Iverson and Repatriation Commission
[2006] AATA 280
•6 March 2006
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2006] AATA 280
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/751
VETERANS' APPEALS DIVISION ) Re JACK IVERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date 6 March 2006
Date of Written Reasons 28 March 2006
Place Sydney
Decision The decision under review is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
VETERANS’ APPEALS – issue is whether the Applicant is a veteran – Applicant toured Vietnam on four occasions from 1967 to 1970 with the ABC Showband – Applicant received payments from Army while in Vietnam – Applicant on Nominal Role of Vietnam Veterans and received logistics support medal – Applicant not under command of Australian Defence Force – Applicant not accredited to Australian Forces Overseas Fund – Decision affirmed.
LEGISLATION
Veterans’ Entitlement Act 1986 ss 5C, 5R and 7
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly
1. On 11 November 2002 Mr Jack Iverson, a retired musician made a claim for cirrhosis pursuant to the Veterans Entitlement Act 1986 (“the Act”). He was refused because he was not a "veteran". The Veterans Review Board affirmed that decision on 27 April 2005.
2. Mr Iverson's case depends on whether any of his concert tours with the ABC Showband which made trips to Vietnam during four separate periods qualifies him to be a veteran. Those periods are as follows:
· 2 to 16 March 1967 - the first concert party.
· 22 December 1967 to 3 January 1968 - the second concert party.
· 23 December 1969 to 12 January 1970 - the third concert party.
· 16 September 1970 to 6 October 1970 - the fourth concert party.
Issues
3. The issue is whether Mr Iverson is a “veteran” within the meaning of section 5C of the Act, relevantly was he taken to have rendered operational service because of section 7 of the Act? That is, did he render operational services as set out in section 7(1)(a). .
4. It is agreed that during the concert parties Mr Iverson was performing in an operational area set out Schedule 2 of the Act, that is, Vietnam (Southern Zone) during the period including 31 July 1962 to and including 11 January 1973.
Evidence
5. Mr Iverson gave oral evidence at the hearing which I accept. It was not challenged. The following is the summary of that evidence. Before he first went to Vietnam he was taken to Victoria Barracks for briefings. He had lots of needles which caused a dreadful reaction. He had to go to bed for a couple of days. There was a lot of apprehension about his going. His wife and daughter did not want him to. He gave examples of his experiences while he was in Vietnam. His group flew into Cam Ran but were not allowed off the plane because of an outbreak of plague which was suspected to have been caused by the water. A few nights before he visited Da Nang which was in the highlands, there had been casualties caused by mortar attack. He said he was given honorary rank while under the control of the Army. The buses in which they travelled were checked inside and outside by Army personnel. They were accompanied by an Australian Captain and in the case of all trips the bus in which they travelled was accompanied by an Army vehicle for protection.
6. At Long Bien their plane was to come back because there was no accommodation. However, after they arrived they were told that there was too much activity in the area, and that they would have to stay in makeshift accommodation. They stayed in a darkened hut about 300 metres from the perimeter of the camp. Less than half a mile away there were flares, tracers and mortars. Several wounded were brought to their hut for medical attention. On another occasion their bus and escort stopped prior to their destination and they had to put on bullet proof helmets and jackets, and boarded high-sided buses. There had been a skirmish down the road and several Viet Cong had been shot.
7. Five days after visiting the 103rd Field Battery in 1967, 13 men were killed by mortar fire. When they reached Cam Ran they had to read a document entitled "Red Alert" that set out what they had to do when the bus was subject to attack. Mr Iverson had a bad dose of salmonella on one of his tours. The trips were terribly uncomfortable and he was suffering from diarrhoea. A female singer was so sick that that they had to leave her in a Singapore hospital. When he got back to Australia a doctor visited the ABC studios and told him to report once a week to the Victoria Barracks with samples until cleared. He travelled thousands of miles in jeeps and buses of which the windows were covered in wire mesh and opened very narrowly. They stayed in some bad quarters. There were lots of insects and things. A lot of people got sick. Two band members, now dead, told him they had never been right since that experience.
8. Visits to field hospitals were not required but when they could they visited them, which was greatly appreciated, as were their visits to troops. Mr Iverson said that the Army paid the tour members all allowances during the concert party tour and then paid them at the end at the airport before they left Vietnam. His going to Vietnam was voluntary. He did not remember an accreditation process to join the Australian Forces Overseas Fund (“AFOF”) which partly sponsored the concert tours he went on. They were not disciplined by the Army. He said they were all professional people and on their return it was reported how good the discipline had been. He believed that if anyone breached discipline they would have been sent home and not allowed to perform and then return to the group but nothing like that happened.
Documentary Evidence
9. In the documentary evidence Mr Iverson also stated that he was paid by the Army at the end of each musical concert tour to Vietnam (T4 p11). There was material before me about the Forces Advisory Committee on Entertainment, (“FACE”) (Exhibit A1 and A2). Its main function was the selection, formation and co-ordination of concert parties for overseas tours to entertain Australian and American serviceman. It was a select committee set up by direction from the Minister for Defence in 1966. The material also included a description of the Australian Forces Overseas Fund (“AFOF”), which was also formed in 1966 and "is concerned with the provision of such things as concert parties, recreational huts, amenities and equipment for the welfare of members of the Australian forces serving overseas".
10. An extract from FACE’s website dated 20 August 2003 stated:
The Department of Defence, with the assistance of FACE, will sponsor variety show tours.
11. It employed members of the Australian Defence Force (“ADF”). It also says:
Tour parties will generally consist of an ADF band with civilian performers attached to the band as philanthropic representatives.
12. Mr Iverson has received a certificate of appreciation from AFOF:
As a token of gratitude for your outstanding contribution towards the welfare of our troops overseas in combat areas. (T14, p 12).
13. He has also received an undated certificate:
A grateful nation expresses its thanks to Jack Iverson for contributing to Australia's effort in the Vietnam War.
14. It is signed by the Prime Minister, the local Federal member and the Minister for Veterans Affairs.
15. Finally, Mr Iverson has also received a Logistics Support Medal.
16. Mr Anthony Staunton of the Department of Veterans Affairs set out various relevant matters in an email (T8). He stated that:
·An entertainer does not have an Army service record whereas representatives of an approved philanthropic organisation would.
·…
·Entertainers were not allotted for duty in Vietnam.
·Entertainers visited Vietnam for concerts but were not posted for a tour of duty which is normally 12 months.
…
Philanthropic representatives who served with the ADF were part of the task force in Vietnam and their day to day conditions were similar to members of the ADF who they worked alongside. ….
..the Army holds records of representatives of approved philanthropic organisations and that all representatives that served in Vietnam are listed in the Nominal Roll of Vietnam Veterans under Australian Defence Force.
17. Mr Iverson is listed on that nominal role of Vietnam veterans (Exhibit R1). His listed service details include "civilian", and specify the periods he toured. The first concert party is headed "Channel 9 Brisbane" which is probably incorrect although the tour dates are correct.
18. Neither Mr Bunn who appeared for the Commission nor Ms Doran who appeared for Mr Iverson could point to any power under the Act pursuant to which the nominal role is prepared.
19. The Commission referred to the Clarke Review. Mr Pierce, Director General of Military Compensation provided a summary of the Clarke Review and an opinion about coverage and entertainers (T8 p28). The Clarke Review into veterans' entitlements considered submissions claiming that entertainers in Vietnam should have coverage under the Act. The Review recommended that access of civilians to veterans' benefits under the Act continue to be based on the principle of eligibility only for those attached to the ADF and who consequently come under the military command of the ADF. It had insufficient information to decide that and recommended further investigation. Mr Pierce states that:
On the information available, it appears the entertainers were not under the command of the ADF and therefore were not granted coverage.
20. Further it said:
Defence agrees with the Clarke recommendations … rejects the claims that entertainers in Vietnam should be covered under the VEA. .
The “1987 Ministerial Direction” Argument
21. The strongest argument put on Mr Iverson's behalf was based on the determination of 18 December 1987 made by the Minister of State for Veterans Affairs pursuant to the then section 5(13)(a) of the Act, now section 5R(1)(a), (Exhibit A3). In summary the determination was that the Act, “..shall apply to, and in relation to, a person included in the following class of person, as if that person, while rendering service of a kind specified in this determination, in an operational area described …was a member of the Defence Force who was rendering continuous full time service for the purpose of the Act.”
22. The Vietnam (Southern Zone) was relevantly an operational area under the terms of the determination.
23. The class of person and kind of service specified in the determination relied upon in this case are:
Persons who, as representatives of an approved philanthropic organisation provided welfare services to the Defence Force.
24. Relevantly AFOF was a "philanthropic organisation".
25. The question is did Mr Iverson as a representative of the AFOF provide welfare services to the defence force.
26. The only concert tour in which Mr Iverson participated that was sponsored by AFOF and the Army was the December 1969 to January 1970 concert party tour. (T10) The historian who prepared the report at T10 found no material indicating who sponsored the second and fourth tours Mr Iverson went on. The first concert tour was sponsored by the government.
27. As I have said earlier Mr Iverson volunteered to go on the concert tours. He was paid by the Army. He did not give evidence that he was a member of AFOF, and said indeed that he did not remember going through an accreditation process to join AFOF. That evidence does not support the contention that he is a representative of AFOF.
28. I also take account of Mr Staunton's evidence that philanthropic representatives who have served with the ADF were part of the task force in Vietnam and that their day to day conditions were similar to members of the ADF and that the Army holds records of representatives of approved philanthropic organisations and that all representatives serving in Vietnam are listed in the honour roll of veterans under ADF. I note that Mr Iverson is on the nominal role of Vietnam Veterans. However there was no evidence to suggest that he was recorded in Army records as a representative of AFOF.
29. He was a member of a party sponsored jointly by the Army and AFOF. It could not be said that Mr Iverson represented the Army by virtue of its joint sponsorship. Nor can it be said that he represented ADF. I assume that the wording of the FACE web page that I have referred to above that: Tour parties would generally consist of an ADF band with civilian performers attached to that band as philanthropic representatives is relied upon to support Mr Iverson's case. It does not, for several reasons. First, there is no evidence that Mr Iverson was a performer attached to an ADF band. Secondly, there is a record dated 2003 on this web page and one might infer arrangements were different then from how they were in the late 1960s and early 1970s. Finally, that the FACE website uses the language "philanthropic representatives" does not assist my interpretation and application of the 1987 Ministerial direction in Mr Iverson's circumstances.
30. On the above evidence I find that Mr Iverson was not a representative of AFOF and accordingly the Ministerial determination does not apply to him.
31. A further argument advanced in support of Mr Iverson's case relied on a Ministerial determination made on 23 December 1997 by the Minister for Defence Industry, Science and Personnel pursuant to section 5B(2)(c) of the Act. Relevantly it was argued that Mr Iverson was a person who had been allotted for duty in Vietnam (Southern Zone) and fell within a class of person specified in schedule B to the instrument. Schedule B set out "class of persons" and continued relevantly:
Members of the Australian Navy or Air Force:
(a) on staff visits to or inspections of Australian forces in Vietnam; or
(b) on equipment visits or inspections in Vietnam; or
(c) on public relations, familiarisation or welfare visits to Australian Forces in Vietnam; or
(d) on attache duties in Vietnam.
32. It was argued that Mr Iverson was on a welfare visit and that he was allotted to duty in an operational area, Vietnam (Southern Zone). The difficulty with this argument is that the Ministerial direction clearly requires that a person be a member of the Australian Navy, Army or Air Force who is on such a visit. Mr Iverson was not a member of those services. Accordingly this argument cannot succeed.
33. Ms Doran, who appeared for Mr Iverson, also pointed to his receipt of the logistics support medal, which I accept he was awarded, that he is on the nominal role of Vietnam veterans and he has received a certificate from a grateful nation for his efforts during the Vietnam War. Neither party could point to the power under the Act which related to the awarding of the medal or inclusion in the honour role of Vietnam veterans. I find that the receipt of that medal, Mr Iverson's inclusion in the nominal role and his receipt of the certificate does not establish that he is a veteran within the meaning of the Act.
Conclusion
34. Undoubtedly the entertainers who risked their lives going to Vietnam and performing for the Australian troops were courageous. However, as I understand the law, that service, although very much appreciated by the troops and the nation, has not been recognised by the legislature as entitling them to be a veteran within the meaning of the Act.
Decision
35. Accordingly the decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 3 March 2006
Date of Decision 6 March 2006
Date of Written Reasons 28 March 2006
Advocate for the Applicant Taree Vietnam Veterans' Association
Advocate for the Respondent Department of Veterans Affairs
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