Repatriation Commission v Broadbent

[2001] FCA 1434

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Broadbent [2001] FCA 1434

Veterans’ Affairs – Service pension refused by applicant on the basis that the veteran had not rendered qualifying service – whether veteran rendered qualifying service – service in Malaya – veteran not awarded British General Service Medal with Malaya Clasp – meaning of s 7A(1A) of the Veterans’ Entitlements Act 1986 (Cth).

Veterans’ Entitlements Act 1986 ss 7A(1)(a)(iii), 7A(1A)

REPATRIATION COMMISSION v HARRY ROBERT BROADBENT

D 3 OF 2001

von DOUSSA J
15 OCTOBER 2001
ADELAIDE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D3 OF 2001

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	HARRY ROBERT BROADBENT RESPONDENT
JUDGE:	von DOUSSA
DATE OF ORDER:	15 OCTOBER 2001
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal dated 12 December 2000 be set aside. 

2.The decision of the delegate of the applicant that the respondent did not render qualifying service within the terms of s 7A of the Veterans’ Entitlement Act 1986 be affirmed.

3.Each party to bear its or his own costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D3 OF 2001

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	HARRY ROBERT BROADBENT RESPONDENT

JUDGE:	von DOUSSA
DATE:	15 OCTOBER SEPTEMBER 2001
PLACE:	ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal set aside a decision of a delegate of the Repatriation Commission refusing the respondent’s claim for a service pension. The delegate had refused the claim on the basis that the respondent did not render qualifying service within the terms of s 7A of the Veterans’ Entitlement Act 1986 (Cth) (the Act). The question of law raised by this appeal concerns the proper interpretation of s 7A(1A) of the Act.

2. At the time when the respondent claimed a service pension, and when the Tribunal gave its decision on 12 December 2000, “qualifying service” was defined by s 7A as follows:

   “(1)For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service: 

   (a)if the person has, as a member of the Defence Force:

   …

   (iii)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, or as a person who was allotted for duty, in that area;

   …”

3. Section 7A(1A) provided:

   “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.”

4. Item 3 in Schedule 2 provided:

“Column 1	Column 2
The area comprising the territories of the countries then known as the Federation of Malaya and the Colony of Singapore, respectively.	The period from and including 1 September 1957 to and including 27 May 1963.”

1. Schedule 2 describes in fourteen separate items, fourteen operational areas.  By reference to Schedule 2, ss 6 to 6F of the Act define ‘operational service’.  Section 6C defines operational service after World War II in operational areas.  Section 6C(1) provides:

   “Subject to this section, a member of the defence force who has rendered continuous full-time service in an operational area as:

   (a)a member who was allotted for duty in that area;  or

   (b)a member of a unit of the Defence Force that was allotted for duty in that area;

   is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.”

2. Before the Tribunal the facts were not in dispute.  The respondent rendered operational service from 12 October 1961 to 8 December 1962 as a member of the 2^nd Battalion, Royal Australian Regiment (2RAR) on the Thai-Malaya border during the operations against communist terrorists in the Malaya jungle, being an area within the description in column 1 of item 3 of the Second Schedule.

3. The parties were also agreed that the respondent was not awarded, and is not eligible to be awarded, the British General Service Medal with Malaya Clasp.  That medal was awarded for one or more days service by army personnel on the strength of a unit in the Federation of Malaya in the period 16 June 1948 to 31 July 1960.  The award of the medal ceased on 31 July 1960 because of a proclamation by the Federation of Malaysia dated 30 July 1960 which repealed the Emergency Regulations Ordinance 1948 with effect from 31 July 1960.

4. On 1 September 1960 the Prime Minister (the Hon Mr Menzies) in answer to the following question asked by the Hon Mr Whitlam:

   “Now that the Government of Malaya has declared the Emergency there at an end and since Malaya is not a party to or covered by Seato, will he say what formal arrangements exist between Malaya and Australia concerning the Australian land and air forces based in Malaya?”

   said in the House of Representatives:

   “The facts are that after Malaya became an independent member of the Commonwealth, an Agreement on External Defence and Mutual Assistance was concluded on 12 October 1957, between the Governments of the Federation of Malaya and the United Kingdom.  Article III, of this Agreement affords to the Government of the United Kingdom the right to maintain in the Federation such forces, including a Commonwealth Strategic Reserve, as the two Governments agree to be necessary to assist the Federation of Malaya in its external defence and for the fulfilment of Commonwealth and international obligations.  The Australian land and air forces based in Malaya form part of the Commonwealth Strategic Reserve;  and the Australian Government, although not a party to the Defence Agreement itself, has exchanged letters with the Malayan Government to associate itself formally with those provisions of the Agreement which are applicable to the Commonwealth Strategic Reserve.

   The termination of the Emergency and the promulgation of new Malayan legislation has not changed this situation.  On 1 August 1960 an Internal Security Act came into force which empowers the Malayan Government to deal with the risks to internal security presented by the threat of subversion, particularly in border areas of the Federation, which have been proclaimed as border security areas under the Act, where operations against the terrorists continue.  An order under the Malayan Visiting Forces Act 1960 provides in effect for the Commonwealth forces in Malaya, including the Australian forces, to assist in operations against the terrorists in such border security areas.”  (Hansard, House of Representatives, 31 August - 1 September 1960 at p 668)

5. The respondent’s case gives emphasis to the statement that the termination of the Emergency and the promulgation of the new Malayan legislation had not changed the situation on the ground.  Before the Tribunal there was no dispute that 2RAR faced hostile forces of the enemy on the Thai-Malaya border after 31 July 1960.  In particular, the military operations being conducted on the border during the Emergency continued unchanged after 31 July 1960.  Although stationed at the Terendak Camp, Malacca, the battalion’s operations were conducted in the Thai-Malaya border areas.

6. Before the Tribunal the respondent submitted that insofar as the Act by s 7A(1A) had the effect of imposing a cut-off date at 31 July 1960 on the relevant part of the definition of qualifying service in s 7A(1)(a)(iii), it ignored the reality of the continuing factual situation as acknowledged by Prime Minister Menzies. Further, the respondent relied on the report of findings of a government enquiry conducted by Major General R F Mohr dated February 2000 (entitled Review of Service Entitlement Anomalies in respect of South East Asian Service 1955-75).  That report had led to an announcement by the government that the Act would be changed to recognise service of defence personnel such as the respondent as qualifying service.  Amending legislation came into force with effect from 1 January 2001:  Veterans Affairs Legislation Amendment (Budget Measures) Act 2000, No 157 of 2000. The relevant amendments concerning operational service in the Thai-Malayan border area were affected by items 3, 5, 6 and 7 of the Fourth Schedule of that Act. The affect of the amendment is to entitle the respondent to a service pension from 1 January 2001, but that is by reason of legislative change which occurred after the date of the Tribunal’s decision. It is not necessary to describe in detail the way in which the amendments affected change, but the changes were not simply the repeal of s 7A(1A).

7. Notwithstanding that the respondent was not eligible to be awarded the British General Service Medal with Malaya Clasp because his qualifying service commenced after 31 July 1960, the Tribunal set aside the decision of the delegate to refuse a service pension, and substituted a decision that the respondent had qualifying service within the terms of s 7A(1A) of the Act. I set out the paragraphs of the Tribunal’s reasons which led to this decision:

   “14.It is clear that there is a serious inconsistency between sub-section 7A(1A) and paragraph 7A(1)(a)(iii) when read in conjunction with Item 3 Schedule 2.

   15.Item 3 refers to a period of service from 1 September 1957 to and including 27 May 1963.  It is clear enough on the evidence that the British General Service Medal with Malay Clasp was not awarded in respect of service after 31 July 1960 (Exhibit A).  It is reasonable to infer that this position arose out of the unilateral proclamation by the Federation of Malaya to the effect that the Emergency was taken to have ceased on 31 July 1960.  The proclamation declared that the need for the Emergency Regulations Ordinance 1948 had ended and the Ordinance was thereby repealed.  That was, in my view a legislative recognition that the Emergency had ended.  As Prime Minister Menzies explained in Parliament responding to a question on notice on 31 August 1960 the repealed ordinance was replaced by the Internal Security Act which came into force on 1 August 1960.

   16.There is therefore a fundamental ambiguity between the operation of sub-section 7A(1A) which does not refer to a closing off date in the sub-section and Item 3 of Schedule 2 which does include a closing off date with a clear intention by the Parliament that service to and including 27 May 1963 was relevant service for the purposes of paragraph 7A(1)(a)(iii) of the Act.

   17.In my view the apparent inconsistency can be resolved by reading down sub-section 7A(1A) so that it only applies to service within the terms of paragraph 7A(1)(a)(iii) up to 31 July 1960. Service to that date will be qualifying service only where sub-section 7A(1A) is satisfied. For service after 31 July 1960 sub-section 7A(1A) should be regarded as having no operation because the British General Service Medal with Malay Clasp could not be awarded for such service.

   18.If the Parliament had intended that only service up to 31 July 1960 was to be qualifying service it would have said so in Item 3 Schedule 2 or paragraph 7A(1)(a)(iii).  Clearly that was not the intention of the Parliament.  The intention was to include service to 27 May 1963.  Given that the legislation is beneficial legislation that intention should be given effect so as to remove the ambiguity (Cooper Brookes (Woolongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297).

   19.For these reasons I have decided that the decision under review should be set aside and there be substituted a decision that the applicant had qualifying service in relation to his service in Malaya within the terms of Item 3 Schedule 2 and section 7A(1)(a) of the Act.  The matter will be remitted to the respondent to give effect to the Tribunal’s decision.  The date of effect will be 15 August 1997 – the date the applicant lodged his claim.”

8. The applicant submits that the Tribunal fell into error of law in pars 14, 16, 17 and 18 of its reasons. In particular, it is contended that there is, no inconsistency between s 7A(1A) and s 7A(1)(a)(iii) as the latter provision is expressed to be subject to s 7A(1A). Further, there was no fundamental ambiguity between the operation of s 7A(1A) and item 3 of Schedule 2. Section 7A(1A) merely limited the scope of item 3 of Schedule 2 for the purposes of the definition of qualifying service in s 7A. Ambiguity between the operation of the two provisions does not arise merely because the result appears to be unfair or arbitrary when applied to a particular factual situation. Moreover, item 3 of Schedule 2 retains its wider scope in respect of its other role defining operational areas for the purposes of the definition of operational service in ss 6 to 6F of the Act.

9. In my opinion, the submission of the appellant are correct. As a matter of statutory construction, inconsistency cannot arise between s 7A(1A) and s 7A(1)(a)(iii) when the latter provision is expressed to be subject to the former.

10. In my opinion, there is no uncertainty or ambiguity arising from the terms of the statute which would allow the Court to depart from the ordinary and literal meaning of the terms of the statute either under the principle recognised in Cooper Brookes (Woolongong) Pty Ltd v Federal Commissioner of Taxation or otherwise. Until 1 January 2001 the Act was clear in its terms that there was no qualifying service eligibility pursuant to s 7A(1)(a)(iii) in respect of service rendered in an area described in column 1 of item 3 of Schedule 2 during the period specified in column 2 of that item where the person did not meet the requirement of s 7A(1A) of having been awarded or having become eligible to be awarded a British General Service Medal with Malaya Clasp.

11. I agree with the submission of counsel for the appellant that by “reading down” s 7A(1A) in a manner which it has done, the Tribunal has reversed Parliament’s intention by making that sub-section subject to s 7A(1)(a)(iii) when read in conjunction with item 3 of Schedule 2. The Tribunal’s “reading down” of s 7A(1A) rendered it of no affect in respect of service after 31 July 1960. Paragraph 18 of the Tribunal’s reasons set out above does not recognise the wider role of item 3 of Schedule 2 beyond that of imposing one of the tests for qualifying service when read in conjunction with s 7A(1A). That wider role has the effect of granting operational service under s 6C(1) for the extended period to 27 May 1963, and a grant of operational service attracts the payment of disability pension under s 13 of the Act, and benefits under the Defence Services Homes Act 1918 (Cth) where “Australian soldier” is defined in s 4 by reference to operational areas listed in Schedule 2 of the Act.  The present respondent has been the recipient of benefits under both s 13 of the Act and under the Defence Services Homes Act 1918 by reason of the wider role of item 3 of Schedule 2.

12. Mr McNab, counsel for the respondent, skilfully presented submissions sought to uphold the decision of the Tribunal.  He contended that eligibility for the award of a British General Service Medal with Malaya Clasp is determined by an instrument of the United Kingdom Government, that is of a government of a “foreign power”:  see Sue v Hill (1999) 199 CLR 462 at 503. He argued that it would be an error of law to ascertain the intention of the legislature by reference to such an instrument. In my opinion no such error of law arises. It is within the power of the Parliament to condition eligibility upon whatever criteria it selects, even if those criteria involve the application of an entitlement to the award of a medal under the law of another sovereign power.

13. Then Mr McNab argued that the intention of Parliament should be ascertained by taking into account the scope and purpose of the relevant provisions and their statutory context in relation to Australian veterans.  As a general proposition that may be accepted.  However, the scope and purpose of the legislation in that respect is to be ascertained by first considering the terms of the legislation.  If those terms are clear in their import and free of ambiguity, the literal meaning of the legislation must be accorded full effect.

14. Counsel contended that s 7A(1A) was not free from ambiguity, and lacked certainty because, so counsel asserted, the terms for eligibility for an award of the British General Service Medal with Malaya Clasp was not easy to ascertain. Reference was made to the reasons for decision of the Administrative Appeals Tribunal in Choo Ying Quo v Repatriation Commission (1992) 15 AAR 152 to support the suggestion that it was not easy to ascertain the eligibility criteria for the British General Service Medal with Malaya Clasp. The reasons for decision in that case record that the criteria for the British General Service Medal with Malaya Clasp are specified by the UK War Office under Special Army Order 58. The reasons for decision go on to cite part of the Order said to be relevant to that case. The portion cited does not refer to the final qualifying date for service in Malaya. The Court was also directed to a facsimile sent by the Australian War Memorial to the advocate who represented the respondent before the Tribunal. This facsimile had been tendered as information in support of the respondent’s case. Included in the facsimile was an extract from a book entitled British Battles and Medals by Major L L Gordon, published in London in 1979 which confirmed that eligibility for the British General Service Medal with Malaya Clasp was confined to the period 16 June 1948 to 31 July 1960.  It was submitted that the Court should infer that because the extract from Special Army Order 58 in Choo did not refer to the final qualifying date for the Malaya Clasp, and that the Australian War Memorial when asked by the respondent’s applicant to identify the eligibility criteria for the medal forwarded an extract from a textbook, rather than a copy of an official UK instrument, that it was difficult to find an official statement of the criteria, and that this difficulty rendered s 7A(1A) uncertain. I am unable to accept this submission. Whilst the information before the Tribunal comprised only the extract from British Battles and Medals, the criteria for the award of the medal was not an issue before the Tribunal.  The parties had agreed that the respondent was not awarded, and was not eligible to be awarded the medal.  In Choo it would not have been relevant to the outcome of that case to refer to the final date for the award of the medal with the Malaya Clasp as Mr Choo had been awarded the medal in 1957.  The absence of such a reference does not indicate that the final cut-off date could not easily be ascertained.

15. The information before this Court fails to demonstrate any basis for inferring that at a time when the precursor to s 7A(1A) was enacted there was any uncertainty about the criteria for eligibility for the British General Service Medal with Malaya Clasp, nor that there was any difficulty in ascertaining those criteria. On the contrary, the fact that there was at no stage disagreement between the parties about those criteria points strongly to the opposite conclusion.

1. In the event that the Court considered that a literal reading of s 7A(1A) gave rise to no ambiguity or uncertainty, Mr McNab argued that the Court should nevertheless infer that Parliament must have assumed that eligibility for the British General Service Medal with Malaya Clasp extended over the full period prescribed in column 2 of item 3 of Schedule 2 because to enact otherwise would give rise to injustice, unjustified discrimination, and be arbitrary. In short, it was submitted that the Court should conclude that s 7A(1A) reflected a mistaken understanding of the eligibility criteria for the medal, and should read down s 7A(1A) in the manner adopted by the Tribunal. If Parliament had been under the misapprehension alleged, there would have been no point in enacting s 7A(1A). I consider the fact that s 7A(1)(a)(iii) was made subject to s 7A(1A) indicates that Parliament was not under such a misapprehension. Further, it was submitted that the repeal of s 7A(1A) in 2000 also supports the view that Parliament belatedly recognised a mistake in its legislation. The Explanatory Memorandum states that the amendment was in consequence of Major General Mohr’s report. The anomaly identified by Major General Mohr was not as to the cut-off date, but as to the fact that there had been continuing war like operations in the Thai/Malaya border area, though not throughout the whole of the territories of the Federation of Malaya. The explanatory memorandum says that having regard to the recommendations in the report and the evidence obtained in the course of the review, the government decided to extend eligibility for qualifying service to veterans who had served in a number of different areas including along the Thai-Malaya border. The explanatory memorandum indicates that the amendments were due to a change of government policy, not for the purpose of correcting a drafting mistake or misapprehension in earlier legislation.

2. In an endeavour to avoid the force of the applicant’s argument that inconsistency between s 7A(1A) and s 7A(1)(a)(iii) could not arise because the latter provision was expressly subject to the former, respondent’s counsel referred the Court to the precursor to s 7A(1A) which was introduced into the Act by the Veterans Entitlement Amendment Act 1991 (No 72 of 1991).  That amendment introduced s 7A which at the time relevantly provided: 

   “7A. (1)For the purposes of Part III, a person has rendered qualifying service:

   (a)if the person has, as a member of the Defence Force:

   (i)      …

   (ii)     …

   (iii)    rendered service outside Australia:

   (A)as a member of a unit of the Defence Force that was allotted for duty;  or

   (B)while the person was allotted for duty;

   in an area described in item 1, 2, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1) during the period specified in column 2 of that Schedule opposite to that description;  or 

   (iv)    rendered service outside Australia:

   (A)as a member of a unit of the Defence Force that was allotted for duty;  or

   (B)while the person was allotted for duty;

   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, being 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;  or

   (v)     …”

3. In the further amendment to the Act affected by the Veterans Affairs (1995-1996 Budget Measures) Legislation Amendment Act 1995, No 128 of 1995, s 7A(1)(iii) was omitted and substituted with the present s 7A(1)(a)(iii), and the former s 7A(1)(iv) was omitted and s 7A(1A) was added. The Explanatory Memorandum in respect of the amendment to the former s 7A(1)(a)(iii) and (iv) said the amendment involved “no policy change but is a provision with clearer readability”. It was submitted on the respondent’s behalf that the clarity of meaning arising from the opening words of the new s 7A(1)(a)(iii), namely “subject to subsection (1A)” was not apparent in the pre-1995 provisions. On the contrary it was submitted that the uncertainty arising from the reference to the British General Service Medal with the Malaya Clasp in the former s 7A(1)(a)(iv) was greater, and the different form of words used in s 7A(1A) did not remove the underlying uncertainty.

4. I do not accept this argument. In my opinion it is clear both from the pre-1995 provisions, and from the amendments which inserted s 7A(1A) that service in the area comprising the territories of the countries then known as the Federation of Malaya and the Colony of Singapore (item 3 of Schedule 2 in column 1) had to be service in respect of which the person has been awarded, or has become eligible to be awarded, a British General Service Medal with Malaya Clasp. The fact that item 3 of Schedule 2 was omitted from the former s 7A(1)(a)(iii), and was separately dealt with in s 7A(1)(a)(iv), in my opinion made it clear that qualifying service in respect of service in the area of column 1 of item 3 of Schedule 2 was conditioned on not only the temporal limitation which appeared in column 2, but also on the requirement of eligibility for the British General Service Medal with the Malaya Clasp.

5. In my opinion, the Tribunal erred in its construction of s 7A(1A). Upon the proper construction of that provision the respondent did not have qualifying service in relation to his service in Malaya. The Tribunal should have dismissed the application for review, and affirmed the decision of the delegate of the respondent. In my opinion this application should be allowed and the decision of the Tribunal set aside. As the facts are not in dispute, and as the outcome of the respondent’s claim for a service pension turns wholly on the proper interpretation of s 7A(1A) of the Act, it would be pointless to remit the matter to the Tribunal to be decided according to law as there is only one possible outcome: see Harradine v Secretary, Department of Social Security (1989) 87 ALR 305. The order of the Court should affirm the decision of the delegate of the applicant that the respondent did not render qualifying service within the terms of s 7A of the Act.

6. In accordance with the agreement of the parties each party will bear its or his own costs of the application. 

I certify that the preceding twenty-five
numbered paragraphs are a true copy of the
Reasons for Judgment herein of the
Honourable Justice von Doussa.

Associate:

Dated:

Counsel for the Applicant:  Miss E Ford

Solicitors for the Applicant:  Australian Government Solicitor

Counsel for the Respondent:  Mr P McNab

Solicitors for the Respondent:  Bill Piper

Date of Hearing:  12 September 2001

Date of Judgment:  15 October 2001