McCoy and Repatriation Commission
[2004] AATA 904
•27 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 904
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2003/130
VETERANS’ APPEALS DIVISION ) Re JOHN VINCENT McCOY
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss Mary Imlach (Senior Member) Date27 August 2004
PlaceHobart
Decision The Tribunal sets aside the decision under review and in substitution therefor a decision that the applicant rendered qualifying service within the meaning of s7A(1)(a) of the VEA.
Miss Mary Imlach
Senior Member
CATCHWORDS
Veterans' Appeals - whether applicant rendered qualifying service.
Veterans’ Entitlements Act 1986 – ss5B(1), 7A(1).
Re Cunnington and Repatriation Commission (2003) AATA 355
ReChoo Ying Quo and Repatriation Commission (1992) 15 AAR 152
Starcevich v Repatriation Commission (1987-88) 76 ALR 449
Repatriation Commission v Hawkins (1993) 30 ALD 51
REASONS FOR DECISION
27 August 2004 Miss Mary Imlach (Senior Member) Introduction
1. This is an application by Mr John Vincent McCoy for review of a determination of a delegate of the respondent made on 28 January 2003 and affirmed by a senior delegate on 19 May 2003.
2. The decision of the delegate was that Mr McCoy does not have qualifying service pursuant to s7A(1) of the Veterans’ Entitlements Act 1986 (“the VEA”).
Material before the Tribunal
3. In conducting its review the Tribunal had before it documents (“the T documents”) lodged by the parties pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
Representation
4. Mr McCoy represented himself at the hearing and Mr Michael Castle, Advocacy Branch, Department of Veterans’ Affairs appeared for the respondent.
5. Mr McCoy was the only person to give evidence at the hearing.
Legislative Framework
6. The relevant legislative provisions are ss5C(1) and 7A(1)(a) of the VEA.
History
7. The applicant applied to the Department of Veterans’ Affairs (DVA) on 24 June 2002 for recognition of qualifying service for the purposes of the VEA. The application related to service with the RAN Detachment as an officer of the MV Jeparit on voyages to Vietnam from 18 December 1967 to 28 July 1968.
8. A delegate of the Repatriation Commission determined on 28 January 2003 that the applicant did not render qualifying service pursuant to s7A of the VEA. The basis of the decision of the delegate was that the applicant was not a member of the defence force in terms of s5C(1) of the VEA.
9. A senior delegate of the Repatriation Commission affirmed the delegate’s determination and communicated his decision to the applicant on 19 May 2003.
10. The applicant then applied to the Administrative Appeals Tribunal on 1 August 2003 for a review of the decision of the senior delegate.
Issue
11. It has been agreed by the applicant and the respondent that there is no issue of fact to be decided by the Tribunal, and that the sole issue to be decided is one of statutory interpretation applying agreed facts to the relevant provisions of the VEA.
Contentions of the Applicant
12. The applicant noted that a member of the defence force as defined in the VEA includes a person appointed for continuous full-time service with a unit of the defence force and contended that his service aboard MV Jeparit between 18 December 1967 to 28 July 1968 was as a member of the defence force according to that definition.
13. The applicant produced in evidence an extract from AGPS Publication by Dennis Fairfax, entitled Royal Australian Navy in Vietnam, (1980) written for the Department of Defence in which it was stated the Government, its agencies and the Army:
“Considered that sea transport duties in a war zone should not be carried out by civilians and arrangements were made with the Department of the Navy for sea transport officers to be commissioned in the Royal Australian Naval Volunteer Reserve (RANVR) for service in South Vietnam.”
14. The applicant contended that the facts contained in the previous paragraph 13 are important in construing the relevant provisions of the VEA with respect to the relationship of the applicant with the Naval Detachment of Jeparit¸ which Detachment came aboard the Jeparit on 9 March 1967 in replacement of half the crew. That is to say, Jeparit was a Government owned ship, chartered by one government department on behalf of another, operated for defence purposes carrying defence cargoes and operating on voyages to South Vietnam according to the instructions of the sea transport officers who were themselves officers of the RAN.
15. The applicant was commissioned as a Sub-Lieutenant into the RANR(S) on 5 December 12967 and was appointed as 2nd Officer of Jeparit on 12 December 1967 for the 11th voyage to South Vietnam.
16. Voyages undertaken by Jeparit were entirely of a military nature with voyage instructions being received from sea transport officers (who had been commissioned into the RANVR. Most cargo was discharged at Vung Tau and consisted of army vehicles including armoured personnel carriers, tanks, ammunition, engine spares and canteen supplies.
17. The applicant was both watch-keeper and navigating officer aboard Jeparit. His duties included planning the voyage, navigation and watch-keeping, and direct supervision of the RAN sailors in the performance of their duties aboard ship. This included lookouts and helmsman of the navigational watches, keeping watches at anchor and in port and taking charge of the after mooring gang in mooring the vessel during berthing. In addition, the applicant took charge of RAN sailors during emergency drills and supervised any necessary training aboard the vessel.
18. The applicant contended that there was no demarcation between RAN personnel and merchant navy personnel aboard the vessel. He claimed that if such demarcation had existed the vessel would have been unworkable. He contended further that the merchant navy officers and RAN sailors were an integrated unit. The applicant provided orders and instructions as appropriate, and those orders and instructions were carried out by the sailors forming the RAN detachment. The applicant and the RAN detachment aboard Jeparit were as one.
19. Jeparit returned from her 15th voyage to South Vietnam on 28 July 1968 and the applicant signed off on 30 July 1968 having completed 15 voyages since re-appointment to the vessel in December 1967.
20. The applicant contended that as Jeparit received her sailing orders from sea transport officers who were subject to the command structure of RAN, all the crew of the Jeparit both navy and merchant navy were brought into the RAN command structure. RAN sailors and merchant navy officers thus were part of the same integrated unit i.e. the crew of the Jeparit. This unit reported to and was responsible to a central command structure through the Navy.
21. The applicant contended that a broad view of the issue should be taken as VEA is beneficial legislation. The definition of the phrase “member of the Defence Force” in s5C should be given a wide and beneficial interpretation. In support of his contention the applicant referred the Tribunal to its decisions in Cunnington and Repatriation Commission (2003) AATA 355 at paragraph 24 and Choo Ying Quo and Repatriation Commission (1992) 15 AAR 152 at paragraph 63.
Contention of the Respondent
22. The respondent contended that whilst the applicant held a commission in the Royal Australian Naval Reserve forces during the period 12 December 1967 to 30 July 1968 his service on board MV Jeparit was not as a member of the defence force and consequently it cannot be said that he rendered qualifying service within the meaning of paragraph 7A(1)(a) of the VEA.
Findings
23. The Tribunal accepts the applicant’s contention that VEA is remedial or beneficial legislation and that a liberal approach to the interpretation of this type of legislation is to be adopted. This approach is supported by the decision of the Tribunal in Cunnington’s case referred to by the applicant and to previous decisions by the Federal Court in Starcevich v Repatriation Commission (1987-88) 76 ALR 449; Repatriation Commission v Hawkins (1993) 30 ALD 51.
24. In the first case of Starcevich Fox J said at p454:
“It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation. It has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen.”
25. In Repatriation Commission v Hawkins (1993) 30 ALD 51 at p56 the Court stated:
“ If there is any doubt about this construction of s 6(5) — and we do not think there is — it should be resolved in favour of the respondent. This is beneficial legislation, and s 6(5) is plainly a provision intended to operate by way of extension of the benefits conferred by the Act”.
26. This approach was followed by the Tribunal in the case of Cunnington referred to by the applicant where it found that the definition of a member of the defence force was an “inclusive one and does not purport to define exhaustively the persons or classes of persons who may properly be regarded as members of the defence force for the purposes of VEA.”
27. A liberal interpretation of the legislation gives the Tribunal considerable flexibility and discretion to look at the other factors raised by the applicant which may bring him within the definition of a member of the defence force in s5C(1).
28. The Tribunal is satisfied that the Naval Detachment aboard the Jeparit was a unit of the defence force in the terms established by the applicant. The crew of the Jeparit including RAN personnel and merchant navy personnel were an integrated unit subject to the command structure of the RAN.
29. The Tribunal accepts the applicant’s argument that his service on the Jeparit was “with” the naval detachment and that the word “with” should be given the meaning according to the Macquarie Dictionary “in the company of”.
30. Similarly the word “appointed” should be given the meaning shown in the Macquarie Dictionary – “to choose and put into a position”, therefore by the ordinary English meaning the applicant was appointed to the Jeparit.
31. For the above reasons the Tribunal sets aside the decision under review and in substitution therefor a decision that the applicant rendered qualifying service within the meaning of s7A(1)(a) of the VEA.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 25 May 2004
Date of Decision 27 August 2004
Counsel for the Applicant Applicant appeared on his own behalf
Counsel for the Respondent Mr Michael Castle
Solicitor for the Respondent Department of Veterans' Affairs
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