Kirk and Repatriation Commission

[2006] AATA 469

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          NoT2002/293

VETERANS' APPEALS  DIVISION		)
Re		ROBERT PETER KIRK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date30 May 2006

PlaceHobart

Decision The decision under review is affirmed.

[Sgd. C R Wright QC]

Deputy President

CATCHWORD

Veterans - veteran's entitlements - veteran claiming "qualifying service" on the ground that he was "allotted for duty" at Butterworth air base in Malaysia having passed through Butterworth over a 3 day period in August 1964 whilst returning from Thailand to Australia - meaning of "allotted for duty" under s5B of the Act - no written document as required by s5B(2)(a)

Veterans’ Entitlements Act 1986 - s5B, 7A, Schedule 2

Repatriation Commission v Davis (1990) 94 ALR 621

Repatriation Commission v  Doessel (1990)  95 ALR 704 .  

REASONS FOR DECISION

30 May 2006 The Hon C R Wright QC., (Deputy President)   

1.      The applicant Robert Peter Kirk was a member of the RAAF between 4 February 1963 and 21 March 1967.    On enlistment he was assigned the rank of Aircraftsman and on 19 May 1965 he was promoted to leading Aircraftsman.    He served with a number of different units during his period of service.    Between 28 February 1964 and 28 August 1964 he was attached to Base Squadron at Ubon in Thailand.   In the course of returning to Australia from Thailand he flew to Butterworth Air Force Base in Malaysia, arriving on 28 August 1964.   He remained at Butterworth until 30 August 1964 when he departed for Australia.

2.      The applicant claims that the time he spent at Butterworth during this 3 day period constitutes “qualifying service” for the purposes of establishing entitlement to benefits under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).   The applicant first claimed recognition of his qualifying service on 24 January 2001.   His claim at that time was based on grounds which were somewhat different from those included in the present claim, but certain aspects of both claims overlap.   His initial claim was rejected by the Repatriation Commission and he sought review by the Administrative Appeals Tribunal.    In a written decision published on 27 July 2001 member Associate Professor B W Davis AM affirmed the Repatriation Commission’s decision.

3.      The applicant made a fresh application for recognition of qualifying service on 19 August 2002.    The claim was then made in respect of his service in Ubon and the 3 day period he spent at Butterworth.   This application was again rejected by the Commission on 26 August 2002.   The decision was internally reviewed on the applicant’s request and was affirmed by the reviewing officer on 7 October 2002.   It is against this determination that the present application to review has been brought.   No issue of res judicata or issue estoppel has been raised by the respondent.

4.      The application for review was heard by me in Hobart on 19 May 2006.   The applicant appeared in person and presented his own case.    Mr M Castle appeared for the respondent Commission.    The applicant gave sworn evidence (which was not challenged) and documentary material, consisting of the registry files (including the T documents) relating to both the earlier and the present applications to review, was taken into evidence at the applicant’s request.    The applicant did not seek to review the decision under consideration insofar as it related to his service at Ubon, conceding, appropriately in my view, that such did not constitute qualifying service.

5. “Qualifying service” is defined in section 7A of the Act. The relevant provisions thereof are as follows:

“For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

(a) if the person has, as a member of the Defence Force:

…

(iii) rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area.”

6.      Some years ago the Federal Court had occasion to consider the meaning of the phrase “allotted for duty” in the decisions of Repatriation Commission v Davis (1990) 94 ALR 621 and Repatriation Commission and Doessel (1990) 95 ALR 704 . In each case the Federal Court took the view that “allotted” was synonymous with “posted” or “assigned”. This view was not accepted by the Government and, as a consequence, an amending bill was introduced into Federal Parliament and subsequently became law, whereby “allotted for duty” was given a much narrower meaning. Section 5B of the Act now provides:

“(1) …

allotted for duty in an operational area has the meaning given by subsection (2).

(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:

(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or

(b) in the case of duty that was carried out in an operational area described in item 9, 10, 11, 12, 13 or 14 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument signed by the Vice Chief of the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or

(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).”

The definition of “allotted for duty” in section 5B has undergone some minor legislative changes between 1991 and the present, but the rationale behind those amendments as stated in the Explanatory Memorandum to the bill for the 1991 Act, has remained the same.

7.      The relevant part of the Explanatory Memorandum says (inter alia) that the relevant amending clause:

“would amend relevant parts of sections 5, 6 and 36 of the Principal Act to overcome the Federal Court’s decisions in Davis and Doessel where the court construed the phrase `allotted for duty’ as being equivalent to `posted for duty’. Such a construction, if not reversed, would result in an unintended extension of the benefits under the Act to all service personnel who were in an operational area during a relevant period irrespective of the duration of that service, of the purpose of their presence in the area, of the actual duties undertaken during that period and of the fact that the Defence Force, apart from posting them to that area, had formally allotted them for service in that area.

The concept of “allotment for duty” is a special one which was developed to cater for and identify service which attracted Repatriation benefits.   It has been developed in respect of service undertaken in response to the war-like situations that have arisen since World War II and in respect of which there has been no formal declarations of war by Australia.

The Federal Court decisions [of Davis and Doessel] overlook the terms of the existing legislative provisions and the object and purpose of those provisions.   The proposed amendments are intended to overcome the Federal Court decisions by clarifying that the “allotment” process (past and present) is, firstly, a distinct administrative arrangement for the specific purpose of determining whether a person’s service was sufficiently hazardous to entitle the person to benefits under the Principal Act.”

8. The only relevant “operational area” which may apply to the applicant’s claim is that described in Item 7 of Schedule 2 of the Act. It describes the area and the relevant period of service which may support a claim for benefits as follows:

“Column 1  Column 2

Description of operational areas

7.        The territories of Malaysia, Brunei  The period from and including
           and Singapore and the waters  17 August 1964 to and         
           adjacent to those countries  including 30 September 1967

There is no doubt that the applicant was in the designated operational area (Malaysia) during part of the designated period (17 August 1964 to 30 September 1967).    The fact that he was present for 3 days only is immaterial.    The essential question is whether or not he was “allotted for duty” during that period of time.   The evidence available does not disclose the existence of a “written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act.”

9.      The applicant gave evidence that during the period when he was at Butterworth he was medically examined and debriefed.   He says that his posting to Ubon had been terminated on 28 August 1964 when he left that base.    He says that in his role as a leading aircraftsman engaged in Clerk “A” clerical duties he had become familiar with relevant Air Force procedures which were applicable at the time.    He says that at all times whilst on duty as a serviceman he was under a “chain of command” and must, therefore, have been attached, assigned or allotted to some unit at all times.   He is unable to say which, if any, unit he was attached, assigned or allotted to whilst at Butterworth, but says he must have been on the manifest of one of the units stationed at Butterworth to have received food and shelter during his 3 day stay.    The applicant says that when he arrived at Butterworth he immediately reported to Headquarters.   He submits that it should be inferred that in the absence of any evidence to the contrary that he became assigned, attached or allotted to the Headquarters unit.

10. I accept the applicant’s evidence and I can follow the logic of his arguments, but it is plain to me having considered the legislation in light of the Explanatory Memorandum that in the absence of a “written instrument” of the kind referred to in the “allotted for duty” definition in section 5B of the Act his claim cannot succeed. In theory at least it would be possible for the applicant, as the result of exercising political pressure to secure the execution of such a written instrument in terms which would establish his eligibility for benefits accruing as a result of “qualifying service” as he passed through Butterworth, but having regard to the plain terms of the Explanatory Memorandum already referred to, I would regard such an outcome as very remote, if not virtually impossible. As things stand at present it is not possible to conclude that he was allotted for duty at Butterworth.

11.     It follows from what I have said that the application for review must fail and the decision under review must be affirmed.    I so order.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  19 May 2006
Date of Decision  30 May 2006
Counsel for the Applicant         Applicant appeared in person
Solicitor for the Applicant           
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs