Jacobs and Repatriation Commission
[2001] AATA 432
•21 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 432
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/94
VETERANS' APPEALS DIVISION )
Re NATHAN JACOBS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr. I.R. Way, Member
Date21 May 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................(Signed)..............................
I.R. WAY
MEMBER
CATCHWORDS
VETERANS' APPEALS – Qualifying service – Gold Card – whether the applicant incurred actual danger
Veterans' Entitlements Act 1986: s85(4A), 7A
Willcocks v Repatriation Commission (1992) 28 ALD 646
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
Mr. I.R. Way, Member
This is an application by Nathan Jacobs (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent), dated 19 September 2000 as affirmed by a service pension review officer on 10 January 2001, that the applicant had not rendered qualifying service within the meaning of section 7A of the Veterans' Entitlements Act 1986 (the Act) and therefore was not eligible for a Gold Card, pursuant to section 85(4A) of the Act.
The parties agreed that the Tribunal should proceed to make its decision on the papers before it, without proceeding to a formal hearing. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T10) and an outline of the application for review furnished by the respondent.
The applicant served in the Australian Army during World War II from 3 April 1941 to 27 April 1942. He did not serve outside Australia or in Townsville or Darwin.
The applicant stated at T8;
"I did volunteer in 1941. Passed A1 for overseas service in which I had received all my overseas equipment.
I had no choice to where I was sent.
My records show that I did do active service as we had live amunition (sic) and patrolled 24 hours a day to where we were sent.
This must prove we were expecting trouble as we were exposed to danger and risk at the time and why were we sent there when they were needing men overseas so badly."
In the applicant's claim for qualifying service at T5 the applicant, in response to question 15:
"Did you experience danger from hostile enemy forces, including within Australia, at a time when you were on operations against the enemy?"
stated:
"Prepared for Japanese subs – were in trenches – Wilsons Promontory"
and further at T1/3:
"I was …. discharged medically unfit….. I have been on medication ever since and has (sic) affected my way of living... I know I am only being reasonable and fair in claiming a Gold Card as it has cost me over the years. I do think the Government should get their act together and respect the ones that volunteered for service."
LEGISLATIVE FRAMEWORK
Section 7A of the Act establishes the basis upon which a veteran may be taken to have rendered "qualifying service" such that a veteran would be eligible for service pension under Part 3 of the Act.
"7A Qualifying service
(1)For the purposes of Part III 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
…..
(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 (not being war or war-like operations so engaged in as part of, or in association with, the British Commonwealth Far East Strategic Reserve in the area described in item 3 of Schedule 2 (in column 1) during the period specified in column 2 of that Schedule opposite to that description):
(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
…
(c)if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy; or
(d)if the person was, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), employed by the Commonwealth on a special mission outside Australia, and, in the course of carrying out that mission, incurred danger from hostile forces of the enemy; or
…
(h)…
(i)….
(ii)was in an area service in which would, if the person had been a member of the Defence Force, have entitled the person to the award of a campaign medal and incurred, while he or she was in that area, danger from hostile forces of the enemy."
Pursuant to s.120(4) the Tribunal is to determine this matter on the balance of probabilities.
CONSIDERATION
Within the context of the veteran's service in this case to have rendered "qualifying service", pursuant to the Act, he must have rendered service during a period of hostilities, in the field of military operations against the enemy, in an area at a time when he incurred danger from hostile forces of the enemy in that area.
There is no dispute between the parties that the veteran rendered service during a period of hostilities and the Tribunal so finds.
The respondent referred the Tribunal to Willcocks v Repatriation Commission (1992) 28 ALD 646, and Repatriation Commission v Burton (1993) 31 ALD 475, with respect to the requirements necessary to establish that the veteran had engaged in "military operations against the enemy" and further to Repatriation Commission v Thompson (1988) 82 ALR 352 with respect to consideration of whether the veteran "incurred danger from hostile forces of the enemy".
In Willcocks Cooper J found that military operations against the enemy meant activity that must be an integral part of military operations against the enemy and that this required satisfaction of two elements, namely, that the operations were of a military character and were against the enemy and at 653 stated:
"…in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.
The Full Court decision in Ahrenfeld does not support the applicant's contention that mere 'contact with' the enemy is sufficient. In that case, it was held that the expression 'actual combat against the enemy' would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. In my view the phrase 'an encounter with the enemy' does not mean mere contact with the enemy. It refers to a hostile offensive or defensive encounter or exchange with the enemy."In Burton, Olney J at 481 adopted this reasoning.
The respondent contended that although the activities of the applicant may have been reasonably incidental to military operations, they were not of themselves an integral part of military operations against the enemy.
With respect, the Tribunal adopts the approach set out in Willcocks in consideration of this matter. The Tribunal is satisfied that the veteran's service was not such that the operations he engaged in were in hostility or active opposition to enemy.
With respect to the question as to whether the veteran incurred danger from hostile forces of the enemy, the Full Federal Court in Repatriation Commission v Thompson said at 356:
"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 words "incurred danger" therefore provide an objective, not a subjective test. The respondent contended that the veteran did not, in the course of his military activities, incur danger from hostile forces of the enemy and that the possibility of Japanese submarines being in the Wilsons Promontory area at the relevant time did not amount to actual as opposed to perceived danger. After consideration of the material before it the Tribunal is satisfied that the respondent's contention is correct and that the veteran did not incur danger from hostile forces of the enemy.
After consideration of all of the material before it the Tribunal is satisfied that the applicant does not meet the essential criteria to have rendered qualifying service pursuant to the Act.
The Tribunal is mindful that the applicant has expressed concern that the Government is not giving due recognition to those who volunteered for service regardless of where they served and regardless of any disabilities they may suffer as a result of their war service. The Tribunal notes that it must consider the applicant's claim for qualifying service in accordance with statutory provisions. Any remedy for legitimate concern that the applicant may have in regard to the adequacy or otherwise of the legislation does not lie with this Tribunal.
The Tribunal affirms the decision under review.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. I.R. Way, Member
Signed: .....................................................................................
AssociateDate/s of Hearing Hearing on the papers
Date of Decision 21 May 2001
Applicant Mr. Jacobs
Respondent Mr. J. Stoner, departmental advocate
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