Re Graham (No2) and Repatriation Commission
[2000] AATA 337
•1 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 337
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/381
VETERANS' APPEALS DIVISION )
Re Ernest William GRAHAM
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Date1 May 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
_______________________
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – service pension - whether applicant rendered qualifying service - whether applicant was allotted for duty in an operational area – application of transitional provisions – definition of "allotted for duty" - whether applicant's loan under Defence Service Homes Act was granted on basis that he was allotted for duty in an operational area - whether written instrument issued pursuant to s6D Veterans' Entitlements Act 1986 for determining eligibility satisfies definition of "allotted for duty" in s5B.
Veterans' Entitlements Act 1986 (Cth) – ss 5B(2), 7A(1)(a)(iii), 36(b), 6D
Veterans' Affairs Legislation Amendment Act 1990 (Cth)- s 93(1), Schedule 2
Veterans' Entitlements Amendment Act 1991 (Cth)- s3
Veterans' Entitlements (Rewrite) Transition Act 1991 (Cth)- s19, Schedule 4
Defence Service Homes Act 1918 (Cth)- s 4
Graham v Repatriation Commission [1999] FCA 66
Repatriation Commission v Doessel (1990) 95 ALR 704
Repatriation Commission v Davis (1990) 94 ALR 621
Repatriation Commission v Hawkins (1993) 45 FCR 205
Secretary, Department of Social Security v Clear (1991) 28 FCR 405
Re King and Repatriation Commission (1995) 39 ALD 156
Re Paterson and Repatriation Commission (1998) 54 ALD 75
Blair v Curran (1939) 62 CLR 464
REASONS FOR DECISION
1 May 2000 Mrs M T Lewis, Senior Member
This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 9 December 1996, which determined that Ernest William Graham ("the Applicant") had not rendered qualifying service as defined in s 7A(1) of the Veterans' Entitlements Act 1986 ("the VEA Act"). That decision affirmed an earlier decision of the Respondent dated 10 October 1996. The Applicant lodged an application for review by the Administrative Appeals Tribunal on 18 December 1996. The Tribunal decided on 2 July 1998 to affirm the decision under review.
The Applicant subsequently lodged an out of time appeal against that decision to the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). On 5 February 1999 His Honour Sackville J granted an extension of time and also considered the substantive issues: Graham v Repatriation Commission [1999] FCA 66. The decision of the Tribunal was set aside and remitted to the Tribunal to be heard and determined according to law, on the basis that the Tribunal had erred by failing to consider whether the Applicant was relieved from satisfying the restrictive definition of "allotted for duty" which was introduced by the Veterans' Affairs Legislation Amendment Act 1990 (Cth) (No 2 of 1991) ("the VALA Act"). His Honour accepted the Tribunal had not considered the applicability of s 93(1) of the VALA Act and considered there was material that might have led the Tribunal to make findings of fact relevant to the application of that section. Consequently, His Honour ordered the Tribunal should hear such further evidence presented by the parties as is relevant to the matter.
At the substantive hearing the Tribunal had before it documents provided by the Respondent pursuant to s 37 of the AAT Act in respect of the original application for review (N1996/1555) (T1) and in respect of an earlier related application for review (P1992/511) (T2). The Applicant did not seek to tender or call any further evidence beyond that which was before the Tribunal at the first hearing (exhibit A). However, the Tribunal's formal Direction dated 26 March 1999, together with a Statement of Facts and Contentions on behalf of the Applicant dated 7 April 1999 and on behalf of the Respondent dated 5 July 1999 were tendered on behalf of the Applicant (exhibit B). The Respondent tendered a letter from the Defence Personnel Executive dated 23 February 1998 with the Applicant's Record of Service Card as an addendum (exhibit 1), and the Instrument for determining eligibility under the Veterans' Entitlements Act 1986 dated 26 November 1997 (exhibit 2).
The Applicant served in the Royal Australian Navy from 8 January 1948 until 7 January 1960. On 20 September 1996 he lodged a claim for service pension (T1, T4). He noted in his claim that he served overseas in HMAS Tobruk in the "Malayan emergency" from 1 June 1955 to 3 July 1955. He also noted he had qualified as an "Australian Soldier" for benefits under the Repatriation Act 1920 and the War Service Homes Act 1918 ("the WSH Act") as it then was. He noted that he was granted a War Service Homes loan in 1963 on the basis that he had been "Allotted for Duty in an Operational Area namely Malayan waters with the Strategic Reserve" (T1, T3 and T2, p42).
legislative backgroundSection 36 of the VEA Act provides that a person is eligible for service pension if the person:
is a veteran; and
has rendered qualifying service; and
has reached pension age.
There is no dispute that the Applicant is a Veteran and that he has reached pension age.
The only issue before the Tribunal is whether he has rendered qualifying service. It is common ground this matter falls for consideration only in respect of s 7A(1)(a)(iii) of the VEA Act which makes provision for "qualifying service". The Tribunal notes the Applicant also served in HMAS Shoalhaven from 19 July 1948 to 30 September 1949, and arising from that service he was determined by the Respondent to have had operational service as defined in ss 5C(1) and 6A of the VEA Act. He also qualified for a further period of operational service in Korea in HMAS Tobruk from 2 to 8 July 1955 (exhibit R1 before the previous Tribunal and exhibit 2). It is agreed between the parties that this does not constitute qualifying service pursuant to subparagraph (iii) of s 7A(1)(a).
Section 7A(1)(a)(iii) of the VEA Act provides, insofar as is relevant –
(1)For the purposes of Part III, a person has rendered qualifying service:
If the person has, as a member of the Defence Force:
……..
……
subject to subsection (1A), 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 in that area;
………..
Subsection 7A(1A) provides that –
Service rendered in an area described in item 3 of Schedule 2 (in column 1) during the period specified in column 2 of that Schedule opposite to that description must be service in respect of which the person has been awarded, or has become eligible to be awarded, a British General Service Medal with the Malaya Clasp.
The term "allotted for duty" as it is used in s 7A(1)(a)(iii) is defined in s 5B(2)(a) of the VEA Act, viz –
(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 column1) – 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; or ….
A letter to the Applicant from Defence Service Homes dated 5 June 1992 (T2, p42) stated –
This letter is to confirm that Ernest William Graham is an eligible person under the Defence Service Homes Act (formerly the War Service Homes Act) and he received a War Service Homes loan in 1963 to purchase a home at Revesby.
Mr Graham served on the HMAS "Tobruk" from 23 September 1954 to 26 September 1955. During this period "Tobruk" served in Malayan waters which was an operational area in connection with the warlike operations in Malaya.
I enclose a copy of the information received from the Navy Office in 1959 regarding Mr Graham's service.
The Tribunal notes the enclosure to which reference was made (supra) (T2, p43) verifies the Applicant served in the Royal Australian Navy from 8 January 1948, and at that time (1959) he was still serving. It also noted that the Applicant served in the Strategic Reserve from 1 June 1955 to 3 July 1955 on HMAS Tobruk. No specific reference was made to the Applicant having been "allotted for service".
The VALA Act provided amendments to the VEA Act and the Defence Service Homes Act 1918 ("the DSH Act", formerly known as the WSH Act). The Transitional provisions are contained in s 93 of the VALA Act, viz. –
93. (1) If:
a person has made a claim under the Veterans' Entitlements Act 1986 or an application under the Defence Service Homes Act 1918; and
the claim or application was granted on or before 8 November 1990 on the basis that the person was allotted for duty in an operational area or was a member of a unit of the Defence Force that was allotted for duty in an operational area;
subsection 5(12) of the Veterans' Entitlements Act 1986 continues to apply in relation to the person as if the amendments made by paragraphs 37(b) and (c) of this Act had not been made.
(2)If: …….
Section 5(12) of the VEA Act prior to the VALA Act provided –
In this Act, a reference to a person, or a unit of the Defence Force, that was allotted for duty in an operational area shall be read as a reference to a person, or unit of the Defence Force –
a) that was so allotted for duty in accordance with administrative arrangements applicable in the part of the Defence force in which the person was serving, or of which that unit formed a part, as the case may be; or
b) that is, by an instrument in writing signed by the Minister for Defence, deemed to have been allotted for duty in an area described in item 4 or 8 in Schedule 2, during the period specified in that item.
In its current form, s93 of the VALA Act, applying the amendment to s5B(2) as provided in Schedule 4 of the Veterans' Entitlements (Rewrite) Transition Act 1991 ("the Rewrite Act"), states as follows -
93 (1) If:
a) a person has made a claim………..under the Defence Service Homes Act 1918; and
b) the….claim or application was granted on or before 8 November 1990 on the basis that the person was allotted for duty in an operational area or was a member of a unit of the Defence Force that was allotted for duty in an operational area;
subsection 5B(2) of the Veterans Entitlements Act 1986 applies in relation to the person as if the amendments made by s 19 of the Veterans' Entitlements (Rewrite) Act 1991 (as it relates to subsection 5B(2)) had not been made.
issues to be determined
The primary question for the Tribunal to consider is whether the Applicant is relieved from satisfying the restrictive definition of "allotted for duty" in s 5B(2) of the VEA Act. The Tribunal must first consider the application of s 93(1) and in doing so, the Tribunal's task is to determine whether the Applicant's application for a loan under the DSH Act was granted before 8 November 1990 on the basis that the Applicant was allotted for duty in an operational area, for the purposes of s 93(1)(b) of the VALA Act.It does not appear to be in contention that an application was made and loan was granted under the DSH Act before 8 November 1990. If the section is applicable, the Tribunal must then examine the scope of protection afforded by s93(1) as a matter of statutory construction.
The Applicant's case is that he is exempt from satisfying the requirements in s 5B(2) of the VEA Act by reason of the transitional provisions provided in s 93(1) of the VALA Act. As an issue of statutory construction, the phrase "allotted for duty" in s 93(1)(b) of the VALA Act is to be construed in accordance with the ordinary meaning associated with those words as opposed to any technical meaning as denoted by the Respondent. Following from that then, by virtue of those transitional provisions, the Applicant's case is that he has proved "qualifying service" because he already has a DSH loan that was granted on the basis he was allotted for duty in an operational area.
The Respondent 's primary argument is that the Applicant has never rendered qualifying service; at no time has he been eligible for the service pension that he is currently seeking.
With respect to s 93(1)(b) of the VALA Act, it is the Respondent's argument that there is no conceivable basis upon which the Applicant can satisfy the requirements posed in that provision. That section is only concerned to preserve the Applicant's entitlement under the DSH Act, which is the loan. Essentially, benefits gained under the DSH Act do not translate automatically into benefits for the Applicant under the VEA Act. Further, the fact that it was determined previously that the Applicant was entitled to a war service loan, on its own, does not necessarily indicate an application was granted on the basis he was allotted for duty in an operational area. The meaning to be given to the phrase "allotted for duty" in s 93(1)(b) is, whether in truth he was allotted for duty in an operational area, and so if the loan previously granted was made in error or based upon a false premise, then the Applicant would not satisfy s 93 (1)(b) of the VALA Act.
These respective arguments were explicated in detail by way of submissions made on behalf of both the Applicant and the Respondent.
submissionsIt was the Applicant's case he met the requirements for qualifying service in s 7A(1)(a)(iii) of the VEA Act, namely that he was allotted for duty in an operational area while on service on HMAS Tobruk in Malayan waters in 1955 since that fact had already been recognised by his entitlement under the WSH Act for a home loan that was granted in 1963.
The Applicant relied on a letter from Defence Service Homes dated 19 September 1997 (exhibit A) which states inter alia:
…. In 1959, the definition of an "Australian Soldier" for eligibility purposes in the (then) War Service Homes Act included persons allotted for duty in operational areas of Korea and Malaya. It is believed that the Department of Defence would have supplied the definitions for Operational Areas used in the various Acts, and which are defined geographically, together with the period during which allotment for duty must have occurred also being specified.
Whether a member of the Defence Forces was individually, or as a member of a unit, allotted for duty in an Operational Area was a decision made solely by the Department of Defence. Defence Service Homes would generally rely on the information provided by the Service Records Office confirming the details of a particular member's service so that a determination concerning eligibility could be made.
Peacekeeping Forces have generally not been eligible for the Defence Service Homes Scheme, usually on the basis that the level of risk associated with that duty was not appreciably above that of normal peacetime conditions of the time, and there was therefore no reason to regard the duty as comparable to operational service.Section 4 of the WSH Act as it was in 1963 when the Applicant's war service home loan was granted, provided that an Australian Soldier was an "eligible person". An "Australian Soldier" was defined as –
The definition of 'Australian Soldier' in the last preceding sub-section applies as if –
the warlike operations in or in connexion with Korea after the twenty-sixth day of June, One thousand nine hundred and fifty, and the warlike operations in or in connexion with Malaya after the twenty-eighth day of June, One thousand nine hundred and fifty, were wars in which His Majesty became engaged after the third day of September, One thousand nine hundred and thirty-nine, and in which His Majesty continues, during the continuance of those operations, to be engaged; and
the forces opposing members of His Majesty's forces in those operations were the forces of enemies of His Majesty,
but that definition does not apply to a person by virtue of this sub-section unless –
that person was allotted for duty in an operational area in connexion with those operations before the date of commencement of the Repatriation (Far East Strategic Reserve) Act 1956 and, if he was so allotted while in Australia, or in the part of the Queen's dominions other than the Commonwealth, as the case may be, he left the last port of call in Australia or in that other part of the Queen's dominions before that date for the purpose of serving in connexion with those operations; or
that person, not being a person to whom the last preceding paragraph applies, served, after the commencement of the Repatriation (Far East Strategic Reserve) Act 1956, in an area prescribed to be, or to have been, an operational area for the purposes of this paragraph.
By way of written submissions the Respondent provided the following legislative history to the Tribunal, which appears to underpin the Respondent's interpretation of the issues -
In 1950, the Repatriation Act1920 was amended to provide for disability and service pension for members of the Forces allotted for duty in Korea after 26 June 1950 and in Malaya after 28 June 1950 [s.48 of the Australian Soldiers' Repatriation Act 1950, No 34 of 1950, which inserted Divisions 8 and 9, (ie. Ss.107A-107D and 107E-107G) into Part III of the Australian Soldiers' Repatriation Act 1920).
Regulation 199 of the Repatriation Regulations defined the operational areas in relation to Korea and Malaya for the purposes of the Repatriation Act 1920. In respect of Malaya, the regulation provided that the operational area was to apply in relation to the Military and Air Forces of the Commonwealth, while in respect of Korea, it was stated to apply to the Naval Forces, Air Forces and Military Forces of the Commonwealth. Thus members of the Naval Forces did not have eligibility under the Repatriation Act in respect of service in Malaya after 28 June 1950.
In respect of Korea, naval units were "allotted for duty" for the purposes of the Act by means of Commonwealth Navy Orders. As reg. 199 did not provide eligibility in respect of naval service in Malaya, no Commonwealth Navy Orders were able to be issued for the purposes of the Act to allot vessels for duty in Malaya despite the fact that there were Australian naval vessels on the Far East station operating in the operational area.
In 1956, the Government recognised the changing nature of service in Malaya following upon the establishment of the Far East Strategic Reserve (FESR). The Repatriation (Far East Strategic Reserve) Act 1956, No.91 of 1956, (the R(FESR) Act) was enacted to provide disability pensions and other benefits for certain members of the Forces serving with the FESR. But unlike the Repatriation Act 1920, there was no eligibility for service pension for Malayan service under the R(FESR) Act. Section 5 of the R(FESR) Act excluded the operation of Divisions 8 and 9 of Part III of the Repatriation Act 1920 from any service covered by the R(FESR) Act.
Hence, the Repatriation Act 1920 coverage for disability and service pensions in respect of service in Malaya was ended for that service after 31 August 1957. Disability pension coverage for Malayan service after that date now came under the R(FESR) Act and no service pension coverage was provided. Moreover, the disability pension coverage was expressly excluded for "a member of the Naval Forces in the complement of a sea-going vessel": see definition of "Malayan service" in ss3(1) of the R(FESR) Act. Thus the exclusion of Naval personnel under the Repatriation Act was continued under the R(FESR) Act. In response to a question from a Government member as to why Naval personnel were excluded by the legislation, the Minister said:They are not regarded as being subjected to additional operational risks. They are subjected to the risks of the service for which they engage, and therefore their conditions are in accordance with the terms of their enlistment. The honourable member said that there might be a reply from air, shore batteries or sea, to their bombardment. That will not happen because the Malayan terrorists do not possess the resources to retaliate in that way.
Before the enactment of the Veterans' Entitlements Act 1986, a further piece of legislation – the Repatriation (Special Overseas Service) Act 1962 (R(SOS) Act) – was enacted but it has no relevance to these proceedings because it deals with particular areas for particular time periods different from those under consideration in this matter. However, it is for note that the Second Reading Speech of the Minister specifically refers to the exclusion of service pension:
The application of Division 5 of Part III of the Repatriation Act is not being extended for the same reasons as it was not extended to the strategic reserve in 1956, and accordingly service pensions will not be payable. This is because the nature of the service is generally not the same as war service in the two World Wars and because members of the permanent forces now have available to them the benefits of the Defence Forces Retirement Benefits Act….
For the periods and locations covered by the R(SOS) Act, however, a service pension extension was granted in 1968 by the Repatriation (Special Overseas Service) Act 1968, but there was no extension for service under the R(FESR) Act, nor under the Repatriation Act1920.
The Veterans' Entitlements Act1986 (the VEA) was enacted to rationalise and simplify this situation [ie. The several "but separate pieces of Repatriation legislation" covering various conflicts] "by replacing the burgeoning body of Repatriation legislation with a single consistent document". See the Explanatory Memorandum to the VEA at pp 1-2. With some exceptions not here relevant, the VEA was intended to retain, not expand, the eligibility for pensions and other benefits as provided for by the Repatriation Act, the R(FESR) Act and the R(SOS) Act, these Acts being repealed by the VEA.
Under the VEA, eligibility for service pension was granted, "subject to this Act", to veterans who had rendered "qualifying service" and who had reached age 60 (for males) – ss38(1) [now s.36(1)]. As here relevant, the term "veteran" was defined by s.5 [now at s.5C] to mean a person who, by virtue of s.7 was taken to have rendered eligible war service. Paragraph 7(1)(a) indicates that "a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service". At paragraph 6(1)(e) [now s.6C] operational service is relevantly stated to require continuous full-time service outside Australia in an operational area while allotted for duty. The "allotted for duty" requirement was as here relevant, stated to be a reference to a person "… so allotted for duty in accordance with administrative arrangements applicable in the part of the Defence Force in which the person was serving … " – ss.5(12) [now replaced by ss.5B].
When the VEA was enacted in 1986, it did not expressly make the same exclusion of members of the complement of sea-going vessels in Malayan waters that existed in the former legislation. On the Repatriation Commission's view, at that time, of the meaning of "allotted for duty", express exclusion was not strictly necessary because none of those persons or their ships had been "allotted for duty" by Commonwealth Naval Orders. Nevertheless, in order to have the legislation reflect the fact that it was intended to continue the express exclusion contained in the repealed R(FESR) Act, the VEA was amended so that, at all relevant times under the R(FESR) Act, it expressly excluded eligibility for Repatriation benefits for members of the Naval Forces in the complement of a sea-going vessel in Malayan waters – see s.5 of the Veterans' Affairs Legislation Amendment Act 1987 (Act No. 78 of 1987).
Act No. 78 of 1987 expressed this exclusion by reference to that item of schedule 2 to the VEA that was relevant to the R(FESR) Act i.e. Item 3. Earlier service in Malayan waters ie. Service covered by Item 2 of Schedule 2 was not specifically mentioned. In the Davis case, Mr Davis succeeded with the argument that "allotted for duty" did not have a special meaning and that posting to the operational area was sufficient to be "allotted" for the purposes of the VEA. This argument could not have succeeded under the Repatriation Act 1920 (and other pre-VEA legislation did not here apply) since reg. 199 precluded eligibility for disability pension under that Act for Naval service in Malaya. In any case, the eligibility of those who did have it (ie. Members of the Military and Air Forces) did not extend to service pension. A gap, similar to that which arose in Davis, also arose in the Doessel case, where Item 7 to schedule 2 was in issue, and the Court similarly found there to be no technical meaning to the words "allotted for duty".
The effect of the Davis and Doessel cases was to render nugatory the administrative arrangements that the Repatriation Commission and the Defence Force had been using since the early 1950s for determining eligibility. In order to restore the original intention of the legislation, Parliament amended the VEA to ensure that the Commonwealth Naval Orders would be definitive in relation to who was and who was not "allotted for duty" for the purposes of the VEA. However, to ensure that persons who had claims in the pipeline which, but for the amending legislation, would have succeeded on a Davis/Doessel approach to "allotted for duty", and to "save" those already granted under that approach, a "savings" provision was enacted: - s.93 of the Veterans' Affairs Legislation Amendment Act 1990. (Respondent's emphasis)
It was submitted for the Applicant that the Respondent has admitted the Applicant was allotted for duty in fact and therefore satisfied the definition of "allotted for duty" in s 5B(2) of the VEA Act as it stood immediately prior to the commencement of the amendments made by s 19 and Schedule 2 of the Veterans' Entitlements (Rewrite) Transition Act 1991 (Cth) (No. 73 of 1991) ("the Rewrite Act"), and s3 of the Veterans' Entitlements Amendment Act 1991 (No. 72 of 1991) ("the VE Amendment Act"). That definition had the same effect as the provision in s 5(12) of the VEA Act previously considered by the Federal Court in Repatriation Commission v Doessel (1990) 95 ALR 704, Repatriation Commission v Davis (1990) 94 ALR 621, and Repatriation Commission v Hawkins (1993) 45 FCR 205.
It was submitted for the Applicant that he qualifies for pension as "a person" to whom the old definition "continues to apply" if he comes within the qualifying words of s 93(1) of the VALA Act as amended by Schedule 4 to the Rewrite Act.
The Tribunal's attention was drawn by Counsel for the Applicant to paragraph 5 of the Federal Court decision of Sackville J in Graham (supra), viz. –
The definition of "allotted for duty" has been amended by Schedule 2 of the Veterans' Affairs Legislation Amendment Act 1990 (Cth) ("VALA Act"), subsequent to the decisions of this Court in Repatriation Commission v Doessel (1990) 95 ALR 704 (FC) and Repatriation Commission v Davis (1990) 94 ALR 621 (French J). These decisions held that the phrase "allotted for duty" (then contained in s 5(12) of the VE Act) was to be determined by reference to the "ordinary meaning" of the words, so that any person who was posted for service in an operational area could be regarded as "allotted for duty" in that area. The amendments introduced by the VALA Act restricted the definition of "allotted for duty" to veterans who could produce a written instrument, issued by the Defence Force, stating that they, or their unit, had been allotted for duty in an operational area.
It was submitted for the Applicant that, relying on this paragraph, the term "allotted for duty" has become a term of art by reason of the definition in s 5B(2) of the VEA Act that would require the production of a written instrument.
It was submitted on behalf of the Applicant that the statutory construction of s 93(1) of the VALA Act is achieved principally by reference to the words of the provision construed in context and in the light of its objectives. If the words used have a clear meaning whose general effect is consistent with their apparent objective, there can be no warrant for implying limiting words so as to achieve conformity to the Respondent's perception of an appropriate outcome in the present case: Secretary, Department of Social Security v Clear (1991) 28 FCR 405.
It was further submitted that legislative history may assist the process of construction, but only where it is relevant to the context in which s 93(1) operates. The immediate context is the substitution of an artificial definition of "allotted for duty in an operational area" for a definition that permitted recognition of the true facts. The relevant context therefore is the statutory provisions in which the old and new definitions of "allotted for duty" had operated in the past and were anticipated to operate in the future. In particular, s 93(1) controlled the choice of a definitional provision which, when used in diverse eligibility criteria, may control access to a variety of veterans' entitlements including those under the VEA Act and the DSH Act. Moreover, the definition affected, and s 93 was intended to benefit, the determination of claims of all groups of servicemen to this variety of benefits. It was not just concerned with the "allotment" of naval servicemen, nor just a group of them who served in Malaya during part of the Malayan emergency, nor just with service pension qualification.
It was submitted for the Applicant that where the Respondent is arguing a restrictive construction which would apply to all the "persons" referred to in the provision who are intended to benefit by continued access to the non-artificial definition, it is erroneous to confine that construction by focusing upon the situation of the Applicant and his claim in relation to one type of benefit. It was submitted that the centrally relevant legislative history is sufficiently and authoritatively found in the Federal Court discussion in Davis, Doessel and Hawkins (supra). In effect, the words "allotted for duty" appeared in Repatriation legislation long before being inserted into the VEA Act. It was submitted that although in the late 1980's there was a mythology held by the Respondent that the words "allotted for duty" carried a special technical meaning involving a special type of instrument, such a belief was unsupported by evidence and was not Parliament's intended meaning. The words always meant no more than their ordinary meaning. In view of the Federal Court's examination of legislative history in Davis, Doessel and Hawkins (supra), it was submitted the Tribunal should give no credence to the Respondent's assertion that there existed a special "Repatriation" meaning for "allotted for duty" prior to the 1991 amendments.
It was submitted for the Applicant that the amended definition of "allotted for duty" and the introduction of s 93 of the VALA Act were both overt responses to the Federal Court decisions of Davis, Doessel and Hawkins (supra). Part 6 of the VALA Act, which commenced on 8 January 1991, replaced s 5(12) and introduced the artificial definition that one cannot be held to have been allotted for duty unless one was deemed to have been so allotted either retrospectively or at the time by an instrument. The Respondent maintains its assertion that the phrase "allotted for duty" in Repatriation legislation requires a special instrument.
It was further submitted by the Applicant that the enactment of s 93(1) acknowledged there were at least some veterans in the past who had been recognised to have been allotted in the absence of such an instrument, and it would be unfair if any such veteran was required in the future to establish a more difficult basis for eligibility. Section 93(1) would have been unnecessary if, in fact, no benefits had ever been given on the basis of "factual" allotment. It would be an impermissible construction of the section to deny this. Furthermore, the generality of the terms of s 93 indicate that eligibility based on "factual" allotment may have been recognised in relation to all groups of veterans and all types of benefits. The absence of any temporal limitation indicates acceptance that such eligibility could have occurred at any time in the past, including throughout the operation of the DSH Act and the Repatriation legislation which was replaced by the VEA Act. It was submitted that the references in s 93(1) to a claim made and granted under the VEA Act must be read as encompassing claims made and granted under the repealed legislation: see ss 4, 8, 13, 14, 15 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (Cth).
It was submitted for the Applicant that, in the language of the Second Reading speech, s 93(1) was described as a "savings provision", "… included in the Bill so as not to disadvantage anyone in respect of whom a determination to grant eligibility has already been made". This indicates it was more than a provision preserving particular pensions or benefits given in the past. The intention was to preserve a person's "eligibility" in general, so that for all times into the future and for all future determinations on entitlements, the question of "allotted for duty" was not to be revisited adversely. The "advantage" preserved was continuing access to the more beneficial definition, whenever a question of its application might arise in relation to a "person". Therefore, it was submitted, the Respondent's focus on the service pension entitlement of Malayan Emergency naval servicemen is irrelevant and distracting. It amounts to an invitation to the Tribunal to conclude that the Applicant is undeserving of the benefit of s 93(1) and therefore requires the Tribunal to give the provision a restrictive effect which its language, general context and intent do not allow.
In any case, it was submitted for the Applicant that his Repatriation history and that of his colleagues would support giving full effect to the language of s 93(1). From an analysis of the history of the legislation, the following supportive arguments were put on behalf of the Applicant -
(a)When Parliament inserted Division 8 into the Repatriation Act in 1950 to cover service in Korea and Malaya it made no exclusion of naval service but referred to members of the "Naval Forces" in the s.107B definition of "member of the Forces". It was submitted that it was mean spirited and possibly invalid to discriminate against Naval servicemen when defining "operational area" in Reg. 199. No such exclusion was introduced into the contemporaneous legislation conferring war service homes entitlements.
(b)By the time the VEA Act was enacted it was recognised that –
· The legislation relating to the definition of wars and conflicts was extremely confusing. There was a need to express the definitions and areas more simply with straightforward statements. It should be possible for the legislation to be drafted to have a uniform eligibility for Repatriation benefits to cover those who served at any time in any war or in any conflict (paragraph 3.5 of 1983 Report of the Advisory Committee on Repatriation Legislation Review – the "Keys Committee").
· Outmoded and inconsistent language and concepts were contained in the statutes; eligibility provisions varied between the wars and conflicts; entitlements for medical treatment, ancillary allowances and benefits were scattered haphazardly through the various Repatriation Acts and associated Regulations. As well, some well-established services operated without a clear legislative basis. The Veterans Entitlements Bill 1985 tackled these problems in a comprehensive and coherent way: Second Reading speech, Senate, 13 November 1985, p.2105.
· The Second Reading speech, at p.2107, expressly recognised that the Act would produce "an extension of existing service pension eligibility" for "some veterans who served in Malaya after 1957".
(c)It was consistent with these objectives that discrimination against Malayan naval servicemen be omitted in the framing of "operational service" and "qualifying service" in s 6(1)(e), s 36(a)(iii) and item 2 of Sch 2 of the VEA Act as originally enacted. No exclusion of naval service in relation to item 2 service was made until the 1991 amendments. At the same time as the VEA Act was enacted, the DSH Act was amended to incorporate reference to the definition in s 5(12) of the VEA Act. These naval servicemen, therefore, had full access to all veterans' entitlements between 1985 and 1991, and this was upheld in the decisions of the Tribunal and the Federal Court.
(d)It seemed from the extract from the 1990 Senate Committee Report on which the Respondent relied, that the Committee had concerns about the retrospective insertion of the exclusion of item 2 naval service from s 6(1)(e) of the VEA Act, and was reassured by reference to s 93. As the Tribunal's decision Re King and Repatriation Commission (1995) 39 ALD 156 illustrates, this was misleading as s 93 preserved only the old definition of "allotted for duty".
(e)It was submitted the 1997 recasting of the s 6 definitions of "operational service" gave renewed recognition of Malayan naval service after 1955, but the Respondent refuses to accept this change does or should lead to admission of Malayan service as eligible service.
It was submitted for the Respondent that although there are no other decisions of the Tribunal on all fours with this matter, the issue of the application of s 93 has been considered in Re King and Repatriation Commission (1995) 39 ALD 156. In that decision the Tribunal said, at 160 –
Section 93 of the 1990 Act made the amendments by s 37(b) and (c) to the term "allotted for duty" in s.5(12) of the Act to claims granted on or before 8 November 1990 inoperative. However the exclusion of naval forces in the complement of a sea-going vessel from the definition of operational service in s.6(1)(e) was not affected by the saving provisions of s.93, in that the amendment made by s.38 of the 1990 Act was similarly rendered operative by s.93 of that Act.
The history of s.6(1)(e) as amended by s.5 of the Veterans' Affairs Legislation Amendment Act 1987 (No 78 of 1987) (Cth), the Veterans' Affairs Legislation Amendment Act 1990 (No 2 of 1991) (Cth) and the Veterans' Affairs Legislation Amendment Act 1992 (No 70 of 1992 (Cth) all of which were made retrospective to the date of commencement of the Act, being 22 May 1986, have had the effect of excluding Mr King's service from the definition of operational service.
It was submitted for the Applicant in reply that Re King (supra) did not address the issue now raised by the Applicant, namely whether someone has the right to enjoy the continuing and ongoing operation of legislation in relation to all future decision making under the VEA Act. Nonetheless it was submitted Re King notes that s 93 made the amendments to the phrase "allotted for duty" 'inoperative' until amended, removed, deleted or overruled, none of which has happened yet.
It was submitted for the Applicant that the history of Naval members of the Malayan Emergency shows fluctuating and confused opinions by Parliament as to whether they should have access to the full range of veterans' benefits. Nonetheless, there was no basis for the Tribunal to conclude that in the Applicant's particular circumstances it would be undeserving or unintended that he should be able to access a service pension via the special savings provision in s 93 of the VALA Act. Moreover, it was submitted the Tribunal would be distracted from giving effect to the generality of the language and objectives of s 93(1) if it allowed any such conclusion to govern its construction of the provision. If the section produces an anomalous outcome in the Applicant's particular, and possibly unique, circumstances, then the law must still be applied according to its true general construction.
It was submitted for the Respondent that the Applicant was not granted a housing loan on the basis that he was allotted for duty [see letter from Defence Service Homes dated 5 June 1992 (T2, T11, p42) quoted in paragraph 9 above]. Nowhere in that letter is reference made to the Applicant's loan being granted because he was "allotted for duty". Even if the home loan was granted on the basis of the Applicant having been allotted for duty, that does not preclude him from having to satisfy the requirements in s 5B of the VEA Act which deals with having been "allotted for duty" in order to meet the requirements of qualifying service.
It was also submitted that s 93 does not provide a person in the Applicant's situation with an advantage vis a viz any claim under the VEA Act which he might be minded to make, the satisfaction of which claim otherwise depended upon his being allotted for duty. The term "allotted for duty" remains a term of art. It was submitted the dismissal of the extrinsic materials by the Applicant's Counsel does not assist the Applicant because the purpose of s 93 is not to disadvantage someone to whom a determination has been made or whose claim or application is undetermined. It was submitted that if the Applicant's submissions were correct then by a side wind the Applicant receives a windfall advantage, and that is not sustainable on a proper construction of the legislation. Stripped to its essentials, the construction on which the Applicant relies is opportunistic and unsound. As the Applicant has never rendered qualifying service, at no time has he been eligible for the service pension that he seeks.
It was submitted for the Respondent that under the provisions of s 93 of the VALA Act, and applying the amendment to s 5B(2) provided in the Rewrite Act, s 93, insofar as it relates to an application that was made under the DSH Act should be read as –
93.(1) If:
a person has made … an application under the Defence Service Homes Act 1918; and
the … application was granted on or before 8 November 1990 on the basis that the person was allotted for duty in an operational area or was a member of a unit of the Defence Force that was allotted for duty in an operational area;
subsection 5B(2) of the Veterans' Entitlements Act 1986 continues to apply in relation to the person in respect of the application that was so granted.
It was submitted that not to so interpret the provision, would enable a person to whom such an application had been granted to avoid the strictures of s 5B in respect of a claim, as yet unmade as at 8 November 1990, merely because s/he had her/his application granted previously on the basis that s/he was so allotted for duty. This would defeat the scheme of eligibility for service pensions, resting as it does on the rendering of qualifying service by the chance circumstance that 33 or more years beforehand the Applicant's housing loan was granted on the basis mentioned. That would be an odd touchstone of liability to pay, or eligibility to receive, a service pension.
It was further submitted that, properly understood, s 93 operates to protect the home loan that was granted to the Applicant in this case. Another function of s 93 was to save applications that were made at a time when the law was informed by the Full Federal Court in Doessel (supra). The purpose of s 93 is to protect an accrued right, so that when applications have been made or granted, or claims have been made under the VEA Act that are in the pipeline, they do not have to be decided under different law from that which operated at the time the claim or application was made.
In reply, it was submitted for the Applicant that the function of s 93 is not just a transitional provision preserving the benefits of past decisions in the sense of the matter granted or given in the past; it is framed to give people the benefit of a continuing and ongoing future operation of the legislation in a certain fashion.
The Respondent referred to a decision of the Tribunal Re Paterson and Repatriation Commission (1998) 54 ALD 75. In that matter, it was the Applicant's case he had qualifying service because he was allotted for duty in an operational area. Noting the amendments to the legislation, it was submitted for the Applicant in that matter that "Once operational service has been proven, because it necessarily involves proof of an allotment for duty, there is no independent requirement for qualifying service as qualifying service is simply an allotment for duty". It was submitted that a reference to HMAS Anzac in the Instrument was sufficient to allot Mr Paterson to the operational area, as he had been in the operational area during the relevant period under Schedule 2. Counsel for the Respondent referred to paragraph 11 of that decision as a "muffled echo" of the arguments put in the matter now before this Tribunal. In paragraph 12 the Tribunal in Re Paterson said at p.81 –
The tribunal must apply the relevant provisions of the legislation rather than jumping to any conclusions as to whether or not there is any purpose in having different grades of operational service and it is satisfied, particularly in light of the explanatory memorandum to the Veterans' Affairs Legislation Amendment Bill 1990, that the distinction between the words used in s.6C and the instrument and the words used in ss. 6D and 7A with respect to allotment for duty, is quite deliberate, as contended by Mr Douglass on behalf of the respondent. The words in the written instrument are not "mere surplusage". The tribunal rejects the contentions put forward on behalf of Mr Paterson and finds that, despite the amendments to the Act and the written instrument, he is not eligible for age service pension. The comments made by both parties with respect to the document indexed at T5, p 11 of the documents, take the matter no further. It recorded in 1985 that Mr Paterson did not have allotted service for the purposes of the Repatriation (Special Overseas Service) Act 1962 (Cth). The issue for the tribunal is Mr Paterson's entitlement following the lodgment of his claim.
…..
For the purposes of the Act Mr Paterson's service is now classified as operational although not warlike, but rendered in a prescribed area of operations. If Mr Paterson suffered a war-caused injury or disease, he would be entitled to compensation in the form of disability pension, however, service pension entitlements are not affected by the amendments to the Act. After the amendments to the Act Mr Paterson is found to have had operational service pursuant to s 6D(1) of the Act and he therefore meets the definition of veteran under s 5C(1). However, in order to be qualified for age service pension he is still required to have rendered "qualifying service" which means that he, or his unit, must have been "allotted for duty". Even after the amendments he must fall within s.7A(1)(a)(iii). The tribunal accepts the submission of Mr Douglass and, applying what was said by the tribunal in Re Graham and Repatriation Commission (AAT, Member A R Horton, No 13044, No 96/1555, 2 July 1998, unreported), finds that Mr Paterson did not render qualifying service, the instrument drawn to the tribunal's attention applying only to s.6D of the Act rather than s.7A(1)(a)(iii).
…. Mr Paterson does not satisfy that legislation because he was not "allotted for duty" under s.5B(2)(a). He, therefore, did not render qualifying service pursuant to s.7A(1)(a)(iii) and he is not eligible for age service pension under s 36(1)(b) even though, after 13 May 1997, he was a veteran: s.36(10)(a). Mr Handley said in Re Hawker that this is unfortunate for men such as Mr Paterson and the tribunal can understand why Mr Gibbs used the word "discrimination" in light of what he told the tribunal about Army and Air Force personnel, but the tribunal must affirm the decision under review. It is not for this tribunal to say who should have been allotted for duty but rather, its task is to apply the legislation passed by the parliament. There is no written instrument, issued by the Defence Force allotting Mr Paterson or his unit for duty.
It was submitted for the Respondent that Re Paterson (supra) is relevant for the Tribunal to consider in relation to the matter now before it. It was submitted for the Applicant that the Tribunal Re Paterson was swayed by the first decision of the Tribunal Re Graham, and therefore rests on weak foundations. The Respondent noted the Applicant had referred to a transitional right reposing in s93. It was submitted for the Respondent, however, that whatever the character of s93, "it is not a transmogrifying right".
It was submitted for the Applicant that in Davis (supra), Mr Davis was awarded service pension on a proper construction of the legislation that was upheld by the Federal Court. It was submitted the Applicant's case is on all fours with Davis. The issue of "allotment for service" in Davis's case arose in the same service context as for the Applicant. That is, it was service on a vessel seconded to the Far East during the Malay emergency and which included service prior to 1 September 1957. In Davis, the Federal Court held that "allotment for duty" depended on whether Mr Davis had been sent to serve there, and in that case the Court held he did. French J. said –
Approached in this way the concept of "allotted for duty" has no special meaning. It raises in each case a question of fact. In this case there was virtually no evidence of any special allotment procedure beyond the uninformative statement from the Department of Defence that the deployments of HMAS Queenborough and HMAS Quickmatch "were not recognised as allotted for operational service.
In Doessel (supra), a similar view was taken to the phrase "allotment for duty", notwithstanding efforts taken by the Respondent to prove the term had gained a special meaning.
It was submitted for the Applicant that people who had served in Malaya before September 1992 were not excluded from meeting the definition of having had operational service. This was changed by the insertion of s 38A of the VALA Act. People who served after 1 September 1957 did not meet the criteria of "Veteran" because they had been expressly excluded. Parliament took the opportunity in the VALA Act to remove the entitlement of "Veterans" in s 38A, but s 93 was inserted which confers the right that the Applicant seeks in this matter. Section 93(2) of the VALA Act requires existing claims to be determined by reference to the old definition, that is, according to the fact of allotment. It was submitted the provision was not retrospective in the sense of affecting pending claims, but s 93(1) of the VALA Act had the effect of marking out a category of persons who were to enjoy the right of having the Act continuing to be applied to them as if it contained the old definition. The effect of s 93 is that if a person had qualifications to become a member of that class of persons, then s 5(12) continues to apply as if the amendments made by s 37(b) and (c) had not been made. It was submitted the person continues to enjoy all his future dealings under the Act and where those provisions are then adopted by the DSH Act, the enjoyment of a de facto definition of "allotted for duty".
It was submitted for the Applicant that for policy reasons, if someone had eligibility previously determined in relation to the issue of "allotment for duty", it would be unfair to then refuse them benefits by reason of the introduction of the artificial definition of "allotment for duty" because of the inter-relationship between the VEA Act and the DSH Act. The Applicant, under the DSH Act, has already enjoyed entitlements on the basis of having been "allotted for duty".
It was submitted for the Applicant that the Respondent attempts to read down s 93(1) so as to prevent any reliance on eligibility determinations under the DSH Act "almost 40 years previously". It was submitted that such an understanding was inconsistent with a finding of law on which His Honour remitted this matter to the Tribunal. In the hearing before the Federal Court the Respondent conceded s 93(1) of the VALA Act was capable of application to the Applicant's 1996 claim for service pension if relevant findings of fact were made on its preconditions.
It was submitted that this concession was accepted by His Honour and was indispensable to the making of his Order, because otherwise the previous Tribunal's failure to advert to the section would have been immaterial. Relying on the decision of the High Court in Blair v Curran (1939) 62 CLR 464 at 531 it was submitted that an issue estoppel now prevents the Respondent arguing to the contrary.
In reply, Counsel for the Respondent referred the Tribunal to the precise words of Sackville J to which Counsel had agreed unequivocally and submitted that although there may well have been material which would lead the Tribunal to conclude the Applicant had a claim granted on the basis that he was allotted for duty in an operational area, no similar concession could be made that the Tribunal was obliged to reach that conclusion.
In reply, it was submitted for the Applicant that the matter that His Honour remitted was the application of facts to a legislative provision that the Respondent conceded was capable of application. Counsel for the Applicant maintained there is an issue estoppel in the construction or issues of law that the Respondent can litigate before the Tribunal that was not litigated before His Honour. It was submitted the Respondent had ample opportunity to proceed with that litigation if it wished to do so. If the Respondent had put the same submissions to His Honour in respect of the construction of s 93, namely that all s 93 is doing is preserving old benefits and it is of no assistance to new claims for benefits, then if His Honour had upheld that construction, that would have been the end of the appeal.
It was submitted for the Applicant the Respondent's argument is untenable because –
It fundamentally contradicts principles of statutory interpretation, because it requires restrictive words to be read into a beneficial provision intended to extend eligibility: Repatriation Commission v Hawkins (1993) 45 FCR 205 at 211.
The manifest object of the transitional provisions is to confer on a class of persons a special statutory right in relation to future decisions that address an "allotted for duty" criterion, which arises by reason of a previous favourable determination of that issue in the course of a grant of either Repatriation or War Service Homes benefits. In effect, a "person" referred to in s 93(1) continues to enjoy the ordinary concept of "allotted for duty" in future decision-making, so that his/her status as a person who was, in fact, allotted for duty in an operational area was preserved.
This object is indicated in the extrinsic materials and those materials give no assistance to the Respondent.
In this context, it would be "surprising" and "unsuitable" for the preserving effect of the transitional provision not to be available to all persons whose "allotted for duty" eligibility had been recognised previously: a fortiori the longer that this had occurred.
applicant's alternative argument
It was submitted for the Applicant in the alternative that the Instrument for determining eligibility under the Veterans' Entitlements Act 1986 dated 26 November 1997 (exhibit 2) satisfied the new definition of "allotted for duty" as contained in s 5B(2)(a) of the VEA Act. It was submitted there is nothing in either s 5B(2) or s 6D(1) of the VEA Act which requires, or allows, the Defence Force to issue an instrument that limits the use to which it is to be put by the Respondent "in determining … entitlements under the Act". Once an Instrument is located which is intended to be used by the Respondent for this general purpose, the facts certified in the Instrument must be considered generally in relation to all the provisions of the Act. The statutory function of an Instrument is to provide conclusive evidence of facts relevant to deciding eligibility for one or more veterans' entitlements. It cannot confine the eligibility provisions in which it may be used.
It was submitted the present Instrument, in paragraph 1, expressed the requisite general purpose, and these words should not be read down by the reference to s 6D in the heading, since the heading carries no such exclusive intention. If there is doubt on this, the general statement in paragraph 1 should be given full effect, since the Instrument would be invalid if it were read to be confining as to its intended use. Therefore the present Instrument was of the type required by s 5B(2), that is, one "issued for use by the Respondent in determining a person's eligibility for entitlements under this Act".
It was submitted that it is then necessary to consider the body of the Instrument so as to decide whether, in the language of s 5B(2)(a) of the VEA Act, it "retrospectively" allotted HMAS Tobruk for duty in the Malayan operational area. It was submitted the notion of a naval unit "retrospectively" being sent to fight in hostilities after it has in fact performed such duties is a nonsense. The reference in s 5B(2) of the VEA Act to a retrospective Instrument which does this must, therefore, be read as referring to an Instrument, issued for the requisite use, which acknowledges the past fact of an allotment. It was submitted that although the word "allotted" is not used, the Act does not require such formality [viz. s 119(1)(g)].
It was submitted the Respondent has admitted, and the evidence shows, that the area in which HMAS Tobruk performed its naval duties during the stated period was, or included, an "operational area". Therefore the Tribunal is bound to read the Instrument as certifying the ship's presence in that location which was pursuant to the official requirements with which it was "attached" to the Far East Strategic Reserve. It was submitted that therefore the Instrument retrospectively allotted HMAS Tobruk for duty in an operational area at the relevant time, and this provided sufficient evidence to satisfy s 5B(2) when applied to s 7A(a)(iii) of the VEA Act.
The Applicant had completed a twelve year engagement with the Royal Australian Navy when he was discharged on 7 January 1960. It was submitted for the Respondent that it is only by reason of the Instrument that the Applicant has rendered operational service for the period 2 to 8 July 1955 while attached to the Far East Strategic Reserve aboard HMAS Tobruk. The Applicant's period of operational service is of no relevance to the question of his qualifying service. The abovementioned Instrument was issued in respect of s 6D of the VEA Act that identifies a particular category of operational service relevant to the Applicant's service. It was submitted for the Respondent that there was no such Instrument in respect of having been "allotted for service"; the Instrument before the Tribunal does not answer that description. The language of it bears the language of s 6D of the VEA Act. It does not address the question whether the Applicant has been allotted for duty. In contrast, the Tribunal's attention was drawn to an Instrument dated 11 July 1994 and another dated 30 October 1993, both of which on their face refer specifically to s 5B(2) of the VEA Act and refer specifically to the concept "allot for duty". It was submitted the construction urged upon the Tribunal by Counsel for the Applicant does not bear scrutiny.
The Tribunal was referred to Exhibit A (item Q), being a letter from the Applicant to Defence Service Homes dated 2 November 1996 asking for the meaning of "allotted for duty" as the phrase appears in s 3 of the WSH Act as amended. The reply to the Applicant dated 7 November 1996 enclosed a copy of the meaning of "allotted for duty" as stated in the VEA Act. It is not clear whether the addendum to item Q of the exhibit, headed Who may be considered for a DSH loan?, was part of the reply to the Applicant. That document stated, insofar as is relevant –
You may be eligible for a DSH loan if:
· …….
· you were allotted for duty in an operational area in Korea between 27 June 1950 and 31 August 1957 inclusive or in Malaya between 29 June 1950 and 31 August 1957 inclusive. In addition, if you were allotted while in Australia or another Commonwealth country, you must have left Australia or the other Commonwealth country for that duty before 1 September 1957:
· you served on land in Malaya or Singapore between 1 September 1957 and 27 May 1963 inclusive;
· you served on continuous full time service outside Australia while you or your unit were allotted for duty in a prescribed operational area:
It was submitted for the Respondent that the abovementioned material falls well short of answering the description that the Applicant's home loan was granted on the basis of his being allotted for duty. It was submitted this material represents the high water mark on which the Applicant would rely to make good the contention that in respect of s 93 of the VALA Act he brings himself within the provision. It was submitted for the Respondent that the Applicant cannot bring himself within the provisions of s 93. In reply, it was submitted for the Applicant that the abovementioned documents are irrelevant as they relate to manuals referring to current eligibility for Defence Service Home loans.
consideration of evidence and findings of factThe Applicant made an application for a war service home loan under the DSH Act in 1963 and it was granted before 8 November 1990. The Respondent submitted there was no evidence that the loan was granted on the basis of the Applicant having been allotted for duty in an operational area, or being a member of a unit of the Defence Force that was allotted for duty in an operational area. The Tribunal would agree the documentary evidence from the Defence Service Homes on this issue is less than precise. Undoubtedly, when Sackville J. commented in the Federal Court proceedings (transcript p.17) –
…. There may be material which would justify the Tribunal in deciding that the applicant did indeed have an application that was granted on the basis that he was allotted for duty in an operational area –
he was leaving open the possibility that evidence may be able to be produced to show the factual basis on which the decision was made in respect of the Applicant's war service home loan and that he had been allotted for duty in an operational area. However, despite being given this opportunity when the matter was remitted for rehearing, no such evidence was forthcoming. The Tribunal is not looking behind the decision to grant the Applicant a war service home loan. When one refers to the WSH Act as it was in 1963, the Applicant's service on HMAS Tobruk in the Malayan Emergency in 1955 was before the commencement of the Repatriation (Far East Strategic Reserve) Act 1956. Moreover, s 4 of the WSH Act required the person to be "allotted for duty in an operational area …" in order to meet the definition of 'Australian Soldier', and in turn, an Australian Soldier was an 'eligible person' for the purposes of obtaining a war service homes loan. Thus, the only basis for the Applicant being granted that loan in 1963 was that he had been "allotted for duty in an operational area".
Notwithstanding that there is no evidence before the Tribunal to support a finding that the Applicant was "allotted for duty in an operational area", the Tribunal finds, and there appears to be no dispute, that the Applicant was granted a war service homes loan on the basis that he was "allotted for duty in an operational area". The function of s 93 of the VALA Act clearly protects the Applicant's right to that loan. The issue is whether s 93(1) has any function beyond that of a savings provision.
The Tribunal notes paragraph 14 of His Honour's judgment where, after recording the submissions made by both parties on the construction of s 93(1), he stated –
Neither party invited me to decide this question of construction, in the absence of findings of fact relating to the circumstances in which the application served in or near Malaya in 1955 and to the basis on which his application under the DSH Act succeeded.
It is clear, therefore, that His Honour has not determined the question of the construction to be given to s 93(1). Nor has this issue been addressed by earlier decisions of the Tribunal. Therefore, not only has the matter been remitted to the Tribunal to make findings of fact in relation to the granting of the Applicant's war service homes loan and related issues, but in the process of the Tribunal making its decision according to law, the question of construction must also be addressed.
The Tribunal does not accept the submissions on behalf of the Applicant in respect of issue estoppel, and would distinguish this matter from the decision of the High Court in Blair & Ors and Curran & Ors (1939) 62 CLR 464.
The Federal Court in Davis (supra) held the concept of "allotted for duty" had no special meaning, but raised in each case a question of fact. It was also held that in the absence of evidence of any special allotment process in the area in question, the Tribunal's finding, that having regard to Mr Davis's operational service he had been allotted for duty, was justified. Mr Davis served on HMAS Queenborough during the Malayan Emergency. In that matter the Repatriation Commission submitted that although Mr Davis had rendered service in an operational area he was not "allotted for duty" in that area within a special meaning to be attributed to that phrase under the VEA Act. French J. noted that –
Given that Davis had no choice but to participate in the operation under review, he had been in the opinion of the Tribunal, "allotted for duty". The factual material relied upon by the Commission to the contrary was virtually non-existent comprising no more than a paragraph from the letter of 23 January 1988 in which the Department of Defence advised the Commission in relation to the activities of HMAS Queenborough and HMAS Quickmatch as part of the British Commonwealth Far East Strategic Reserve:
"The above deployments of HMAS Queenborough and Quickmatch are not recognised as allotted for operational service although it is recognised by the Defence Service Homes Corporation for the purposes of Defence Service Home Loans."
It is important when considering the Federal Court decisions of Davis and Doessel (supra) to note they related to the legislation as it was before the VALA Act, and therefore s 93(1) could not have been relevant at that time.
While the Tribunal has been enlightened by the careful analysis of the historical development of the legislation provided by the Respondent in relation to the issue of qualifying service and allotment for duty, this can only be used to provide meaning to the words of the legislation. It cannot be used to change those words, or insert new words, as has been suggested on behalf of the Respondent: see Clear (supra) and Hawkins (supra) at 211.
The Tribunal notes the structure of the VALA Act and that s 93 is contained in Part 7 under the heading 'Transitional'. Part 2 of the VALA Act relates to amendments to the DSH Act; part 3 relates to amendments to the Public Service Act 1922; part 4 relates to amendments to the Seamen's War Pensions and Allowances Act 1940; part 5 relates to amendments to the Social Security and Veterans' Affairs Legislation Amendment Act (No.4) 1989; part 6 relates to amendments to the VEA Act. The Transitional Provisions in part 7 is an omnibus section dealing with "certain claims and applications made on or before 8 November 1990" and referring within the one paragraph to the VEA Act or the DSH Act. To understand the intention of this section it must be noted that the amendments provided in s 7(c) of the VALA Act include an amendment to the DSH Act to the definition of "Australian Soldier" to read –
"A person who, as a member of the Defence Force or as a member of a unit of the Defence Force, was allotted for duty within the meaning of subsection 5(12) of the Veterans' Entitlements Act 1986 in the operational area described in item 9 of Schedule 2 to that Act during the period specified in that item:"
Hence, the amendment provides for the definition of "allotted for duty" as it appeared in s 5(12) of the VEA Act to be used for the purposes of s 4 of the DSH Act. This would appear to underpin the structure of part 7 of the VALA Act to combine reference to both the VEA Act and the DSH Act in the savings provisions of s 93(1). Nowhere, however, in the history of the respective legislation is there any provision which purports to allow eligibility for a war service homes loan under the DSH Act to satisfy the requirements of s 7A(1)(a)(iii) of the VEA Act, yet that is the effect which the Applicant is trying to achieve in these proceedings.
The Explanatory Memorandum to the Veterans' Affairs Legislation Amendment Bill 1990 (both Senate and House of Representatives) and the Second Reading speech refer to s 93(1) as a "savings provision". It was included "so as not to disadvantage anyone in respect of whom a determination to grant eligibility has already been made". The Explanatory Memorandum further states that "claims and applications lodged after 8 November will be determined on the basis of the proposed amendments to the allotment provisions contained in this Bill" (p.89).
The role of the amendment in the VALA Act regarding "allotted for service" in relation to the definition of "qualifying service" was to provide a specific meaning to the term and to overcome the interpretation of "allotted for service" that had been introduced by the Federal Court in the decisions of Doessel, Davis and Hawkins (supra); see Second Reading Speech, Veterans' Affairs Legislation Amendment Bill 1990, House of Representatives and Senate Standing Committee for the Scrutiny of Bills-First to Twelfth Report,p.184.
While the Tribunal notes that this is beneficial legislation which should not be interpreted harshly, it is necessary, nonetheless, to give careful consideration to the purpose of the amendment and to Parliament's intention. In so doing, the Tribunal rejects the submissions made on behalf of the Applicant, as they are clearly outside the purpose of the amendment and the intention of Parliament. In the matter now before the Tribunal s 93(1) has no role beyond that of protecting the Applicant's war service homes loan. It does not defeat the scheme of eligibility for service pension that rests on the Applicant having rendered qualifying service.
The Tribunal adopts the reasoning already applied by the Tribunal in Re Patterson (para 35). Notwithstanding that the Tribunal in that matter relied on the earlier decision of the Tribunal Re Graham, that does not detract from the validity of the interpretation taken. In order to be qualified for age service pension the Applicant is required to have rendered "qualifying service" which means that he, or his unit, must have been "allotted for duty". He must fall within s 7A(1)(a)(iii) of the VEA Act.
In considering whether the Applicant was "allotted for duty" pursuant to s 7A of the VEA Act the Tribunal will now consider the submissions made on the issue of whether the Instrument for determining eligibility under the Veterans' Entitlements Act 1986 dated 26 November 1997 (exhibit 2) is also an Instrument for the purposes of s 7A(1)(iii). On its face it refers only to s 6D of the VEA Act.
The Tribunal considers that the Instrument (exhibit 2) is quite clear on its face that it was issued pursuant to s 6D(1) of the VEA Act. It has no force in respect of s 5B(2) of the VEA Act. There are other Instruments that relate specifically to s 5B. Subsection 6D(1) provides –
6D Operational service – other post World War 2 service
This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a) …. or
(b) was attached to the Far East Strategic Reserve at any time during the period from and including 2 July 1955 to and including 27 May 1963:
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act. (Tribunal's emphasis).
The Tribunal rejects the submission for the Applicant that in effect a section specifically relating to operational service which empowers the issue of a written instrument issued by the Defence Force for use by the Respondent in determining a person's eligibility for entitlements under this Act, is nonetheless an instrument of general purpose rather than being specifically confined for application to that section of the Act which provides for it.
Subsection 5B(1) serves to explain the use of a written instrument in respect of a person or a unit of the Defence Force that was "allotted for duty" in an operational area, viz. –
5B(1) In this Act, unless the contrary intention appears:
allotted for duty in an operational area has the meaning given by subsection (2). (Tribunal's emphasis).
The terms of subsection (2) are set out in paragraph 8 above. In considering both s 5B and 6D in juxtaposition, the Tribunal interprets that a written instrument for which provision is made in s5B(2) is an instrument of general application, unless the contrary intention appears, and a contrary intention appears in s6D by providing specifically for a written instrument under that section which relates only to operational service. Therefore, an Instrument made under the provisions of s6D, such as the Instrument dated 26 November 1997 (exhibit 2), does not have general application, and cannot be applied in this case which relates to qualifying service.
The Applicant's naval service in the Far East Strategic Reserve is not included on any written instrument issued by the Defence Force pursuant to s5B of the VEA Act that he or his unit were allotted for duty. Accordingly, the Tribunal finds that he was not allotted for duty under s5B(2). Therefore he did not render qualifying service pursuant to s7A(1)(a)(iii) and he is not eligible for age service pension under s36 of the VEA Act.
The Tribunal therefore affirms the decision under review.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 4 November 1999
Date of Decision 1 May 2000
Counsel for the Applicant Mr M. Smith
Solicitor for the Applicant Rockliffs Solicitors
Counsel for the Respondent Mr Green
Solicitor for the Respondent Australian Government Solicitor
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