Jones and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 860
•10 November 2015
Jones and Repatriation Commission (Veterans’ entitlements) [2015] AATA 860 (10 November 2015)
Division
VETERANS' APPEALS DIVISION
File Number
2014/6086
Re
Catherine Iris Jones
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 10 November 2015 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that Mrs Jones is eligible for a Repatriation Pharmaceutical Benefits Card.
..........................[sgd]..............................................
Regina Perton, Member
Catchwords
VETERANS’ ENTITLEMENTS – Repatriation Pharmaceutical Benefits Card – whether applicant had qualifying service in United Kingdom Navy during World War 2 – whether applicant was in an area outside the United Kingdom at a time when she incurred danger from hostile forces of the enemy in that area – decision set aside – applicant is entitled to the Repatriation Pharmaceutical Benefits Card.
Legislation
Veterans’ Entitlements Act 1986 ss 5B, 5C, 7A, 93M, 93Z
Cases
Repatriation Commission v Thompson (1988) 44 FCR 20; (1988) FCA 212
Secondary Materials
Guildhall Press, The War Years, Derry 1939-45 (1992) Guildhall Press, [Derry, N. Ireland]
REASONS FOR DECISION
Regina Perton, Member
10 November 2015
Mrs Catherine Jones is a widow aged 90 years. Mrs Jones served in the British Women’s Royal Naval Service (WRENS) during and after World War Two from May 1944 to February 1946. She was 18 years old on enlistment.
Commonwealth veterans who have been Australian permanent residents for at least 10 years and are aged 70 years or older are entitled in limited circumstances to a Repatriation Pharmaceutical Benefits Card (the Card). The Card allows a person to obtain medicines at a discounted rate, similar to that obtained by persons on a pension. Mrs Jones is a self-funded retiree who is not on an age pension.
There are a number of ways of qualifying for the Card. They include having been at sea, in the field or in the air during a period of hostilities where the person incurred danger from hostile forces of the enemy; rendering war-like service or being awarded particular service or campaign medals. The period of hostilities includes World War Two.
Mrs Jones lodged her claim for the Card on 11 August 2014. On 25 August 2014 her application was refused by a delegate of the Repatriation Commission (the Commission) on the mistaken basis that Northern Ireland was a neutral country during World War 2. Mrs Jones applied for internal review on 28 September 2014. On 15 October 2014 the review delegate affirmed the decision but pointed out that Northern Ireland was considered part of Britain during the war.
Mrs Jones, who has been an Australian resident for more than 65 years, believes that she qualifies for the Card on the basis that she incurred danger from hostile enemy forces while serving outside her country. She states that the danger was incurred when she undertook a number of crossings of the Irish Sea, part of which was international waters. A number of historians have reported that German submarines and other enemy vessels were present in those waters. Mrs Jones recalls the evasive actions taken by the boats on which she was a passenger in an attempt to avoid becoming an enemy target.
RELEVANT LEGISLATION
Section 93M of the Veterans’ Entitlements Act 1986 (the Act) sets out who is eligible for the Card.
93M Who is eligible?
(1) A Commonwealth veteran, an allied veteran or an allied mariner is eligible for a pharmaceutical benefits card under this Part if the veteran or mariner:
(a) is 70 years of age or older; and
(b) has rendered qualifying service during a period covered by paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1); and
(c) has been an Australian resident for a continuous period of at least 10 years.
Note 1: For qualifying service see section 7A and Division II of Part III.
Note 2: For Australian resident see section 5G.
…
Section 5C of the Act as it was at the date of claim set out the relevant definition:
Commonwealth veteran means a person who rendered continuous full-time service as a member of:
…
(c) the women’s branch of the naval, military or air forces;
of a Commonwealth country during a period of hostilities.
Period of hostilities was defined in s 5B of the Act as including:
(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); …
What constitutes qualifying service is set out in s 7A of the Act. The pertinent provision that Mrs Jones submits is relevant is s 7A(1)(b):
…
(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:
(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
...
IS MRS JONES ELIGIBLE FOR THE CARD?
Mrs Jones’ service with the WRENS from May 1944 to February 1945 included being based at “Maydown” Royal Naval Air Station in Londonderry, Northern Ireland. The Commission’s review delegate determined that Mrs Jones did not serve outside Britain during her service with the WRENS, stating:
…
Northern Ireland is considered to be part of Britain during World War II, as a consequence Mrs Jones’ service in Northern Ireland cannot be seen as having served outside of Britain during World War II.
On-line research undertaken as part of this review could also find no evidence of bombings in Northern Ireland or the Irish Sea during 1945 when Mrs Jones was stationed or in transit to or from ‘Maydown’ Royal Naval Station.
…
Further evidence and submissions have been provided to the Tribunal since the review delegate’s decision made in October 2014. Mrs Jones told the Tribunal that she recalled crossing the Irish Sea at night. The ship was darkened and the passengers were told to be silent. On each crossing the vessel zigzagged its way across the sea. Ms Jones and other passengers were required to remain inside in the cabin and not venture onto the deck. Mrs Jones believed the crossing took around eight hours. Mrs Jones could not recall the size or name of the vessel but recalled that there were many troops on board. Everyone had to wear lifejackets.
Dr John McCarthy, historian, prepared a report dated 27 February 2015 at the request of the Commission.
…
… It has proven impossible to discover the name or type of vessel which the veteran sailed in or indeed from which port. What is possibly the shortest route from the United Kingdom to Ireland, Stranraer to Larne, has been chosen to determine if Mrs Jones was outside a Commonwealth country during her crossings…
In 1944 – 45 distance measurement it was 44.6 miles from Stranraer to Larne. Today the crossing takes two hours and 30 minutes. It might well have taken longer in late 1944 early 1945 given the evasive action mentioned by Mrs Jones… The use of the terms Territorial Waters and International Waters become relevant. The Territorial Waters of a state are those waters which in 1944/5 extended three miles from the coast and were regarded as part of the sovereign territory of the state. Today a 12 mile limit has become almost universally accepted. International Waters are regarded as the sea which lies outside the Territorial Waters of a state and thus are not regarded as forming part of any sovereign state.
Although there appears to be confusion as to the number of crossings the Veteran made during her service she should have made at least four. It might therefore be argued that she would have spent the greater part of each crossing in international waters and thus outside the sovereignty of the United Kingdom, her place of enrolment into the WRENS. If this argument is accepted it would follow the Veteran was outside the defined Commonwealth country during the larger part of her sea crossings.
This report now turns to the question, did the Veteran during her period of service incur ‘…danger from hostile forces of the enemy’? You ask: were enemy submarines in the vicinity of Mrs Jones’ ship/ferry when she made her sea crossings and may she have incurred danger from enemy mines?
In September 1944 German naval forces were committed to a submarine campaign with some 120 U-Boats concentrated in United Kingdom coastal waters aimed at attacking British shipping from the Cornish coast, to the Irish Sea and as far north as the Scottish east coast. The attacking force included the conventional type V111 boat and the new formidable type X111 powered by a closed system fuelled by liquid hydrogen and equipped with a schnorkel tube…
The coastal U-Boat campaign had success in that it sank over 100,000 tons of allied shipping in the Irish sea from September 1944 to February 1945. Given the concentration of U-Boats in the Irish Sea and environs, it might be reasonable to argue crossing the Irish sea in this period entailed the definite risk of ‘…incurring danger from hostile forces of the enemy’. Although there is no direct evidence that enemy submarines were in the vicinity of the vessel Mrs Jones travelled in, there must be such a most probable, possibility.
You ask if the veteran in the course of her crossings would have incurred danger from enemy mines. This is a difficult question because mines in themselves cannot discriminate the allegiance of their target. As early as 1940 extensive British mine fields were established around the coast of the United Kingdom. There were two mine fields laid at the southern approaches of the Irish Sea and another off the western coast of Northern Ireland…. There were also German mine laying submarines. The British Royal Navy laid down various minefields during 1945 to counter the increasing number of U-Boats operating around British coastal waters particularly in the Western approaches off south Ireland…
…
This report argues Mrs Jones was outside the Commonwealth country as defined during her sea crossings, that there were enemy submarines in the vicinity of her ship at the time of her crossings, that there was a possible hazard of free floating mines being encountered during her crossings and that she incurred the strong probability of danger from enemy forces during these crossings.
…
Mrs Jones provided copies of pages from a publication, The War Years: Derry 1939-45, which showed 43 U-Boats that had surrendered at the end of the war parked at Lisahally docks in Ireland, Londonderry’s port. The description of the formidable threat they posed to the Allied forces was also highlighted in that and other publications.
Both parties suggested Repatriation Commission v Thompson (1988) 44 FCR 20; (1988) FCA 212 (at 12) could provide guidance to the Tribunal.
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.
There have been many cases in the Tribunal and the courts considering whether particular service personnel incurred danger during their service and whether they were outside the country of their service. Mr Rudge, on behalf of the Commission, cited several of them, which have gone in differing directions depending on the particular facts.
In this instance, based on the evidence and historical literature provided by Mrs Jones and Dr McCarthy’s report, the Tribunal is satisfied that there is strong evidence that there were many U-Boats present in the Irish Sea posing considerable danger for boats crossing the Irish Sea in late 1944/early 1945. The manner in which the ship carrying Mrs Jones undertook the crossings, namely in the dark, in silence, zigzagging and the route taken is an indicator that there was danger to those travelling and manning the ships/ferries.
The Tribunal is satisfied, on the balance of probabilities, that Mrs Jones incurred danger in international waters during a period of hostilities whilst serving as a member of the WRENS. While she was based in the United Kingdom serving in England, Scotland and Northern Ireland, she was required to travel through international waters to undertake that service. Those waters are widely documented as posing a threat to shipping through the stationing of many U-Boats in international waters. The Tribunal therefore finds that Mrs Jones meets the requirements set out in s 7A(1)(b) of the Act.
Mrs Jones’ service records confirm that she was a member of the WRENS during World War 2. Mrs Jones is now 90 years of age. The Tribunal is satisfied on the basis of the oral and documentary evidence that Mrs Jones meets the Australian residency requirement. The Tribunal is therefore satisfied that Mrs Jones meets the criteria in s 93M of the Act and is therefore entitled to the Card.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mrs Jones is eligible for a Repatriation Pharmaceutical Benefits Card.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ..............................[sgd]..........................................
Associate
Dated 10 November 2015
Date of hearing 7 September 2015 Advocate for the Applicant Ms B. Jones Advocate for the Respondent Mr K. Rudge
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