Madden and Repatriation Commission (Veterans' entitlements)

[2021] AATA 3558

Madden and Repatriation Commission (Veterans' entitlements) [2021] AATA 3558 (6 October 2021)

Division:VETERANS' APPEALS DIVISION

File Number:          2021/0275

Re:George Madden

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:6 October 2021  

Place:Melbourne

The Tribunal affirms the decision under review.

....[sgd]....................................................................

R Cameron, Senior Member

Catchwords

VETERANS’ AFFAIRS – benefits and entitlements – whether the Applicant is a veteran – whether the Applicant rendered qualifying service - Veterans Entitlements Act – not a member of the defence force – not a veteran – decision affirmed

Legislation

Air Force Act 1923 (Cth)
Air Force Regulations 1927
Defence Act 1903 (Cth)
Income Tax and Social Services Contribution Assessment Act 1936-1951 (Cth)
Instrument for Allotment of Persons under the Veterans Entitlements Act 1986 (Cth)
Instrument for Determining Eligibility under the Veterans Entitlements Act 1986 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

Secondary Materials

Stephens, Dale, Sutherland, Peter and Creyke, Robin, Military Law in Australia, (The Federation Press, 2019)

Glozier Matthew, 75 Years Aloft: Australia Air Force Air Training Corps 1941 - 2016, Australian Air Force Cadets, 2016

REASONS FOR DECISION

R Cameron Senior Member

6 October 2021

INTRODUCTION

1. The Applicant seeks a review of a decision made on 26 October 2020 by a delegate of the Respondent affirming a previous decision of the Respondent which determined that the Applicant is not a veteran as defined in section 5C(1) of the Veterans’ Entitlements Act 1986 (“VEA”) as he is not taken to have rendered eligible war service because of section 7 of the VEA.

   ISSUES BEFORE THE TRIBUNAL

2. The issues before the Tribunal are quite discrete. They may be broken down into two parts as follows:

   (a)Is the Applicant a veteran within the meaning of section 5C(1) of the VEA?; and

   (b)Did the Applicant render “qualifying service” within the meaning of section 7A of the VEA?

   RELEVANT FACTS

3. Between 22 September 1951 to 19 August 1955, the Applicant served as a member of the Victorian Squadron, Air Training Corps. He left that organisation upon turning 18.

4. From 7 January 1957 until 25 March 1957, the Applicant undertook National Service in the Royal Australian Air Force (“RAAF”).

5. From 19 August 1957 to 27 July 1965 he served in the RAAF’s Active Citizen Force.

6. This case centres around what occurred between 15 December 1954 and 26 January 1955.

7. In January 1955, the Applicant was one of three Victorian cadets who represented the Victorian Air Training Corp Squadron on an Australian Air Training Corp goodwill tour of Malaya. This goodwill tour occurred during what was known as the “Malayan Emergency”.

8. There was evidence before the Tribunal of the Applicant’s travel itinerary on this tour.[1] He spent the period between 4 January 1955 and 23 January 1955 in Malaya.

   [1] Details of the Applicant's itinerary were helpfully summarised in paragraph 13 of the Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2021.

9. It is important to note that the Applicant relies upon several documents in support of his contention that he qualifies as a veteran which should be referred to.

10. The first document is a “Certificate that a Member is traveling on Duty” signed by Group Captain Fleming 7 December 1954. The contents of the document are referred to in their entirety. The operative part of that document states that Group Captain Fleming certified that the Applicant was a member of the RAAF during the period 3 January 1955 until relieved travelling in the course of his duty as such a member.

11. The second document is a document signed by Flight Lieutenant, Commanding, Rogers, Victorian Squadron, Air Training Corps dated 22 November 1954. The contents of this letter are referred to in their entirety. However, it includes a paragraph which states as follows:

    “For information, selections will be finalised by 20^th November 1954, and arrangements will then be made for the three selected cadets to be attached to Base Squadron, RAAF Laverton for inoculation and the necessary administrative action prior to embarkation”.

12. A further document is described as an “Extract from ATC Record of Service Book - with flying log records”. That document contains an entry for 15 January 1955 which records the Applicant as an observer for a supply drop in an RAF Vickers Valetta (VX 493).

13. There was evidence that the Applicant participated in the supply drop on 15 January 1955. He stated he was an observer on that flight undertaken on that day in a RAF Vickers Valetta supply aircraft. The purpose of the mission was to undertake a supply drop necessary to maintain a fort in an area where the enemy was located. The supply drop was to support security forces in Malaya. It was said that the forts were built in “bandit infested areas in an endeavour to bring the native population under the British side”.[2] The Applicant stated that this information was given to him at the briefing session on the flight which he attended as part of the aircrew.

    [2] See the Applicant's submission of 17 July 2021 in response to the Respondent's submission of 14 July 2021. In that submission the Applicant stated the information was communicated to him at the briefing session before the relevant flight.

14. The flight departed from RAF Kuala Lumpur and passed Ipoh to a fort located approximately near the Malaysia Thailand border. It was described as a mountainous and remote region. Supplies were dropped by parachute after several manoeuvres were taken by the pilot caused by the terrain to position the aircraft and the optimum position to give effect to the drop. In the words of the Applicant it was “not a normal transport flight”. According to the Applicant the RAF airman in charge produced to him a crew manifest in which he and his other cadet colleague were listed as observers. He states that on the flight he acted as an observer in a supply drop in enemy territory at the height of the Malayan emergency.

15. Further documentary evidence relied upon by the Applicant included an extract from the Argus newspaper of 4 February 1955 headed “Local boys have adventures in stormy Malaya”, referring to the Applicant and a fellow cadet, which included the following quote: “They skimmed across the Malayan jungles in military aircraft dropping supplies and ammunition to British forces fighting the terrorists”.

16. An extract from a book known as “75 Years Aloft” in the chapter “Australian Air Force Cadets, 1941-2016”, “Cold War”, was in evidence. There was reference to the Applicant spending almost a month in Malaya in January 1955 at the high point of the “Malayan Emergency”. In one passage concerning the Applicant’s trip to Malaya it said of the Applicant and a colleague:

    “They experienced the adventure of skimming across the canopy of the Malayan jungles in a Valletta, dropping supplies and ammunition to British forces fighting local Malay insurgents. According to the cadets, they were “terribly excited” because they knew if the Valetta crashed in the jungle there was little chance of survival”.

    CONSIDERATION

    Did the Applicant render qualifying service?

17. Section 5C(1) of the VEA defines a veteran as being a person who is, because of section 7 taken to have rendered eligible war service. Section 7A(1)(a) determines whether a person has rendered qualifying service. It requires the person concerned at the relevant time to have been a member of the Defence Force.

18. The Respondent contends that the Applicant was not a member of the Defence Force in January 1955 within the meaning of section 7A(1)(a). The reason for this being that the Air Training Corps were not, as a matter of law, part of the Defence Force at that time.

19. The starting point for this contention was to examine the language used in section 8 of the Air Force Act 1923 subsection (4) which stated that “A cadet in the Air Training Corps is not a member of the Air Force”. Subsequent legislation regulating the Air Force has continued to enact similar provisions such that a cadet in what is now known as the Australian Air Force Cadets is not a member of the Air Force.

20. The Air Force Regulations 1927, rules 40 - 483 established the Air Training Corps. Rule 482 provides the “Cadets of the Air Training Corps shall not be deemed to be airmen within the meaning of these regulations”.

21. Section 62C of the Defence Act 1903, provided a cadet is not a member of the Defence Force. The term “cadet” is defined to include what are now known as the Australian Air Force Cadets.

22. Reference was also made to the learned text “Military Law in Australia”.[3] The authors relying on section 62C state that cadets are most clearly not part of the Australian Defence Force (“ADF”). Cadets are described as not part of the structure of the ADF although they are a subsidiary organisation of it.

    [3] Dale Stephens, Peter Sutherland and Robin Creyke, Military Law in Australia (The Federation Press, 2019).

23. Section 31(1) of the Defence Act 1903 provides that permanent forces shall consist of personnel who are bound to continuous naval or military service for a term.

24. It should be observed that the term “member of the Defence Force” is defined in section 5C(1) of the VEA. That definition includes a person appointed for continuous full-time service with a unit of the Defence Force. “Continuous full-time service” is defined in section 5C(1) in relation to a member of the Defence Force, as service in the Air Force of the Commonwealth of the kind known as continuous full-time Air Force service. The Respondent contends, and the Tribunal agrees, that there is simply no evidence pointing to the Applicant being appointed for continuous full-time service with a unit of the Defence Force (Air Force) and he was not bound to serve in that capacity for a specified term.

25. Therefore, he did not render qualifying service within the meaning of the section. As he did not render qualifying service within the meaning of the section, he was therefore not within the definition of a member of the Defence Force.

    What is the effect of the documentary and other evidence relied upon by the Applicant?

26. The Applicant placed emphasis on the documentary evidence that has been referred to earlier in these reasons. His contention is that such documents are good for all purposes and are sufficient to demonstrate that he formally became a member of, and subject to RAAF discipline and entitlements, for the period concerned. He further submits that whilst cadets in the Air Training Corps are not members of the Defence Force, there is no reason to conclude that he could not have been attached or detached to the RAAF.

27. The first document relied upon is the letter of 22 November 1954 from Flight Lieutenant, Commanding, Rogers. In particular two passages from that letter were relied upon. The first passage says that cadets would be attached to Base Squadron RAAF Laverton for inoculations and the necessary administrative action prior to embarkation. The second part of the penultimate sentence stated that “cadets should be available to the RAAF from approximately 15 December 1954 to 26 January 1955”. The Applicant said that these passages demonstrate adequately that he was formally a member of the RAAF during that period.

28. The letter of 22 November 1954 should be read as a whole and with a degree of realism. It starts by stating that the Applicant is under consideration for a party of three cadets who would travel to Malaya in January 1955. Nowhere does it say that such cadets would become members of the RAAF. Had that been the intention it would have been very easy to say so. The fact that the cadets were to be attached to Laverton is on a plain and ordinary construction of the language used confined to the purposes of inoculation and administrative action not as a member of the RAAF. To do so places too strained a construction on the language used and its context.

29. As for the sentence concerning cadets’ availability to the RAAF from approximately 15 December 1954 to 26 January 1955, on their true and proper construction the words used can only mean their availability for the purposes of the trip to Malaya and nothing more. The language used in this letter is also consistent with the legal reality of the situation that the cadets are not part of the structure of the ADF though they are a subsidiary organisation of it. In this context it was perfectly understandable that for the purpose of the visit to Malaya by the cadets concerned, that there would be interaction with the RAAF in the way it occurred and is described in the letter. It did not elevate them to members of the RAAF.

30. The Certificate signed by Group Captain Fleming on 7 December 1954, was for the purposes of section 212A of the Income Tax and Social Services Contribution Assessment Act 1936-1951. That Act required persons leaving Australia to obtain a certificate. Section 212A provided that the previous two sections do not apply to members of the Defence Force who are certified to be travelling in the course of their duties. It would seem that this certificate was granted to the Applicant to avoid the necessity of having to comply with requirements for civilians. In the view of the Tribunal, it does not elevate the Applicant to a member of the Defence Force in the relevant sense. The Applicant contended that if the certificate is good for tax purposes, it is good for all purposes. The Tribunal does not accept this contention.

31. As for the Applicant’s participation in the supply drop on 15 January 1955 in the RAF Vickers Valetta, the Tribunal does not consider that this act or these events elevated him to a member of the RAAF. The log records recorded him as an “observer” rather than a crewman or someone who was actively participating in the conduct of the mission concerned. There is no doubt that the Applicant flew in the supply drop on 15 January 1955 over airspace that did have an enemy below. However, that did not make him a member of the RAAF. It is easy to see how enthusiastic cadets would have taken the opportunity to travel as observers on the aircraft during a supply drop. The Tribunal acknowledges that the Applicant’s log records was signed by a British officer Flight Lieutenant Challenger. However, that does not of itself provide further evidence that he became or was indeed a member of the RAAF.

    Was the Applicant allotted for duty within the meaning of section 7A(1)(a)(iii) of the VEA?

32. Section 7A(1)(a)(iii), provides that a person has rendered qualifying service if as a member of the Defence Force they have “rendered service outside of 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 in that area”.

33. It is acknowledged that the Applicant was outside Australia in an area described in the relevant Schedule.

34. In evidence before the Tribunal was “Instrument for Allotment of Persons under the Veterans Entitlements Act 1986” dated 28 December 2000. This is the applicable instrument for the purposes of section 7A(1)(a)(iii). An examination of that instrument reveals that the only RAAF unit allotted for duty in Malaya at the time the Applicant was present was the Number 1 Bomber Squadron. The Applicant was not a member of that squadron. Therefore, he does not satisfy the requirements of section 7A(1)(a)(iii).

    Did the Applicant render warlike service within the meaning of section 7A(1)(a)(iv)?

35. Section 5C(1) VEA contains a definition of “warlike service”. Such definition means “service in the Defence Force of a kind determined in writing by the defence minister to be warlike service”.

36. There have been no determinations made that service in Malaya was warlike service within the meaning of that section.

37. Accordingly, the Applicant does not satisfy the provisions of section 7A(1)(a)(iv).

    Is the Applicant a veteran within the meaning of section 5C(1) of the VEA?

38. A veteran as defined in section 5C(1) the VEA as a person who because of section 7 is taken to have rendered eligible war service.

39. Section 7(1)(a) provides that “a person who has rendered operational service shall be taken to have been rendering eligible war service”. Operational service is defined in sections 6 to 6F.

40. Section 6C(1) deems a party to a rendered operational service in an operational area while so rendering continuous full-time service if they did so as:

    (a)A Member who was allotted for duty in that area; or

    (b)A member of the unit of the Defence Force that was allotted for duty in that area.

41. As noted above the only RAAF unit allotted for duty in Malaya at the time of the Applicant’s visit in 1955 was the Number 1 Bomber Squadron. The Applicant was not a member of that Squadron.

42. Section 6D(1) applies to a member of the Defence Force who, or as a member of a unit of the Defence Force was, assigned the service in Singapore at any time during the period from 29 June 1950 and including 31 August 1957. This is during the period that the Applicant visited Singapore on his trip to Malaya. However, the section only applies to the member or the unit of the member if it is included in a written instrument issued by the Defence Force. The applicable instrument for the purposes of this section is the Instrument for Determining Eligibility under the Veterans Entitlements Act 1986 dated 28 December 2000. This instrument was in evidence before the Tribunal at the hearing of this application. As observed and contended for by the Respondent, the only RAAF unit identified in the instrument and assigned for service in Singapore during the relevant time in question was again the Number 1 Bomber Squadron. The Applicant was not a member of that Squadron. Therefore, he does not satisfy the requirements of this section.

43. Section 6F VEA provides that a member of the Defence Force is taken to have been “rendering operational service during any period of warlike service or non-warlike service of the member”. Both warlike and non-warlike service are defined as meaning the service in the Defence Force of a kind determined in writing by the Defence Minister.

44. There have been no warlike or non-warlike service determinations in writing by the Defence Minister concerning service in Malaya and certainly not for the period that the Applicant was present in 1955. Therefore, the Applicant does not satisfy the provisions of section 6F.

45. By reason of the foregoing matters the Applicant is not a veteran within the meaning of section 5C(1) of the VEA.

    Other instruments concerning Malaya

46. Mention should be made of another instrument in force concerning Malaya made by the Minister for Veterans’ Affairs under section 5R(1)(a) of the VEA on 18 December 1987. It applies to certain religious and charitable organisations who attended battlefield such as the Salvation Army. The Applicant does not come within the provisions of this instrument.

    DECISION

47. Due to the reasons discussed, the reviewable decision is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

........[sgd]..........................................

Associate

Dated: 6 October 2021

Date of hearing:	22 July 2021
Applicant:	Self-represented
Advocate for the Respondent:	Ken Rudge