Pesch and Repatriation Commission (Veterans' entitlements)

This case concerned an appeal by Mr Pesch against a decision of the Repatriation Commission, which had refused his claims for disability pensions for generalised anxiety disorder and alcohol use disorder. Mr Pesch contended that these conditions were related to his operational service in Vietnam in May or June 1970, during which he served aboard HMAS Derwent. The Repatriation Commission denied that HMAS Derwent entered Vung Tau harbour in Vietnam during that period, but argued that this factual dispute was irrelevant to the outcome. The matter came before Deputy President Britten-Jones of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Pesch qualified as a "veteran" for the purposes of the *Veterans' Entitlements Act 1986* (the Act) in relation to his alleged service in Vietnam. This required determining whether he had rendered "operational service" as defined by the Act, which in turn depended on whether he was "taken to have been allotted for duty" in an operational area of Vietnam. The Tribunal also considered whether the conditions claimed by Mr Pesch could be linked to his service, should he be found to have rendered operational service.

The Tribunal's reasoning focused on the definition of operational service under section 6C of the Act, which requires a member of the Defence Force to have rendered continuous full-time service in an operational area as a member allotted for duty in that area. Section 5B(2)(c) clarifies that being "allotted for duty" requires a written instrument. In this case, the relevant written instrument was a Ministerial Determination dated 23 December 1997, which specified the periods during which personnel on HMAS Derwent were taken to have been allotted for duty in the operational area of Vietnam. The Tribunal found that this determination listed three specific periods in 1966, 1969, and 1971, none of which included the 1970 voyage during which Mr Pesch claimed to have entered Vung Tau harbour. Consequently, the Tribunal concluded that the temporal requirement for being allotted for duty was not satisfied, meaning Mr Pesch had not rendered operational service and therefore was not a veteran entitled to claim a pension under section 14 of the Act.

The Tribunal affirmed the decision under review, finding that Mr Pesch did not have operational service in Vietnam in May or June 1970 and had not established the necessary preconditions for a reasonable hypothesis connecting his claimed conditions with his service.