3Statement by the Applicant to the Tribunal on 7 March 2003

Exhibit R1Respondent’s Statement of Facts and Contentions dated 12 December 2002

Exhibit R2Respondent’s further Submission dated 17 March 2003

Exhibit R3Veterans’ Entitlements Amendment (Gold Card Extension) Act 2002 (No12, 2002)

Exhibit R4Veterans’ Entitlements Amendment (Gold Card Extension) Act 2002 Explanatory Memorandum

Exhibit R5     Minister of Veterans’ Affairs Media Release dated 14 March 2002

BACKGROUND

5.        Mr Hamilton, the Applicant, was born on 2 April 1926 in Croydon, England, where he lived until migrating to Australia in 1951.   He served in the Royal Navy from 1943 to 1947, his service details being at T5.  In the course of that service, the Applicant was at sea escorting convoys operating in the Atlantic and to Russia, and in 1944, he was on board HMS Glenroy when that ship was sunk by enemy action..  The Respondent accepted without question the history given by the Applicant, and the record of his war service.

6.        Following his naval service, Mr Hamilton became a merchant mariner, initially serving in the British merchant fleet, before transferring to the Australian merchant fleet in the “late 1940s”..  During both the Korean and Vietnam conflicts, he volunteered his services to the Department of Shipping and Transport, but no requirement arose, and he continued serving in the merchant service.   In 1975, he was transferred to Darwin for a period by the Australian Stevedoring Industry Authority to assist in the efficient restoration of stevedoring services after Cyclone Tracey.

7.        At T6, and as confirmed in oral evidence, the Applicant subsequently served as an Intelligence Officer in the Australian Security and Intelligence Organisation (“ASIO”), an organisation he believes to effectively be the “[F]ourth Defence Service”, and one in which his period of operational service was “at least comparable to a term of duty such as Korea, Malaya or Vietnam”.      

8.        The Applicant was invited to read a prepared statement in the course of giving his brief evidence.  He stressed that he had lived in Australia for more than 50 years, and after his retirement from active work in the merchant fleet and then ASIO, had continued to serve his country in a voluntary capacity in the Nyngan flood emergency, at the Olympic and Paralympic games and currently with the New South Wales Police (Missing Persons and Tourist Liaison Unit).

9.        Mr Hamilton applied for the Gold Card under section 85 of the Act on 9 July 2002.  The primary decision by the Respondent was to the effect that, whilst the Applicant had rendered qualifying service as a Commonwealth veteran during World War 2, he was not eligible for the Gold Card under sections 85(4A) or (4B) of the Act, as he had not been a member of the Australian Defence Force, nor had he been domiciled in Australia or in an external Territory before enlistment in the Royal Navy (either of which would have met the legislative requirements under section 85 as a “veteran” as it is applied under Part V of the Act).

10.      This decision was affirmed and the reasons further amplified following review under section 57A of the Act on 20 August 2002.

LEGISLATION AND ISSUES

11.      Before the Tribunal, the Advocate for the Applicant confirmed that the issues of merchant service, in the context of volunteering during the Korean and Vietnam conflicts, and service as an officer in ASIO, would not be pursued.  That is, as there is no post-World War 2 issue, section 85(4A) of the Act is relevant as to the Applicant’s eligibility for the Gold Card.   The Applicant relies on an interpretation of the relevant legislation that would show the eligibility of a Commonwealth veteran resulting from World War 2 service.  The Respondent, on the other hand, considers that the Applicant does not meet the legislative criteria of “veteran”.   

12.      Section 85(4A) of the Act, coming under Part V (Medical and other Treatment), defines the provisions relating to the Gold Card as relevant to World War 2 service and the Applicant’s claim.  That provision was inserted by the Veterans’ Entitlements Amendment (Gold Card) Act 1986 (“the Gold Card Amendment Act”) which came into operation on 1 January 1999.  It provides that:

“A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

(a)       the veteran is 70 or over; and

(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and

(c)either:

(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or

(ii)the veteran has notified the Department in writing that he or she seeks eligibility for such treatment.”

13.      In this matter, the Respondent accepts and the Tribunal finds that the Applicant is over 70 years of age, and has rendered qualifying service by dint of his Royal Navy service. The Respondent submitted, however, that Mr Hamilton did not satisfy the criteria in section 85(4A) in that he was not a veteran, having never served in the Australian Defence Force, or been domiciled in Australia or an external territory immediately before enlistment in the Royal Navy. 

14.      “Veteran” is relevantly defined, in section 5C(1) as it applies to Part V (Medical and other treatment) of the Act to mean:

“(a)      a person (including a deceased person):

(i)who is, because of section 7, taken to have rendered eligible war service; or

…”       

15.      Section 7(1) of the Act relevantly states:

“(1)     Subject to subsection (2), for the purposes of this Act:

(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and

(b) …

(c)a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and

…”

Subsection 7(2) is not relevant to this matter.

16. Operational service as it applies to World Wars, is defined in section 6A of the Act. It requires a person to have been a member of the Defence Force (which is further defined in section 30 of the Defence Act1903 as consisting of the Australian Navy, Army and Air Forces), or alternatively, as per section 6A of the Act, to have been a “member of the naval, military or air forces of a Commonwealth country or of an allied country who was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in those forces”, and to have undertaken “continuous full-time service…”.

17.      The issue as to whether Mr Hamilton is a veteran in the context of eligibility for the Gold Card must therefore be considered against this primary legislation.  Section 80 of the Act is also of relevance as it refers to interpretation of matters arising under Part V of the Act.

CONSIDERATION AND DECISION

18. The initial consideration is to establish whether the Tribunal has the power to reviews decisions in respect of Gold Card eligibility. The Tribunal’s power to review decisions is found in Part X of the Act, wherein section 175 sets out those decisions in respect of which an application may be made to the Tribunal. Such specific power is afforded to the Tribunal by the legislation at sections 25(1) and (4) of the Administrative Appeals Tribunal Act 1975..  No provision is made in section 85(4A) (or in section 85 per se) of the Act, for review of a decision as to eligibility for the Gold Card.

19.      The Tribunal in Re Stewart-Moore (supra) had regard to the specific provisions in section 175, and considered five classes of decisions contained therein in respect of which an application for review may be made:

“21. The first, found in sub-section 175(1), provides that an application may be made to the Tribunal where a decision made by the Commission has been reviewed by the Veterans' Review Board ("VRB") after a request had been made to it under section 135. The decisions specified in section 135 are concerned with claims for pensions under section 14, increases in those pensions or applications for attendant allowances under section 98. None of those decisions is concerned with a person's eligibility for a Gold Card.

22. The second class of decisions is specified in sub-section 175(2). It comprises those decisions made in response to requests made under section 57 to review decisions in relation to a claim for a qualifying service determination under section 35B, a claim for a service pension or income support supplement, in relation to financial hardship under section 52Y, cancelling, suspending or terminating a service pension or income support supplement, reducing or increasing the rate of a service pension or income support supplement or refusing a request for an increase in the rate of a service pension or income support supplement. In response to those requests, the Commission may make a decision affirming or setting aside the decisions it has earlier made (section 57B). Again, none of the decisions relates to a decision made to determine a person's eligibility for a Gold Card under sub-section 85(4A). I will return later to decisions made in relation to a claim under section 35B.

23. The third class of decisions, specified in sub-section 175(2AAA), comprises those decisions made by the Commission under section 79U either affirming a decision made in response to a request for review made under sub-section 79T(1) or setting such a decision aside and substituting another. A request for review may be made under sub-section 79T(1) in relation to a decision regarding an advance payment of an amount of pension. It does not provide for the review of decisions relating to a Gold Card.

24. The fourth class of decisions is specified in sub-section 175(2AA). It comprises those decisions made by the Commission under section 118ZU either affirming a decision made in response to a request for review under section 118ZS or setting such a decision aside and substituting another. A request for review may be made under section 118ZS in relation to a seniors health card. Seniors health cards are dealt with in Part VIIC of the VE Act. In so far as eligibility for that card depends in part upon a person's being a veteran, there is a similarity between the qualifications which must be met by a person seeking a seniors health card and a person seeking a Gold Card. Beyond that, however, any similarity is purely fortuitous. One significant difference is the requirement that a person must meet an income test before he or she is eligible. No such test is applicable in determining a person's eligibility for a Gold Card. Clearly, the provisions of section 175(2AA) do not provide for review of decisions relating to a Gold Card.

25. The fifth class of decisions is specified in sub-section 175(4).. It comprises those decisions made by the Commission in respect of an application for a clothing allowance, funeral benefits, decoration allowance, Victoria Cross allowance, recreation transport allowance, temporary incapacity allowance or loss of earnings allowance referred to in sub-section 115(1). Again, there is no reference to an application for a Gold Card.

26. It follows that section 175 does not give the Tribunal power to review a decision made in relation to a person's eligibility for a Gold Card. No other provision in Part X of the VE Act gives it power. Those remaining provisions of Part X are concerned with such matters as the application of the AAT Act (section 176), the effective dates of certain determinations relating to the payment of pension or seniors health card (section 177) and the period of operation of certain decisions of the Tribunal (section 178).

27. No other provision in the VE Act or any other enactment gives the Tribunal power to review a decision made in relation to an application for a Gold Card. …”

20.      Subsequent to the decision in Re Stewart-Moore (supra), section 175 of the Act has been amended by Veterans’ Affairs Legislation Amendment (BudgetMeasures) Act2000, No 157 and Veterans’ Affairs Legislation Amendment (2001Budget Measures) Act 2001, No. 102. The former inserts section 175(5) into the Act, a provision which relates to the children of veterans pursuant to section 116. The latter inserts section 175(1A) into the Act which relates to pension verification pursuant to section 13AG and section (2AAAA) of the Act which provides the authority for review of compensation matters arising under sections 93 and 93ZB of the Act. These amendments do not disturb the findings in Re Stewart-Moore (supra) in respect of section 175. They make no reference to, or provision for, the Tribunal to review a decision made in relation to an application for the Gold Card.

21.      Qualifying service was not in issue before this Tribunal, having been conceded by the Respondent.  However the Tribunal in Re Stewart-Moore addressed this matter, noting that whilst the Tribunal did not have jurisdiction in respect of Gold Card eligibility pursuant to section 175, the matter has been elsewhere considered under the provisions of section 35B of the Act. The Tribunal in that case considered that to be a somewhat artificial construction of the form completed by those seeking a Gold Card, but “a pragmatic construction which … provides an avenue of review where none is provided for review of the ultimate determination”.      

22.      The Tribunal in Re Stewart-Moore concluded at para 30 that :

“ In respect of the other criteria specified in sub-section 85(4A) there is, however, no right of review. In particular, there is no right of review from a decision as to whether or not a person is a veteran. That is the criterion which the Commission has decided that Mr Stewart-Moore does not meet. It is the criterion which the Commission has determined that Mr Stewart-Moore does not meet on his claim for a Gold Card. His not meeting that criterion is fatal to his claim that he is eligible for a Gold Card.”

Similarly the Tribunal in this matter finds that it has no power to review the decision rejecting the claim of the Applicant for a Gold Card. 

23.      Whilst not proceeding to a review of the determination of the Respondent, the Tribunal feels it appropriate to comment on the statement given by the Applicant in evidence(Exhibit A3).  As noted at paragraph 11, the Applicant did not seek to pursue before the Tribunal the matters of volunteering for service with the Department of Shipping and Transport during the Korean and Vietnam wars, nor for his service with ASIO.   The Tribunal readily accepts that Mr Hamilton has been a ‘loyal’ Australian citizen for over 50 years and that he well served the Australian merchant marine and government, but it is appropriate to emphasise that had such matters been pursued, and had the Tribunal the authority to review the determination of the Respondent, they could only have been considered in the context of the relevant legislation.  Similar considerations would apply to the matters of eligibility under Australian legislation of those citizens who served in Commonwealth or allied forces.

24.      The decision of this Tribunal is that it does not have the power to review the determination of the Respondent dated 17 July 2002, which was affirmed by the later decision of 20 August 2002.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton, AO:

Signed:         L Bonouvrie
  Associate

Date/s of Hearing  28 March 2003
Date of Decision  9 May 2003
Advocate for the Applicant             Mr D Christie
Advocate for the Respondent       Mr J Marsh