Manning and Repatriation Commission

[2005] AATA 1126

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1126

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/538

VETERANS’ APPEALS DIVISION		)
Re		Robert Manning

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Mr M.A. Griffin, Member

Date15 November 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Mr M. A. Griffin, Member

CATCHWORDS

VETERANS' AFFAIRS - qualifying service – whether allotted for duty - no written instrument of allotment for duty – no declaration of warlike service – the decision under review is 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

15 November 2005    Mr M.A. Griffin, Member

1. 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 which found that Mr Manning did not render qualifying service within the meaning of that term in section 7A(1)(iii) or (iv) of the Act.

2. At the hearing, Ms Doran represented Mr Manning. Mr Bunn, an advocate with Department of Veterans’ Affairs appeared for the Respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the Exhibits tendered during the hearing.

3. The sole issue in the matter is whether Mr Manning’s service with the Australian Army from 28 September 1966 to 12 January 1969 (as set out in the T documents and Exhibit A1) includes a period of qualifying service as defined in the Act. It is not in dispute that Mr Manning served with 4RAR in Malaysia from 30 May 1967 to 28 September 1967.The two relevant sub-paragraphs of section 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;

. . .”

4.      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;

. . .”

5. There is no dispute about the fact that Mr Manning’s service in Malaysia from 30 May 1967 to 28 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.”

6.      However, in order for that service to be “qualifying service” Mr Manning needs to have also been “allotted for duty” within the meaning of the definition in s 5B(2). Ms Doran submitted that 4RAR had been allotted for duty in the area of Malaysia prior to 14 September 1966, and that Mr Manning had thus been posted as a replacement to a unit which had been previously allotted for duty in that area. However, Mr Bunn produced an Instrument of Allotment issued by the Defence Force for the purposes of sub-section 5B(2) showing Australian Army allotments for duty in the operational area described in Item 7 of schedule 2 of the Act (Exhibit R1). There was a relevant entry for 4RAR but it covered only the period 01 October 1965 to 14 September 1966.

7.      Ms Doran 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 Manning and others to 4RAR in Malaysia.

8.      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 section 5B(2) of the Act was specifically introduced to avoid the interpretation previously given to the term by the Federal Court.

9. The Tribunal has held in a number of decisions that the current definition can only be satisfied by a written instrument complying with the description in section 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.”

10.     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).

11.     I respectfully agree that the interpretation given by the Tribunal in those decisions to the term “allotted for duty” is required by the definition in section 5B(2) of the Act. Mr Manning does not satisfy the second limb of the definition in section 7A(1)(iii) and thus I cannot find that his service in Malaya was qualifying service.

12.     The second aspect of Mr Manning’s application concerns paragraph 7A(1)(a)(iv).  Mr Manning claims that he “rendered warlike service”. Mr Dale gave evidence about the nature of the unit’s activities during the relevant time, likening those activities to “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.”

13.     There is no evidence of such a written declaration by the Minister in respect of the relevant service. As explained in Re Gibbs and Repatriation Commission [1999] AATA 223, the Tribunal cannot find that Mr Manning meets the requirements of section 7A(1)(a)(iv) in the absence of a declaration by the Minister, that his service was warlike service.

14. The Tribunal has no discretion in these matters. I can understand Mr Manning’s submissions that the Act is intended to be beneficial, but I cannot vary or ignore the terms of the legislation. I can understand Mr Manning’s dismay that Royal Australian Navy personnel serving in the area at the same time have been deemed to be allotted for duty. However, in the absence of a written instrument of allotment or a Ministerial declaration, the statutory definitions of “allotted for duty” and “warlike service” are binding on this Tribunal. The facts do not support a finding that Mr Manning had qualifying service as defined in section 7A(1)(iii) or (iv).

15.     The decision under review must be affirmed

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin

Signed:         Associate

Date of Hearing  18 October 2005 
Date of Decision  15 November 2005
Representative for the Applicant               Ms Doran 
Advocate for the Respondent                   Mr Bunn