McAndrew and Repatriation Commission (Veterans' entitlements) - [2022] AATA 3205

McAndrew and Repatriation Commission (Veterans' entitlements) [2022] AATA 3205 (30 September 2022)
Division:GENERAL DIVISION
File Number: 2022/0841
Re:Trevor McAndrew
APPLICANT

AndRepatriation Commission
RESPONDENT

Decision
Tribunal:Deputy President J Sosso
Date:30 September 2022
Place:Brisbane

The decision under review is affirmed.
.....................[SGD]...................................................
Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS — qualifying service — allotted for duty — warlike service — decision under review affirmed
Legislation
Defence Act 1903 (Cth)
Defence Force (Home Loans Assistance) Act 1990 (Cth)
Veterans Entitlements Act 1986 (Cth)
Cases
Chasty and Repatriation Commission (1993) 30 ALD 528
Park and Repatriation Commission [2011] AATA 31
Repatriation Commission v Davis (1990) 94 ALR 621
Repatriation Commission v Doessel (1990) 95 ALR 704
Secondary Materials
Australian Active Service Medal Regulations (Cth)
Australian Government, Department of Veterans’ Affairs, Report of the Review of Veterans’ Entitlements, January 2003
Explanatory Memorandum, Veterans’ Affairs Legislation Amendment Bill 1990 (Cth)
Veterans’ Affairs Legislation Amendment Act 1990 (Cth)
Veterans’ Entitlements (Warlike Service) Determination 2019 (Cth)
Warlike Service – Cambodia and Somalia Declaration 2008 (Cth)
REASONS FOR DECISION
Deputy President J Sosso
30 September 2022
INTRODUCTION

Mr Trevor Robert McAndrew (the Veteran) seeks a review of a decision of a Delegate of the Repatriation Commission (the Respondent) dated 25 January 2022, which affirmed a determination of another Delegate dated 27 September 2021, that the Veteran had not rendered qualifying service under s 7A(1)(a) of the Veterans Entitlements Act 1986 (Cth) (the Act) – Exhibit 1 T16 pp. 93 – 116.
The Veteran was born in October 1961 and is currently 60 years of age – Exhibit 1 T13 p. 72. He enlisted in the Royal Australian Air Force (RAAF) on 13 August 1979 in Perth and was discharged on 1 September 1996 in Sydney – Exhibit 1 T10 p. 53, T13 p. 74.
During the Veteran’s service career, he was awarded the following service medals – Exhibit 1 T9 p. 51:
(a)Australian Active Service Medal with Clasp “CAMBODIA”;
(b)Australian Service Medal with Clasp “SE ASIA”;
(c)Defence Force Service Medal;
(d)Australian Defence Medal; and
(e)Returned from Active Service Badge.
On 1 September 2021, the Veteran lodged a Claim to Determine Qualifying Service by a Current or ex-Member of the ADF – Exhibit 1 T10 pp. 52 – 53.
In his Claim, the Veteran stated that he served at RAAF Base Butterworth in 478 SQN / 3 SQN between 6 July 1982 and 11 July 1985, and with 36 SQN as part of Cambodia UNTAC – Exhibit 1 T10 p. 53.
As previously noted, a Delegate of the Respondent, on 27 September 2021, determined that the Veteran did not meet the conditions that apply for Qualifying Service as mandated by the Act. The Delegate made the following finding – Exhibit 1 T11 p. 54:
“This is because the specific requirements for Qualifying Service as a current or ex-serving member of the Australian Defence Force have not been met according to the information in your records and/or from the Department of Defence.”
On 14 November 2021,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 3205
Decision Date: 30 September 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, McAndrew, against a decision of the Repatriation Commission. The core dispute revolved around whether the applicant had rendered qualifying service for the purposes of the *Veterans' Entitlements Act 1986* (Cth) in Cambodia. The Tribunal was required to determine two primary issues: first, whether the applicant had served outside Australia in a specified operational area as a member of a unit allotted for duty, or as a person allotted for duty in that area; and second, whether the applicant's service constituted "warlike service."

The Tribunal considered the meaning of "allotted for duty" under section 7A(1)(a)(iii) of the Act. It noted that while Cambodia was an operational area and the applicant's service fell within the relevant period, the crucial element was whether the applicant had been "allotted for duty" in Cambodia. The Tribunal referred to earlier Federal Court decisions in *Repatriation Commission v Davis* and *Repatriation Commission v Doessel*, which had given an extended meaning to this phrase. However, these decisions were overturned by amendments to the Act in 1990. The Explanatory Memorandum accompanying the amending legislation clarified that "allotment for duty" was intended to be a distinct administrative arrangement, separate from the normal posting process, and specifically designed to identify service that was sufficiently hazardous to attract repatriation benefits, particularly in response to post-World War II war-like situations.

The Tribunal concluded that the applicant had not satisfied the requirement of being "allotted for duty" in Cambodia under the amended legislative framework. Regarding the question of warlike service, the Tribunal characterised this as a policy matter, suggesting the applicant was at liberty to present his case to the Executive Government. The Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Second, the question of whether the Veteran should be recognised as having rendered warlike service in Cambodia is a policy question, and as Senior Member Isenberg opined, the Veteran is at liberty to put his case to the Executive Government. Insofar as there are inconsistencies in the enactments referred to above, it may be that favourable consideration could be given to his submissions. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

No witnesses were called by either party.CONSIDERATIONIntroduction As discussed above, the only two issues before the Tribunal are:(a)did the Veteran render service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2, 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(b)did the Veteran render warlike service?Allotted for duty – s 7A(1)(a)(iii) It is not contested that Cambodia is an operational area as specified in Item 12, column 1 of Schedule 2, and that the Veteran’s service falls within the period described in column 2. However, in order for the Veteran to fall within the operation of s 7A(1)(a)(iii), the Tribunal must be satisfied that he was allotted for duty in Cambodia. Allotted for duty has a specific and limited meaning. Shortly after the Act came into force, the Federal Court considered what “allotted for duty” encompassed. In both Repatriation Commission v Davis (1990) 94 ALR 621 (Davis) and Repatriation Commission v Doessel (1990) 95 ALR 704 (Doessel), the Court gave that term an extended meaning. In Davis, French J (as he then was) observed (at 633):“…the concept of ‘allotted for duty’ has no special meaning. It raises in each case a question of fact…” In Doessel, the Full Court 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…” These decisions were overturned by the Veterans’ Affairs Legislation Amendment Act 1990 (Cth). The Explanatory Memorandum circulated with the Bill provided this explanation of the amendments – pp. 34 – 35:“Clause 37 : InterpretationThis clause, 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 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 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 declarations of war by Australia.The Federal Court decisions 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, 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.”[emphasis in original]