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, Air Vice Marshal (Retired), Gregory Evans, provided a letter in support of the Veteran – Exhibit 1 T13 p. 82.
Air Vice Marshal Evans stated that he flew as Captain on Hercules aircraft A97-001 of Number 36 Squadron on a task to Cambodia on 13 May 1993 and that the Veteran flew with him as Flight Engineer. The relevant task was to move a Blackhawk helicopter from 5 Aviation Regiment to Pochentong Airport and return via Butterworth and Darwin. The task commenced on 12 May 1993 and concluded on 16 May 1993. The complexity and nature of the task was explained by Air Vice Marshal Evans as follows – Exhibit 1 T13 p. 82:
“…The task was a challenging one because it was one of the earliest tasks to move a Blackhawk helicopter (a difficult load) and because a tactical approach and departure was required into Pochentong due to the threat of small arms fire at the time.
Flight Sergeant McAndrew played a key role in this complex, unusual tactical mission and I have a crystal-clear recollection of his presence on the crew. I did not record the Air Task Order number for the task in my log book as this was not standard practice at the time.”
On 26 November 2021, the Veteran requested an internal review of the 27 September 2021 Determination – Exhibit 1 T13 pp. 57 – 59.
Attached to the request for internal review was a letter of the same date in which the Veteran set out, at length, the basis for his request.
First, the Veteran stated that he contacted the Delegate who informed him that his name did not appear on the Instrument of Allotment of Persons – Cambodia. Consequently, as there was no evidence before the Delegate that the Veteran had been allotted for duty in the specific Operational Area, the Delegate concluded that the Veteran had not rendered qualifying service pursuant to s 7A(1)(a)(iii) of the Act. However, the Veteran contended that the Instrument of Allotment of Persons – Cambodia was incomplete, perhaps due to an administrative oversight – Exhibit 1 T13 p. 60.
Second, the Veteran contended that he met the eligibility criterion for s 7A(1)(a)(iv), namely, rendering warlike service – Exhibit 1 T13 p. 60.
The Veteran, very helpfully, set out the background to the establishment of the United Nations Transitional Authority in Cambodia (UNTAC) in the period 1991 – 1993. Suffice to say, the United Nations Security Council established UNTAC by a resolution in February 1992, and the military component of the Authority was headed by Lieutenant-General John Sanderson. UNTAC was only established for 18 months and was disbanded in August 1993, having overseen a general election in Cambodia which was held in May 1993.
Apart from Lieutenant-General Sanderson as Force Commander, Australia also contributed a Force Communications Unit and a squadron of S-70A Blackhawk helicopters from 5 Aviation Regiment based in Townsville. An Infantry Protection Platoon (2/4 RAR) was deployed with 5 Aviation Regiment for protection – Exhibit 1 T13 pp. 60 – 61.
The Veteran provided the following account of his service in Cambodia in May 1993 – Exhibit 1 T13 p. 62:
“On 12 May 1993, an C130H Hercules aircraft (A97-001) of 36 SQN [part of Air Lift Group (ALG) based at Richmond] departed RAAF Base Richmond (ASRI) for RAAF Base Townsville (ABTL) where it loaded a semi-dismantled S-70A Blackhawk from 5 Aviation Regiment.
That Blackhawk aircraft was to be the first of six aircraft deployed to Cambodia as an element of the Australian contingent to UNTAC.
A97-001 was captained by SQNLDR Greg Evans… and the Flight Engineer was myself, FSGT Trevor McAndrew.
After loading the Blackhawk, A97-001 then departed ABTL for RAAF Base Darwin (APDN) where the crew went into crew rest overnight.
On 13 May 1993, A97-001 (with the same crew, payload and heavily ladened with sufficient fuel for a round-trip to RAAF Base Butterworth – WMKB) departed APDN for Pochentong Airport – Phnom Penh (VDPP) to unload the Blackhawk. Please note that the VEA Schedule 2 lists Cambodia as an Operational Area at Item 12 – Column 1 and the 13th of May 1993 is within the period mentioned at Column 2 of the same item in that table…
On arriving at Pochentong, SQNLDR Evans executed a tactical steep approach (and equally steep departure later that same day). This type of approach and departure profile is to minimise the threat from small arms fire. All the crew were armed (myself with a sidearm and possibly the Loadmasters with longarms)…
After some 5 hours of unloading the Blackhawk, that same long day, we departed Pochentong for WMKB where the crew entered crew rest.
We safely returned to Australia 15 May 1993 (Darwin) and landed back at Richmond 16 May 1993.”
[bold in original]
The Veteran submitted that he served in Cambodia, whilst a member of the Defence Force, and that service was rendered during the appropriate period when Cambodia was declared an Operational Area – Exhibit 1 T13 p. 63.
Schedule 2 of the Act lists Operational areas. Item 12 of Column 1 describes the following area:
“The area comprising Cambodia and the areas in Laos and Thailand that are not more than 50 kilometres from the border with Cambodia.”
The Period in Column 2 for the Item is as follows:
“The period from and including 20 October 1991 to and including 7 October 1993.”
With respect to being allotted for duty, the Veteran stated that he understood that his name did not appear (nor his unit – 36 SQN) in any Instrument of Allotment pertaining to Cambodia during the period outlined in Column 2 of Item 12 outlined above. The Veteran made the following submission – Exhibit 1 T13 p. 67:
“I propose that this omission is an administrative oversight which could be rectified by an additional Instrument of Allotment of Persons – Cambodia that includes members of ALG (including myself) that supported Operation Gemini (the name for the Australian operation that encompasses the Australian military components involved with UNTAC).
…
There is precedent for issuing a retrospective additional Instrument of Allotment quite some years after the Operation and such an instrument purely lists members of ALG (perhaps originally omitted in other earlier instruments).
It has come to my attention that an additional Instrument of Allotment of Persons – Somalia 20 October 1992 to 30 November 1994 – Schedule 2 Item 14, signed by Lieutenant General Gillespie – VCDF on the 15th February 2007, which states a long list of RAAF Individuals who were crewmembers at ALG that crewed transport aircraft in support of Operation Iguana (the name given to the Somalia operations).
…
I draw to any DVA Review Officer’s attention, the date that additional Somalia Instrument of Allotment was issued – 15 February 2007. More than 12 years after Operation Iguana. I suggest that a review was instigated into why members of ALG, who crewed transport aircraft into the Somalia Operational Area, in support of the Somalia operation, were not Allotted for Duty there and that review resulted in the additional Instrument of Allotment I mention.
If an additional Instrument of Allotment of Persons – Cambodia that included aircrew from ALG, were to be issued, I would then become Allotted for Duty – VEA Schedule 2 Item 12. Meaning I would then satisfy subsection of the VEA – s7A (1) (a) (iii) – in addition to s7A(1)(a)(iv).”
The reference to “ALG” in the above quote is a reference to “Air Lift Group”.
As noted above, on 25 January 2022, a Delegate of the Respondent determined that the Veteran had not rendered qualifying service, as defined by s 7A(1)(a) of the Act, as he was not allotted for service in an operational area as listed in Schedule 2, nor did he render warlike service – Exhibit 1 T16 pp. 93 – 116.
LEGISLATION
Section 7A prescribes, for the purpose of the Act, whether a person has rendered qualifying service.
In this matter, the relevant subparagraph is s 7A(1)(a) which contains six scenarios. In order to meet the circumstances contained in any of those scenarios, the person must have been a member of the Defence Force at the relevant time. “Defence Force” is defined by s 5C to have the same meaning as in the Defence Act 1903 (Cth).
It is not contested that the Veteran was, at the relevant time, a member of the “Defence Force” – Exhibit 7 para 4.1.
It is also not contested that the circumstances prescribed in s 7A(1)(a)(i), (ii), (v) and (vi) are not relevant to the Veteran’s service in the Defence Force – Exhibit 7 paras 4.2, 4.3, 4.16 and 4.17, Transcript (Tr.) 12.9.2022 p. 6.
The two subparagraphs of relevance in this matter are s 7A(1)(a)(iii) and (iv) which are set out below:
“(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…”
Dealing firstly with s 7A(1)(a)(iii), it will be noted that there are a number of requirements that must be met.
First, a person must have rendered service outside of Australia.
It was not contested at the Hearing that the Veteran flew on Aircraft A97-001 of 36 Squadron as Flight Engineer on a flight from Richmond RAAF Base to Cambodia in May 1993, and this was a time when there were still hostilities between varying warring factions in that country. It is also not contested that the flight involved the transport of a Blackhawk helicopter.
In order to render service pursuant to s 7A(1)(a)(iii), a person does not have to meet the requirements of s 7A(1)(a)(i), namely, having rendered service during a period of hostilities in operations against the enemy in an area, or on an aircraft, at a time when the person incurred danger from enemy forces in that area or on that aircraft. Subparagraph 7A(1)(a)(iii) is of narrower and more specific operation.
Subparagraph 7A(1)(a)(i) relates to service rendered during a period of hostilities. That term is defined by s 5B(1) to include World War 1, World War 2, Korea, Malaya and war-like operations in operational areas from 31 July 1962 to 11 January 1973.
In contradistinction, s 7A(1)(a)(iii) focuses on service rendered while allotted for duty, as distinct from service in a theatre of war. In the case of Cambodia, there was no declaration of war against an enemy by the Commonwealth, and, in fact, there was no defined enemy or enemies. In such circumstances, there is no requirement that a person must have incurred danger from hostile forces. Allotment for service is an administrative mechanism which obviates the need for individual assessment as to whether a veteran, in fact, incurred danger from hostile forces. It is a deeming mechanism which allows a decision-maker to focus ultimately on a purely factual inquiry as to whether an applicant veteran was allotted for duty. However, allotment for duty is predicated on a decision-maker being satisfied that an applicant veteran, in fact, rendered service – see Chasty and Repatriation Commission (1993) 30 ALD 528.
There is no warrant for reading into s 7A(1)(a)(iii) a requirement that a veteran has rendered any particular type of service, let alone that the service involved danger. In this instance, the fact that the Veteran rendered the service outlined above is sufficient to meet the initial requirement of the subparagraph.
Next, it is also not contested that the Veteran rendered service in Cambodia during the time period outlined in Column 2 of Item 12 of Schedule 2 – Exhibit 7 para 4.5.
The key issue in this case, with respect to s 7A(1)(a)(iii), is whether the Veteran was allotted for duty.
Reference can be made to s 5B(2) which provides, inter alia, that a reference in the Act to a person allotted for duty in an operational area is a reference:
“(b) in the case of duty that was carried out in an operational area described in item 3A, 3B, 9, 10, 11, 12, 13, 14 or 15 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 signed by the Vice Chief of the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act…”
Whether the Veteran was, in fact, allotted for duty is discussed below.
The second matter raised by the Veteran is whether he rendered warlike service pursuant to s 7(1)(a)(iv).
The term “warlike service” is defined by 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 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.”
For the purposes of the definition of “warlike service” in the Defence Force, regard must be had to the Veterans’ Entitlements (Warlike Service) Determination 2019 (Cth) which, in Schedule 1, specifies 32 operations, service, in which, in the specified area and during the specified period, is deemed to constitute warlike service.
The relevance of this Determination to the facts of this matter is discussed below.
THE HEARING
An in-person Hearing was convened in Brisbane on 12 September 2022.
The Veteran appeared and was self-represented. The Respondent was represented by Mr Ben Dube.
No witnesses were called by either party.
CONSIDERATION
Introduction
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 : Interpretation
This 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]

In order for the Veteran to meet the “allotted for duty” requirements of s 7A(1)(a)(iii), he must have:
(a)been allotted for duty personally, or as part of a unit by a written instrument issued by the Defence Force; and
(b)rendered service while allotted for duty in one or more of the operational areas described in Schedule 2, and during the periods described in that Schedule.
The Tribunal accepts that, for the Veteran to satisfy the allotment for duty requirement, his name must appear in one of the following instruments of allotment for duty in the operational area described in Item 12 of Schedule 2, made by Lieutenant General John Stuart Baker, Vice Chief of the Defence Force, pursuant to s 5B(2)(b) of the Act for those persons specified in Column 1 of each Instrument for the period specified in Column 2 of each Instrument – Exhibit 1 T4 – T6 pp. 18 – 46:
(a)Instrument of Allotment of Persons dated 30 October 1993;
(b)Instrument of Allotment of Persons dated 23 July 1994; or
(c)Instrument of Allotment of Persons dated 26 August 1994.
At the Hearing, the Veteran accepted that his name did not appear in any of the three Instruments – Tr. 12.9.2022 pp. 8 – 9:
“DEPUTY PRESIDENT: Do I take it there's no dispute that your name's not on the list of persons?
MR McANDREW: There's no dispute, Deputy President.
DEPUTY PRESIDENT: If I was to spend a lot of time reading through all these names I wouldn't find your name on there.
MR McANDREW: Correct. Yes.
MR DUBE: And, Deputy President, we've gone through it and Mr McAndrew's name's not on it as well.”
I subsequently perused each of the three Instruments and determined that the Veteran’s name does not appear in any of those documents. I made a Confidentiality Direction on 30 May 2022 designed to ensure that the names of the persons allotted would not be publicly disclosed. Consequently, there is no reference in this determination to the names of any of those veterans who were allotted for service.
Mr Dube contended that, in circumstances where the Applicant’s name does not appear in any of the three instruments of allotment, he did not render qualifying service under s 7A(1)(a)(iii) – Exhibit 7 para 4.7.
Later in the Hearing, the following exchange occurred – Tr. 12.9.2022 p. 11:
“DEPUTY PRESIDENT: Before we get to the ‘warlike service’ can we turn firstly, the first submission of Mr Dube was the allotment for duty. That’s section 7A(1) paragraph (a)(iii).
MR McANDREW: I essentially accept the argument that Mr Dube’s just mentioned. I can't argue against the fact that I've not been allotted.
DEPUTY PRESIDENT: When I come to write my decision I'll look into that just to make sure that that is absolutely the case, but you're not raising at this stage any contentions to the contrary.
MR McANDREW: It's fairly black and white, Deputy President. I concede that I've not been allotted. I guess my contention is that I should've been.”
Mr Dube also addressed the submission of the Veteran that his name was not included in any of the three instruments of allotment due to administrative oversight.
There were two strands in Mr Dube’s submissions. First, he pointed out that the Tribunal had not been presented with any evidence to support this contention. Second, Mr Dube submitted that whether the Veteran’s name was excluded from an instrument of allotment due to administrative oversight is not within the scope of the Tribunal’s current review – Exhibit 7 para 4.8.
The Tribunal agrees with both of Mr Dube’s submissions.
If the Veteran’s name was omitted from the instruments of allotment due to administrative oversight, the Tribunal does not have any particular and direct evidence before it that confirms this alleged state of affairs.
The Veteran submitted that there was evidence supporting the proposition that Air Lift Group members had retrospectively being allotted for duty with respect to the Somalia operations. He then went on to submit that “the more correct characterisation of my contention is that I should have been allotted for duty based on the precedent set by the Somalia Instrument of Allotment” – Exhibit 6 paras 1.3 – 1.7.
The Tribunal is not unsympathetic to the Veteran’s submission and can appreciate his frustration that his service has not been recognised. Further, as the Veteran points out, there is at least one precedent whereby an instrument of allotment was broadened to include other persons. Clearly, the issue of which units and which persons are to be included in an instrument of allotment is a policy question, and a matter that falls outside the jurisdiction of this Tribunal. The fact that the Veteran’s name does not appear in any of the three instruments outlined above does not suggest that this omission was due to administrative oversight. The omission, more likely, is due to policy considerations by the Executive Government, and those policy considerations are, by their nature, confidential and not in the public domain.
The Tribunal understands that the Veteran strongly believes that his name should have been included in the instruments of allotment; however, the fact of the matter is that that it has not been included and the Tribunal proceeds on that basis.
Second, even if the Tribunal were presented with material which pointed to an administrative mistake, there is no power vested in the Tribunal to go behind the relevant instrument or instruments. A decision-maker presented with an instrument duly and properly made pursuant to s 5B(2) is limited to determining allotment based on the names and dates contained in the instrument. If there has been an administrative mistake, the remedy lies with the Executive Government and the relevant Vice Chief of the Defence Force.
Unfortunately, even though it is clear that the Veteran did render service in Cambodia during the period outlined in Item 12 of Schedule 2, he was not allotted for duty, and allotment in this context requires that the Veteran’s name appears in any of the instruments of allotment outlined above. The 1990 amendments to the Act were designed, as explained above, to prevent all service personnel rendering service in an operational area during the relevant period automatically obtaining the benefits of qualifying service. The objective of the 1990 amendments was to ensure that the Executive Government could determine, on a unit or individual basis, who was eligible to the particular benefits flowing from qualifying service. This approach was taken with the objective of ensuring that the purpose of a person’s presence in an operational area, the length of service rendered by a person and the nature of that person’s service could be evaluated by the Executive Government and a decision on allotment would then be made on a unit or individual basis. The mere fact that a person or unit was posted to an operational area is not sufficient, instead a formal allotment for service has been mandated.
In conclusion, the Veteran’s posting to Cambodia for the service he rendered in 1993 is not sufficient to satisfy the requirements of s 7A(1)(a)(iii).
Warlike service – s 7A(1)(a)(iv)
Australia’s involvement in Cambodia in the period 1991 – 1993, as part of UNTAC, is known as Operation Gemini.
The Australian War Memorial website sets out the following information about Operation Gemini:
“Strength: 1279 ADF personnel - 65 Personnel of the UNAMIC Contingent, mainly consisting of the 2nd Signal Regiment on 12-month tour of duty, New Zealand communications staff (45 personnel on 6 month tours) collectively forming the Force Communications Unit (FCU UNTAC comprised 545 personnel from 1992-1993). Movement Control Group of 30 ADF Personnel. One Blackhawk Helicopter Squadron accompanied by an Infantry Protection Platoon (2/4 RAR).
Area of Operations: Cambodia, Thailand, Laos and Vietnam.
In October 1991, prior to UNTAC being formally established, Australia contributed a 65-strong communications unit to its precursor, the UN Advance Mission in Cambodia (UNAMIC). On UNTAC's establishment, the ADF Contingent increased to 502 personnel, comprising 488 Force Communications Unit (FCU) and 14 staff on HQ UNTAC. The FCU was originally based on the 2nd Signal Regiment but reinforced from many other units, including 20 personnel each from the RAN and the RAAF. 45 New Zealand personnel also bolstered the FCU. The FCU was spread across 56 locations throughout Cambodia and saw more action than any other UN unit.
UNTAC was established under the 1991 Paris Agreements to supervise a ceasefire and a general election in Cambodia. UNTAC's Military component consisted of 16,000 personnel from 32 countries. The Force Commander of this highly demanding and complex operation was Lieutenant General J.M. Sanderson AC.”
It is not contested that Operation Gemini is not listed as an operation in the Veterans’ Entitlements (Warlike Service) Determination 2019 (Cth), nor is Cambodia listed as an area of operation in that Determination. Prima facie, then, the Veteran’s service in Cambodia was not warlike service for the purposes of s 5C and, consequently, the Veteran did not render qualifying service under s 7A(1)(a)(iv).
Again, Mr Dube submitted that there is no discretion vested in the Tribunal to go behind the Determination, and that the Tribunal is bound by the matters contained in the Determination to ascertain if a person has rendered warlike service – Tr. 12.9.2022 p. 10. The Tribunal agrees with this submission of Mr Dube.
However, the Veteran drew three matters to the attention of the Tribunal.
First, the Veteran points out that both he and Air Vice Marshal Evans (Retired) have been awarded the Australian Active Service Medal with Clasp “CAMBODIA”, pursuant to the Australian Active Service Medal Regulations (Cth) (the AASM Regulations), for rendering a service in a “warlike operation”.
Regulation 3 of the AASM Regulations provides as follows:
“3. The Governor-General, on the recommendation of the Minister, may declare a warlike operation in which members of the Defence Force are, or have been on or after 14 February 1975, engaged, to be a prescribed operation for the purposes of these Regulations.”
His Excellency, the then Governor-General, on 6 March 1999, made a Determination under the AASM Regulations declaring Australian Defence Force activity in Cambodia in the relevant period to be a prescribed operation. In short, the Governor-General recognised that service in Cambodia in the relevant period constituted participation in a warlike operation for which a particular medal was awarded. The Veteran submitted that this Declaration was subsequently updated and replaced by a new instrument in 2001. The 2001 instrument is broader and includes the Veteran’s service – Exhibit 1 T16 pp. 97 – 99.
The Veteran also draws attention to the Warlike Service – Cambodia and Somalia Declaration 2008 (Cth) made pursuant to the Defence Force (Home Loans Assistance) Act 1990 (Cth) – Exhibit 1 T16 p. 100. The Veteran points out that this Declaration specifically recognises service in Cambodia as constituting warlike service for the purposes of defence force home loans.
Finally, the Veteran also referred to the Australian Defence Force Pay and Conditions Manual (PACMAN). The Veteran submits that Item 3b in the Table at Annexure 17.1A lists Operation Gemini as having the status of “warlike” – Exhibit 2 p. 2.
The Veteran made the following submission – Exhibit 2 p. 3:
“5. The definition of warlike service at s5C (1) of the VEA is quite broad in that it does not specifically state in what format the Defence Minister must put their determination, other than that it must be in writing. Contrast the VEA definition of warlike service in comparison to other legislation that administers veterans’ benefits – Such as s 6(1)(a) of the Military Rehabilitation and Compensation Act 2004 (MRCA) which has similar wording to s5C(1) of the VEA, but adds … for the purposes of this Act (meaning the MRCA). Or even the definition of warlike service at s3C of the Defence Force (Home Loans Assistance) Act 1990 which leaves any student of law in no doubt as to what format the Minister must make their determination.”
[bold in original]
As previously noted, “warlike service” is defined by s 5C(1) to mean “service in the Defence Force of a kind determined in writing by the Defence Minister to be warlike service”. In short, there has to be a specific Determination made under the Act. The fact that determinations have been made under other statutes or Regulations concerning warlike service is not determinative for the purposes of the Act. Further provisions in PACMAN do not constitute a Determination for the purposes of the Act.
The Tribunal has only been presented with one Determination made under the Act by the Defence Minister for the purposes of determining warlike service. It is that Determination, and that Determination alone, which, at this time, is determinative of the issue of what constitutes warlike service.
The same conclusion was reached by the Tribunal in Park and Repatriation Commission [2011] AATA 31, and Senior Member Isenberg made the following observations:
“[24] As I indicated at the hearing, whether or not Mr Park’s service in the RAN meets the definition of ‘warlike service’ in the Act depends entirely upon whether the service has been determined in writing by the Minister for Defence to be warlike, irrespective of whether the personnel themselves may have considered the service to be ‘warlike’. In this I have no discretion.
[25] Many determinations in writing have been made that particular service is ‘warlike’. For example, service in Vietnam (Southern Zone) from 12 January 1973 to 29 April 1975 has been determined by instrument to be ‘warlike’ for the purposes of the Act. More recently, I was informed by the Respondent’s representative, service in East Timor at the time of its first elections had been determined to be ‘warlike’. No such determination exists in relation to the Malayan Emergency, or in relation to any of the service rendered by Mr Park.
[26] In the absence of such a determination, Mr Park cannot be said to have rendered warlike service which meets the definition of ‘qualifying service’. He is unable to rely upon subs 7A(1)(a)(iv) in support of his claim for a Gold Card.
…
[27] Mr Park observed that his colleague had been unaware for 50 years that he had rendered qualifying service, and observed the irony that his colleague had, in any event, spent his entire qualifying service in the ship’s sick berth.
[28] The Respondent’s representative advised that it was only in the last 10 years or so that the service aboard HMAS Sydney during two voyages in September and October 1956 had been recognised as qualifying service. He agreed that changes to the definition of qualifying service occur with some regularity. This particularly occurs with ships’ voyages. These changes, as with many changes to entitlement under the VEA, predominately occur as a result of lobbying by Ex-Service Organisations.
[29] As I have said, I am bound by the legislation as it stands. It is not for me to comment if, applying some dictionary or commonsense meaning to the expression, Mr Park’s service aboard HMAS Sydney might amount to ‘warlike service’. Armed with more detail about HMAS Sydney’s role during that time, Mr Park, or others similarly interested or affected, may consider an approach to the appropriate Minister to be helpful.”
The Tribunal understands the Veteran’s predicament, insofar as there are a confusing and seemingly inconsistent series of policy determinations under various enactments about whether the service rendered by the Veteran and those serving with him in Cambodia constitute warlike service. For some purposes, the Executive Government has recognised that service constitutes warlike service, but for entitlements under the Act, there has been a policy determination not to recognise it is warlike service.
The Tribunal concludes by making two observations.
First, the only Determination which is of relevance in determining warlike service for the purposes of the Act is the Veterans’ Entitlements (Warlike Service) Determination 2019 (Cth). A decision-maker is bound by the provisions contained in Schedule 1 of that Determination in assessing whether a person has rendered warlike service. Any other determination made under another enactment is not relevant when making a determination whether s 7A(1)(a)(iv) has been satisfied.
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.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.....................[SGD]...............................
Associate
Dated: 30/09/2022

Dates of Hearing:

12 September 2022

Applicant:

In-person

Representative for the Respondent:

Mr Ben Dube
Sparke Helmore Lawyers

Dates of Hearing:	12 September 2022
Applicant:	In-person
Representative for the Respondent:	Mr Ben Dube Sparke Helmore Lawyers