JOHN JORDAN and REPATRIATION COMMISSION
[2012] AATA 292
•15 May 2012
[2012] AATA 292
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2991
Re
JOHN JORDAN
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 15 May 2012 Place Brisbane The Tribunal affirms the decision under review
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Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Service with Royal Australian Navy – Dumping of radio-active waste at sea – Whether applicant rendered British nuclear test defence service under s 69B of the Veterans’ Entitlements Act 1986 (Cth) – Relevant dates not within periods of eligibility – Decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 69B, 120
CASES
Repatriation Commission v Smith (1987) 15 FLR 327
REASONS FOR DECISION
Mr R G Kenny, Senior Member
15 May 2012
BACKGROUND
John Jordan served with the Royal Australian Navy ("the RAN") from 12 September 1951 until 10 September 1957. On 22 October 2010, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), a claim for a disability pension for "malignant neoplasm of the colorectum", "malignant melanoma of the skin" and "pleural plaque". He contended that these were related to his RAN service. On 1 December 2010, the respondent rejected the claim. On 22 June 2011, the Veterans' Review Board affirmed that decision.
SERVICE, ISSUES AND LEGISLATION
It is not in dispute that Mr Jordan served with the RAN from 12 September 1951 until 10 September 1957. In order for him to have his claim accepted under the Act, he must have eligible service under the Act. The decision under review was made on the basis that Mr Jordan’s RAN service did not include any period of eligible service.
On behalf of Mr Jordan, Thomas Jehn submitted that Mr Jordan rendered eligible service in the form of “British nuclear test defence service” under s 69B(3) of the Act on 5 September 1956 and 30 August 1956 while serving on HMAS Cootamundra (“the Cootamundra”). On the first of those dates, a 44 gallon drum containing radio-active waste material was taken on Board the Cootamundra in Sydney, taken to sea and dropped overboard some 100 miles from the coast. Mr Jehn submitted that the waste material had been produced in British government nuclear tests in Australia in the 1950s. In relation to the second date, he submitted that Mr Jordan was exposed to further radio-active material on board the Cootamundra when two scientists joined the vessel and conducted experiments at sea using the radio-active isotope carbon-14.
Mr Jeff Kelly, for the respondent, conceded that Mr Jordan was on board the Cootamundra as submitted my Mr Jehn and that the events described by him occurred. However, he submitted that there was no evidence to establish a connection between the British nuclear testing and the radio-active material or the experimental work of the two scientists. Moreover, he noted that s 69B(3) of the Act provides for eligibility in only limited periods and submitted that neither of the two dates described by Mr Jehn fell within any of those periods. Accordingly, he submitted that Mr Jordan did not have British nuclear test defence service under s 69B(3) of the Act.
The issue for determination is whether Mr Jordan’s RAN service included eligible service in the form of “British nuclear test defence service” at times relevant to his claim. The standard of proof for determining that issue is set out in s 120(4) of the Act. This provision requires that such matters be determined to the Tribunal’s “reasonable satisfaction”. This imports the civil standard of proof so that matters must be determined on the balance the probabilities.[1]
[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
EVIDENCE
In his evidence, Mr Jordan confirmed the dates and events as outlined by Mr Jehn. He and another seaman had been responsible for loading the drum onto the Cootamundra from the wharf in Sydney and for scrubbing down the deck where it was stored before being dumped at sea. Department of Defence records also confirm those dates and the events described.
Mr Jehn produced the results of his very significant amount of research into British nuclear testing in Australia. However, he was unable to reveal any link between the material dumped at sea and that testing. Searches by the respondent were also unable to demonstrate any such connection.
CONSIDERATION
There is no dispute concerning the dates of Mr Jordan's service or the events described on 5 September 1956 and 30 August 1956. While I am unable to establish a connection between the radio-active material and the British testing in Australia, Mr Jordan's claim must be rejected by reason of the timing of the events described. Under s 69B(3) of the Act, three periods are listed within which eligibility may be established. The provision reads:
(3) A person rendered British nuclear test defence service while the person was a member of the Defence Force and was involved at any time during a period described in the table in the transport, recovery, maintenance or cleaning of a vessel, vehicle, aircraft or equipment that was contaminated as a result of its use in an area described in the table for that period:
British nuclear test defence service relating to work on contaminated things
Item
Period in which involvement occurred
Area where thing was contaminated
1
The period:
(a) starting at the start of 3 October 1952; and
(b) ending at the end of 19 July 1956
The area within 10 kilometres of Main Beach on Trimouille Island in the Monte Bello Archipelago
2
The period:
(a) starting at the start of 15 October 1953; and
(b) ending at the end of 25 November 1953
The area within 25 kilometres of the Totem test sites at Emu Field
3
The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 May 1963
The area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga
The only relevant periods are from 3 October 1952 to 19 July 1956; from 15 October 1953 to 25 November 1953; and from 27 September 1956 to 30 May 1963. Neither 5 September 1956 nor 30 August 1956 falls within those periods. No other events or provisions of the Act were relied on in Mr Jordan's case and I am satisfied, on the balance of probabilities, that he did not render eligible service in the form of British nuclear test defence service under the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 15 May 2012
Date(s) of hearing 3 May 2012 Advocate for the Applicant Tom Jehn Advocate for the Respondent Jeff Kelly
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