Mackie and Repatriation Commission (Veterans' entitlements)
[2022] AATA 323
•25 February 2022
Mackie and Repatriation Commission (Veterans' entitlements) [2022] AATA 323 (25 February 2022)
Division:VETERANS’ APPEALS DIVISION
File Number: 2020/7687
Re:John Mackie
APPLICANT
Repatriation Commission And
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:25 February 2022
Place:Brisbane
The decision under review is affirmed.
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Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – eligibility for veterans’ gold card – whether the veteran has rendered qualifying service – whether service in an operational area as defined in Schedule 2 of the Veterans' Entitlements Act – whether “allotted for duty” – service in Hong Kong – decision under review affirmed
LEGISLATION
Explanatory Memorandum, Veterans’ Affairs Legislation Amendment Bill 1990 (Cth)
Repatriation (Special Overseas Service) Act 1962-1965 (Cth)
Veterans’ Affairs Legislation Amendment Act 1990 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Goble and Repatriation Commission (1992) 29 ALD 259
Kirk and Repatriation Commission [2006] AATA 469
McShane and Repatriation Commission [2002] AATA 1349
Repatriation Commission v Davis (1990) 94 ALR 621
Repatriation Commission v Doessel (1990) 95 ALR 704
Repatriation Commission v Hawkins (1993) 45 FCR 205
Savage and Repatriation Commission [1997] AATA 451
SECONDARY MATERIALS
Review of Veterans’ Entitlements (the Clarke Review) (Report, January 2003)
REASONS FOR DECISION
Deputy President J Sosso
25 February 2022
INTRODUCTION
Mr John Mackie (the veteran) was born in 1944 and enlisted in the Royal Australian Air Force (RAAF) on 28 August 1961. The veteran performed six years of continuous full-time service and was discharged on 27 August 1967. In the period 17 December 1962 until 21 July 1965, the veteran served with 3 Telecommunications Unit and, from 21 July 1965 until 24 July 1967, he served with Base Squadron Butterworth Detachment A, which in the latter case, involved service in Hong Kong. The veteran was not allotted for “Special Service” in a “Special Area” as defined in s 12 of the Repatriation (Special Overseas Service) Act 1962-1965 (Cth) – Exhibit 1 T4 pp. 23, 31.
The veteran served at a Royal Air Force (RAF) listening station at Little Sai Wan, which was located on the then unhabituated remote eastern part of Hong Kong Island. The RAAF provided assistance to the RAF at Little Sai Wan from 1949 until 1985.
On 19 February 2020, the veteran lodged an Application for a Gold Card for Veterans of Australia’s Defence Force – Exhibit 1 T3 pp. 25 – 30.
A veteran is entitled to a Gold Card under the Veterans’ Entitlements Act 1986 (Cth) (the Act) if three conditions are satisfied. The first two conditions, as prescribed by s 85(4B) of the Act, are:
(a)the veteran is 70 or over; and
(b)the veteran has rendered “qualifying service”.
The third condition is procedural; it relates to either the manner in which a veteran is notified of his or her eligibility for a Gold Card or has made a written application for a Gold Card.
In this matter, as the veteran was born in 1944, he was over 70 years of age when he made his application for the Gold Card.
The key issue in this matter is whether the veteran has rendered “qualifying service”. The veteran claims that the time he spent in Hong Kong constitutes “qualifying service”, whilst the Repatriation Commission (the Respondent) denies that the veteran’s service in Hong Kong constitutes “qualifying service”.
The term “qualifying service” is defined by s 7A of the Act. A person is deemed to have rendered qualifying service if they meet one or more of the criteria set out in s 7A(1). For the purposes of this matter, the relevant criterion is s7A(1)(a)(iii):
“(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…”
Schedule 2 lists 15 operational areas; however, Hong Kong is not included in any of the 15 listed areas.
Malaya, the Federation of Malaya and the Colony of Singapore, specified parts of the Federation of Malaya and the territories of Malaysia, Brunei and Singapore are all listed. Of relevance to this matter is Item 7 of Schedule 2 which provides as follows – Exhibit 1 T2 p. 19:
“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 14 September 1966”
The key issue in this matter, as Hong Kong is not listed in Schedule 2, is whether the veteran was allotted for duty in any of the areas outlined in Item 7 in the period 17 August 1964 until 14 September 1966.
The term “allotted for duty” is defined in s 5B(2), and the relevant part of the definition for this matter is as follows:
“(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…”
Attention also needs to be given to s 7A(1)(a)(iv) namely:
“(a) if the person has, as a member of the Defence Force:
(iv) rendered warlike service…”
The term “warlike service” is defined in s 5C(1) as follows:
“…means service in the Defence Force of a kind determined in writing by the Defence Minister to be warlike service.”
In short, warlike service is service which is determined by the Executive Government to be as such. In the Report of the Review of Veterans’ Entitlements (the Clarke Review – 2003) the following information was provided:
“In 1993, Cabinet agreed that warlike service refers to those military activities where the application of force is authorised to pursue specific military objectives and there is an expectation of causalities.”
On 12 June 2020, a Delegate of the Respondent refused the veteran’s claim and provided the following reasons – Exhibit 1 T5 pp. 35 – 36:
“You do not meet the Qualifying Service requirement because I am satisfied on the evidence before me that you do not meet any of the above criteria [the Delegate referred to s7A(1)(a)(iii), as well as rendering warlike service and submarine special operations from 1 January 1978 to 31 December 1992]. I note you mentioned service with Base Squadron Butterworth Detachment A Hong Kong between 10 August 1965 and 13 July 1967 on your form. Advice was sought from our Eligibility and Payments Policy Branch and they have informed me that service in Base Squadron Butterworth – Detachment A at Hong Kong is outside the operational area and does not in itself constitute operational or qualifying service.”
The veteran sought a review of this decision and, on 11 September 2020, another Delegate of the Respondent determined that he was not eligible for a Gold Card as he had not rendered qualifying service – Exhibit 1 T2 pp. 9 – 24.
When seeking a review of the initial decision, the veteran provided the following reasons – Exhibit 1 T2 p. 10:
“I Have [sic] since been in touch with some of my ex serviceman from Det.A. Butterworth, Hong Kong. They have all received gold cards. The person I roomed with at Little Sai Wan has been granted a gold card, he did six years in the RAAF as a telegraphist as I did, he spent the two years with me in Hong Kong as did several others. Some have since passed, but all received gold cards.”
In a carefully written and very detailed decision, the Delegate concluded that neither s 7A(1)(a)(i) or s 7A(1)(a)(ii) of the Act were relevant to the veteran’s service – Exhibit 1 T2 p. 21. The Tribunal agrees with these conclusions.
With respect to s 7A(1)(a)(iii), the Delegate made these observations – Exhibit 1 T2 pp. 21 – 23:
“I have examined Mr Mackie’s service records and note he enlisted in the RAAF on 28 August 1961 and was discharged from the RAAF on 27 August 1967…
In order for a person to have rendered qualifying service the VEA requires that a member of the Australian Defence Force be allotted for duty, either individually or as part of a unit so allotted, in an operational area and serve in that operational area during the designated period.
Presence in the operational area only is not sufficient for qualifying service to be granted.
Based on the available evidence I am reasonably satisfied that Mr Mackie does not meet the requirement for qualifying service under subsection 7A(1)(a)(iii) of the VEA as he was not allotted for duty and did not serve in an operational area described in Column 1 of Schedule 2, as per subsection 5B(2) of the VEA, during a period specified in Column 2 of Schedule 2.”
The Delegate also addressed s 7A(1)(a)(iv), namely whether the veteran had rendered warlike service, and made these findings – Exhibit 1 T2 pp. 23 – 24:
“A veteran may also have qualifying service if he or she has service that is determined to be warlike service by the Minister for Defence.
Warlike service is determined by the Minister for Defence on the advice from the Chief of the Defence Force.
None of Mr Mackie’s service in the RAAF has been determined to be warlike service by the Minister for Defence.
After checking the various Defence Force instruments and Determinations made by the Minister for Defence I am reasonably satisfied that Mr Mackie has not rendered ‘warlike service’ for the purposes of section 7A(1)(a)(iv) of the VEA as he was not allotted for an operation which was determined to be ‘warlike’.”
THE HEARING
Due to social distancing restrictions as a result of the COVID-19 pandemic, a Hearing was convened in Brisbane on 24 January 2022, with the parties linked in by telephone.
The veteran was self-represented and the Respondent was represented by Mr Bruce Williams.
No witnesses were called by either party.
The veteran and Mr Williams both addressed the Tribunal, and as there were no factual matters in dispute, and this matter involves a relatively small but important threshold legal issue, no testimony was required, or given, by the veteran.
CONSIDERATION
The veteran’s service records disclose that the veteran had three postings during his service.
His first posting, as previously noted, was to 3 Telecommunications Unit from 17 December 1962 until 21 July 1965. The second posting was to Base Squadron Butterworth for 21 July 1965. The third posting was to Base Squadron Butterworth Detachment A from 21 July 1965 until 24 July 1967 – Exhibit 1 T4 p. 32.
The veteran testified that, after serving with 3 Telecommunications Unit, he flew from Perth to Hong Kong via Singapore in July 1965. The Delegate in the reviewable decision made the following observations – Exhibit 1 T2 p. 23:
“In their response, Defence noted that the posting to BASQB BUT was for a period of less than one day. Defence assessed that this ‘posting’ was for administrative purposes only. It is possible that this notation may reflect that Mr Mackie travelled from Perth to Hong Kong via Butterworth. Defence located no record of Mr Mackie actually having undertaken any duties at Butterworth, or of any intent that he undertake duties at Butterworth en route to Hong Kong. Further, no evidence was found that Mr Mackie was actually a member of Base Squadron Butterworth.”
In a letter dated 20 October 2021, the veteran made the following observations – Exhibit 9:
“It is to be noted that I was in Singapore for over 24 hours July 1965 waiting for transport to HK.
It should also be noted that my main base was Butterworth from which we were detached.”
The veteran has, on a number of occasions, claimed that other persons who served with the RAAF in Hong Kong, at or around the same period that he did, have received the Gold Card and that Butterworth in Malaysia was the detachment point – Exhibit 7:
“My position hasn’t changed, if these other members who were detached from Butterworth for special duties to Little Sai Wan, have been granted the gold card, why, for the same service am I being refused. Butterworth was the detachment point for the special duties service, which we all did, so in reality whether we stayed there or not, we were detached from there for the period of detachment.”
Mr Williams, on behalf of the Respondent, made the following submissions – Exhibit 3:
“5.1The respondent contends the applicant was not allotted for duty in an operational area pursuant item 7 of schedule 2 of the Act.
5.2 The applicant’s reference to posting to Base Squadron Butterworth detachment A does not form the basis of being allotted for duty within item 7 of schedule 2 of the Act. The applicant did not proceed to Butterworth or perform any duty in the operational area comprising Malaysia including Butterworth.
5.3The applicant did not attend, perform any duty or was allotted for duty at Butterworth base…
5.4The applicant travelled by air to Hong Kong to undertake his duty via Singapore. The applicant stayed overnight at a hotel in Singapore, there is no record of performing any duty, a formal posting or allotted for duty whilst in Singapore.
5.5The applicant did perform duty as a communications officer at Little Sai Wan in the Territories of Hong Kong (Base Squadron Butterworth Detachment A) from 21 July 1965 to 24 July 1967.
5.6Duty performed at Little Sai Wan is not subject of an instrument or determination to satisfy qualifying service pursuant paragraphs (iii) or (iv) of section in 7A(1)(a) of the Act.
5.7There has been no warlike service determination in writing by the Defence Minister concerning service in Butterworth or Singapore for the relevant period.”
Dealing firstly with warlike service, no material has been presented to the Tribunal which supports the proposition that the Minister for Defence has made a determination pursuant to s 5C(1) which covers the service rendered by the veteran in Hong Kong in the period 1965 – 1967. In the absence of the existence of such a determination, the Tribunal is reasonably satisfied that the veteran did not, during the period 1965 – 1967, whilst stationed in Hong Kong, render warlike service.
The key issue for the Tribunal is to determine if the veteran was allotted for duty in an operational area pursuant to Item 7 of Schedule 2 of the Act.
Attention must first be given to the Federal Court decisions of Repatriation Commission v Davis (1990) 94 ALR 621 (Davis) and Repatriation Commission v Doessel (1990) 95 ALR 704 (Doessel).
In Davis, the veteran served on the Frigate HMAS Queensborough during the Malayan Emergency, and on 22 January 1957, the ship shelled a terrorist camp in Jahore. It was accepted that the veteran had served in an operational area, but at issue, was whether he had been allotted for duty in that area.
The Tribunal found that the veteran had been allotted for duty, and French J (as he then was) summarised the Tribunal’s reasoning as follows (at 629):
“The tribunal referred to s 5(12) of the Act which it approached as a definition of the compendious phrase ‘allotted for duty in an operational area’. It decided that the word ‘allotted’ bore its ordinary English meaning: ‘distribute by lot or in such a way that the recipients have no choice… to appoint.’
Given that Davis had no choice but to participate in the operation under review, he had been, in the opinion of the tribunal, ‘allotted for duty’. The factual material relied upon by the Commission to the contrary was virtually non-existent comprising no more than a paragraph from the letter of 23 January 1988 in which the Department of Defence advised the Commission in relation to the activities of HMAS Queenborough and HMAS Quickmatch as part of the British Commonwealth Far East Strategic Reserve: ‘The above deployments of HMAS Queenborough and Quickmatch are not recognised as allotted for operational service although it is recognised by the Defence Service Homes Corporation for the purposes of Defence Service home loans’.”
After setting out the contentions of the Repatriation Commission, French J made these observations (at 633):
“In my opinion, it is neither necessary nor desirable to go down that path when the policy disclosed by the statutory context, the legislative history and the extrinsic materials in question can adequately be recognised within the framework of the ordinary English meaning of the term ‘allotted for duty’. For acceptance of the proposition that ‘allotted for duty’ bears its ordinary meaning of direction or appointment only answers part of the question of its proper construction. Soldiers or sailors may be allotted for duty at levels ranging from the digging of latrines or cleaning of decks, to the command of an army or of a naval task force. The other part of the question of construction is — what level of allotment for duty does the Act contemplate? It must, in the present context, relate to, although it is not necessarily to be identified with, allocation to a particular operational area. The mere direction so to serve may be allotment for duty in the relevant sense. Or there may be some division of units or personnel in an operational area between those allotted for duty and those not, because, for example, the latter are not exposed or likely to be exposed to hostile action. The allotment for duty contemplated is that which designates or appoints as ‘on duty’ those who are allocated to operational service in an operational area. Where no such designation or appointment is shown, the fact of allocation to service in the operational area will suffice to answer the statutory description.
Approached in this way the concept of ‘allotted for duty’ has no special meaning. It raises in each case a question of fact...”
Attention needs also to be given to the Full Federal Court decision of Doessel. In that matter, the veteran served in the Royal Australian Navy (RAN) between 1959 and 1971. During that service, the veteran served on several naval ships including HMAS Vendetta and HMAS Melbourne. In turn, these ships operated in areas designated under Schedule 2 of the Act.
The Full Court (Lockhart, Pincus and Ryan JJ) reached the same conclusion as French J in Davis. Their Honours made the following observations (at 707 – 708):
“The natural meaning of ‘allotted for duty’ in s 6(1)(e) is such that one thinks of the requirement as being satisfied if the member is, or his unit is, sent to serve in the area in question by the responsible military authorities. The expression ‘in accordance with administrative arrangements applicable’ in s 5(12)(a) does not, of itself, raise in our minds a doubt that the ordinary meaning of ‘allotted for duty’ was intended. Presumably, there will always be some administrative arrangements under which personnel in various parts of the defence force are allotted for duty. Those arrangements, we assume, would include recognition of a particular person or body as having authority to make an allotment of the relevant kind and prescription of means of making that allotment effective…”
The Federal Parliament acted swiftly in overturning these decisions. The Act was retrospectively amended by the Veterans’ Affairs Legislation Amendment Act 1990 (Cth). The Explanatory Memorandum circulated with the amending Bill provided this explanation of the amendments (Explanatory Memorandum, Veterans’ Affairs Legislation Amendment Bill 1990 (Cth) pp. 34 – 35):
“Clause 37(b) – (e), clause 38 and clause 42, would amend relevant parts of sections 5, 6 and 36 of the Principal Act to overcome the Federal Court decisions in Davis and Doessel where the court constructed 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 to 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 not 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 declaration of war by Australia.
The Federal Court decisions overlook the terms of the existing legislative provisions and the object and purposes 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, separate from the normal ‘posting’ process which governs the movement of Defence Force personnel and, secondly, an 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.”
When these amendments were enacted, the relevant provisions were located in s 5(12), but are now located in s 5B(2). Nothing, in these proceedings, turns on the different location of these legislative provisions.
In order for the veteran to meet the allotment requirements in the Act, two elements must be met:
(a)the person or unit must be allotted for duty by written instrument issued by the Defence Force; and
(b)actual service while allotted in one or more of the operational areas described in Schedule 2.
The requirements of being allotted for duty are specific and straightforward.
First, the instrument of allotment was stated in the Explanatory Memorandum to the 1990 amending legislation as “a reference to Military Board Instructions, Australian Army Orders, Commonwealth Navy Orders, Australian Navy Orders and Written Instruments of the Royal Australian Air Force”. Accordingly, it was determined in Savage and Repatriation Commission [1997] AATA 451 that the Commanding Officer of HMAS Voyager did not have the authority to allot for duty as mandated by s 5B(2).
Second, allotment for duty in a prescribed operational area in the prescribed time period requires the rendering of some actual service, but not any particular service. The requirement is geographical and temporal, and does not impose the further requirement of inquiring into the nature of the service rendered by a veteran – Repatriation Commission v Hawkins (1993) 45 FCR 205.
Third, the Act does not mandate a minimum time period for service in an operational area. In Goble and Repatriation Commission (1992) 29 ALD 259, service on HMAS Sydney in an operational area for four days over a two-month period was sufficient for the particular circumstances of that matter. In Kirk and Repatriation Commission [2006] AATA 469, the veteran was in a designated operational area for three days. The Tribunal observed (at [8]):
“The fact that he was present for 3 days only is immaterial.”
Turning to this matter, the veteran rendered service in Hong Kong which, as previously noted, was not prescribed as an operational area pursuant to Item 7 of Schedule 2. A not dissimilar set of circumstances arose in McShane and Repatriation Commission [2002] AATA 1349. In that matter, the veteran served at various times in Singapore, Labuan, Little Sai Wan – Hong Kong, Kong Wai – New Territories, Hong Kong, and Singapore/Butterworth. He also served as a telegraphist with the RAAF. With respect to the service rendered in Hong Kong, the Tribunal observed (at [19(d)]):
“…he was not actually rendering service in the area prescribed in Schedule 2, Item 3 in the relevant period. This he must do in order to qualify under the provisions of the Act and the Tribunal, somewhat reluctantly under the circumstances, finds accordingly. It has no alternative but to do so despite the apparent contradictions of evidence referred to.”
It should be noted, in passing, that the Tribunal made some critical comments about the defence service records, and made these observations (at [27]):
“It is not appropriate for the Tribunal to initiate any such further investigation of Mr McShane's very special type of overseas service and activity. However, as previously indicated, the Tribunal is very much aware from its own experience of what at the time was involved, the secrecy that prevailed, particularly in that period, and the sort of veiled/camouflaged posting and deployment notifications that in at least some instances were used because of this…”
The veteran, in this matter, referred to the special nature of the service he rendered in Hong Kong, and the need for secrecy – Exhibit 7. In addition, the veteran suggested “that as part of signals intelligence, our work was so secret that we were lost in the system” – Exhibit 8.
There is no doubt that the special and very secret nature of the service rendered by the veteran and his comrades in Hong Kong placed them in an unusual situation, and the type of documentation that would normally be presented to a tribunal of fact is much less and more select. To the extent that the veteran raised concerns that his rights may have been diluted because of the special nature of the service he rendered, the Tribunal notes those concerns and understands the frustrations the veteran may have experienced.
However, the evidence presented to the Tribunal, despite its brevity, is clear and there is no doubt that the veteran was not allotted for duty in an operational area described in Schedule 2. Further, there is no evidence that the veteran rendered service in an operational area. The service rendered by the veteran at Little Sai Wan falls outside of any geographical area in Schedule 2. To that extent, the veteran cannot rely on the service he rendered in Hong Kong as satisfying the requirement that he was allotted for duty within s 5B(2).
The only remaining matter is the fact that the veteran travelled from Perth to Hong Kong via Singapore. Mr Williams contends that the veteran stayed overnight at hotel in Singapore, and the Tribunal proceeds on that assumption – Exhibit 3 para 5.4.
Item 7 of Schedule 2 prescribes the territories of Malaysia, Brunei and Singapore. There is no evidence before the Tribunal of any written instrument allotting the veteran or his unit for duty in Singapore.
There is no evidence before the Tribunal that the veteran visited Butterworth in this short period, let alone that any duty was carried out.
Likewise, there is no evidence that the veteran, whilst staying overnight at Singapore, carried out any duty.
Although it is not necessary for a veteran to satisfy any particular time period, there is a need for some service or duty being rendered while in an operational area. The Tribunal is unaware of any authority for the proposition that travelling to and from an airport and sleeping overnight in a hotel constitutes carrying out a duty. Even if the Tribunal is mistaken, as noted above, there is no evidence presented that the veteran was allotted by written instrument for duty in Singapore.
DECISION
The decision under review is affirmed.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
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Associate
Dated: 25 February 2022
Date of hearing: 24 January 2022 Applicant: By phone
Advocate for the Respondent: Mr Bruce Williams
Repatriation Commission
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