Lee and Repatriation - [2002] AATA 313

DECISION AND REASONS FOR DECISION [2002] AATA 313

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/977

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM JACKSON LEE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A. Argent, Member

Date6 May 2002
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – qualifying service – whether allotted for duty – no written instrument allotting for duty – whether warlike service – decision affirmed
Veterans' Entitlements Act 1986 ss 5B (2)(a), 5C(1), 7A(1)(iii) and (iv),

Repatriation Commission v Doessel (1990) 95 ALR 704

Repatriation Commission v Davis (1990) 94 ALR 621

Re King (K) and Repatriation Commission (1995) 39 ALD 156

Re Buckham and Repatriation Commission (AAT 12735, 27 March 1988)

Re Graham (No1) and Repatriation Commission (AAT 479 , 2 July 1998)

Re Graham (No2) and Repatriation Commission [2000] AATA 337

Graham v Repatriation Commission [2001] FCA 422

Re Paterson and Repatriation Commission (AAT 840, 28 October 1998)

Re Smith and Repatriation Commission (AAT 640, 13 August 1998)

Re Gibbs and Repatriation Commission [1999] AATA 223

REASONS FOR DECISION

6 May 2002 Mrs Joan Dwyer, Senior Member Mr A. Argent, Member

This is an application under section 175(2) of the Veterans' Entitlements Act 1986 ("the Act") for review of a decision of the Repatriation Commission made 21 February 2001 which found that Mr Lee did not render qualifying service within the meaning of that term in s 7A(1)(iii) or (iv) of the Act (T documents p21). That decision was affirmed on 26 June 2001 (T documents pp3-6).
At the hearing Mr Horan represented Mr Lee on behalf of De Marchi and Associates. Mr Douglass, an advocate with Department of Veterans' Affairs appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
The sole issue in the matter is whether Mr Lee's service with the Australian Army from 20 April 1966 to 19 April 1970 (as set out in the T documents and exhibit R1) includes a period of qualifying service as defined in the Act. It is not in dispute that Mr Lee served in Malaya from 21 September 1967 to 7 February 1968 and again from 25 March 1968 to 20 August 1969 and that he served in Thailand from 8 February 1968 to 24 March 1968. The two relevant sub-paragraphs of s 7A(1) are (iii) and (iv). They provide that a person has rendered qualifying service 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; or
(iv)rendered warlike service;
. . .
As to sub-paragraph (iii) the respondent submitted at paragraph 3.3 of its Statement of Facts and Contentions:
Subsection 5B(2) deals with the concept of being 'allotted for duty'. It specifies that a person is only allotted for duty in an operational area if they have served in an operational area specified by Schedule 2 of the Act and been allotted for duty in that area 'by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act'. In this case, the Applicant briefly served in an operational area specified in the Act (see Item 7 in Schedule 2), from 21 September 1967 to 30 September 1967. However, he has not been allotted for duty in that area, within the meaning of the act and accordingly does not meet the requirements of subsection 7A(1)(a)(iii).
Section 5B so far as relevant provides in sub-section (2)(a):
(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;
. . .
There is no dispute about the fact that Mr Lee's service in Malaya from 21 September 1967 to 30 September 1967 was service in an area described in item 7 of column 1 of schedule 2 of the Act namely:
The territories of Malaysia, Brunei and Singapore and the waters adjacent to those countries.

However, in order for that service to be "qualifying service" Mr Lee needs to have also been "allotted for duty" within the meaning of the definition in s 5B(2). As explained in the reconsideration decision of 26 June 2001 "no personnel or units of the Defence force were allotted for duty [in Malaysia] after 14 September 1966".

Mr Horan submitted that 2 Field Troop RAE had been allotted for duty in the area of Malaysia prior to 14 September 1966, and that Mr Lee had been posted as a replacement to a sub-unit which had been previously allotted for duty in that area. Mr Horan could not produce any written instrument issued by the Defence Force as required by s 5B(2)(a) of the Act.
That contention had not been made in the applicant's Statement of Facts and Contentions. Mr Douglass was therefore not prepared for that matter to be raised. He suggested that he provide to the Tribunal the information on the Department of Veterans' Affairs file as to allotments for duty in the area covered by item 7 in column 1 of schedule 2.
The Tribunal adjourned while that information was obtained and faxed to the Tribunal. It was received as exhibit R3. It consisted of a statement showing Australian Army allotments for duty in the operational area described in Item 7 of schedule 2 of the Act. There was a relevant entry for 2 Tp (RAE) 11 Fd Sqn (RE), but it covered only the period 30 March 1965 to 31 July 1965.
Mr Horan submitted that there must have been an allotment for duty at the relevant time, as otherwise there would have been no authority to post Mr Lee and others to Leong Nok Tha to work on the airfield nearby.
That submission treats "allotment for duty" under s 7A(1)(iii) of the Act as if it meant the same as "directed" or "appointed" or "posted" or "assigned" to a particular area or operation. That was the view taken by the Federal Court in Repatriation Commission v Davis (1990) 94 ALR 621 and Repatriation Commission v Doessel (1990) 95 ALR 704. However the current definition of "allotted for duty" in s 5B(2) of the Act was specifically introduced to avoid the interpretation previously given to the term by the Federal Court.
The Tribunal has held in a number of decisions to which we were taken by Mr Douglass, that the current definition can only be satisfied by a written instrument complying with the description in s 5B(2) of the Act, namely that it be issued by the Defence Force for use by the Repatriation Commission in determining a person's eligibility for entitlements under the Act. In Re King (K) and Repatriation Commission (1995) 39 ALD 156 at p160 the Tribunal explained:
The concept of "allotment for duty" formerly referred to in s 5(12) of the Act is now found in s 5B(2). It was introduced in its present form by the Veterans' Entitlements Amendment Act 1991 (No 72 of 1991) (Cth) to ascribe to it the specific meaning that the allotment be by the administrative act of a written instrument; thus overcoming the previous rejection by the Federal Court in Repatriation Commission v Doessel (1990) 95 ALR 704; 21 ALD 107 which equated the phrase with "posting" or "assignment" to duty in the area.
That interpretation was adopted in Re Buckham and Repatriation Commission (AAT 12735, 27 March 1988) and in Re Graham (No1) and Repatriation Commission (AAT 479 , 2 July 1998) (which was successfully appealed on another issue), and in Re Graham (No2) and Repatriation Commission [2000] AATA 337 . An appeal from that decision was dismissed, Graham v Repatriation Commission [2001] FCA 422. It was also adopted in Re Smith and Repatriation Commission (AAT 640, 13 August 1998) and Re Paterson and Repatriation Commission (AAT 840, 28 October 1998).
We respectfully agree that the interpretation given by the Tribunal in those decisions to the term "allotted for duty" is required by the definition in s 5B(2) of the Act. Mr Lee does not satisfy the second limb of the definition in s 7A(1)(iii) and thus we cannot find that his service in Malaya was qualifying service.
The second aspect of Mr Lee's application concerns paragraph 7A(1)(a)(iv). Mr Lee claims that he "rendered warlike service". That term is defined in sub-section 5C(1) of the Act as follows:
warlike service means service in the Defence Force of a kind determined in writing by the Minister for Defence to be warlike service.
The T documents at page 7 include a determination of warlike service made by the Minister for Veterans' Affairs for and on behalf of the Minister for Defence on 4 January 2001. That determination relates to service rendered as a member of the Defence Force in North East Thailand (including Ubon) at any time during the period from and including 25 June 1965 to and including 31 August 1968. That period includes Mr Lee's service in North East Thailand. The service, which is specified in the determination to be warlike service, is service while a part of a specified unit. Although the units mentioned include the unit with which Mr Lee was serving while he was in Thailand, namely, 2 Field Troop RAE, the operation on which Mr Lee served was not either of the specified operations, OPERATION CROWN, or OPERATION POST CROWN, but a later operation, OPERATION RAMASOON. That operation, as explained in the report of Writeway Research Service (R1), was similar to operations CROWN and POST CROWN in that they all involved construction of the airfield at Leong Nok Tha.
From the report of Writeway Research Service (R1) it seems difficult to understand why operations CROWN and POST CROWN would be regarded as war like service, but not operation RAMASOON. Mr Church, the author of that report, wrote in paragraphs 5-8, in response to the question whether operation RAMASOON was a distinct operation or part of operations CROWN and POST CROWN:
In the 1960s the decision was taken by the FARELF planning staff to build an all weather airfield in northeast Thailand to support the British Commonwealth contribution to the defence of that sector under the terms of SEATO Plan 4. This plan was devised to defend Thailand against an attack by Chinese Communist Forces through Laos and across the Mekong River. The British Commonwealth area of responsibility was the right bank of the Mekong River from MUKDAHAN in the north to opposite UDORN RATCHATORNI, the capitol [sic] of Ubon Province, in the south, a distance of about 50 miles.
The airfield was to be constructed near the village of LEONG NOK THA about 45 miles north of the UBON airbase in the period from 1963-64 in an operation known as CROWN. The surface laid during that period was of tarmacadam. This proved to be inadequate and incapable of carrying loaded C130 Hercules aircraft. In consequence, it was decided to remove the tarmacadam and replace it with a 25 cm layer of concrete. This second task was carried out in the 1965-66 period and was known as Operation POST CROWN.
In 1968, some additional construction work was necessary to make the airfield more habitable and to improve the road access from the south. This work was completed under the codename of RAMASOON. In the main, the work during this operation was performed by the British element of 11 Independent Field Squadron RE. However, an Australian detachment of 11 tradesmen under the command of LT IJK McLean the Troop Officer of 2 Field Troop, also took part. The claimant was one of the members of this small detachment.
Operation RAMASOON could be considered to be an integral part of the construction of the airfield at LEONG NOK THA. Yet as Operation CROWN was distinct from Operation POST CROWN, so Operation RAMASOON was also distinct from the other two operations, although still part of the whole. However, the Australian detachment was not allotted for duty in terms of sub-paragraph 7A(1)(a)(iii) of the Veterans' Entitlement Act 1986, although Operation RAMASOON falls within the period covered by the schedule signed by the Minister on 4 January 2001.
The Tribunal suggested to Mr Douglass that Mr Church seemed to be of the view that there was no real distinction between Operation RAMASOON and the two operations which had been determined to be "warlike service". Mr Douglass told the Tribunal that he understood that the Repatriation Commission had asked the Department of Defence whether the determination of 4 January 2001 should be amended, but had been told that there was no intention to amend the determination. As explained in Re Gibbs and Repatriation Commission [1999] AATA 223, the Tribunal cannot find that Mr Lee meets the requirements of s 7A(1)(a)(iv) in the absence of a declaration by the Minister, that his service was warlike service.
We have no discretion in these matters. We can understand Mr Lee's submissions that the Act is intended to be beneficial, but we cannot vary or ignore the terms of the legislation. The statutory definitions of "allotted for duty" and "warlike service" are binding on this Tribunal. The facts do not support a finding that Mr Lee had qualifying service as defined in s 7A(1)(iii) or (iv).
The decision under review must be affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Mr. A. Argent, Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  6 May 2002
Date of Decision  6 May 2002
Counsel for the Applicant        Nil
Solicitor for the Applicant         De Marchi and Associates
Counsel for the Respondent    Nil
Departmental Advocate           Mr R Douglass