Repatriation Commission v Davis
[1990] FCA 70
•09 MARCH 1990
Re: REPATRIATION COMMISSION
And: ALBERT THOMAS DAVIS
No. WA G130 of 1989
FED No. 70
Veterans' Affairs
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Veterans' Affairs - service pension - qualifying service - Malayan Emergency - allotted for duty in an operational area - whether ordinary English meaning or special meaning - legislative history - extrinsic materials - explanatory memorandum - Second Reading Speeches - ordinary meaning - question of fact - incorrect construction by Tribunal - correct factual result.
Words and Phrases - "allotted for duty" - "in accordance with administrative arrangements applicable".
Veterans' Entitlements Act 1986 sub-s.43(6), s.35, s.36
Administrative Appeals Tribunal Act 1975 sub-s.44(1)
The Australian Soldiers Repatriation Act 1950
Australian Soldiers Repatriation Act 1920-1950
Repatriation (Far East Strategic Reserve) Act 1956
Repatriation Act 1920
Repatriation (Special Overseas Service) Act 1962
Acts Interpretation Act 1901 s.15AB
Maunsell v Olins (1975) AC 373
HEARING
PERTH
#DATE 9:3:1990
Counsel for the Appellant: Mr M.D. O'Sullivan
Solicitors for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr G. O'Hara
Solicitors for the Respondent: Kott Gunning
ORDER
The appeal is dismissed.
The appellant is to pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction
In 1956 and 1957 Albert Thomas Davis was a signalman serving on the Royal Australian Navy Frigate HMAS Queenborough assigned to a joint British Commonwealth force combatting terrorist activities during the Malayan Emergency. On 22 January 1957 his ship shelled a terrorist camp in South East Johore. According to the Repatriation Commission, Mr Davis does not qualify for a service pension because, although he 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 Veterans' Entitlements Act 1986. The Administrative Appeals Tribunal has held that Mr Davis is so entitled and the Commission now appeals from that decision on the question whether the Tribunal has rightly construed the Act.
Factual History
Albert Thomas Davis enlisted in the Royal Australian Navy on 18 March 1954 at the age of 16 for a period of six years. He was discharged on 5 May 1961 after the expiry of his engagement having reached the rank of Leading Tactical Operator. During his service he was posted to depots within Australia and to service on the frigates HMAS Queenborough and HMAS Quickmatch. He was posted to Queenborough from 21 April 1956 until 1 September 1957. During that time, from 21 June 1957 to 26 July 1957, he was transferred to Quickmatch. Both Queenborough and Quickmatch were assigned for service with the Far East Strategic Reserve, a British Commonwealth Force formed to assist in combatting communist insurgency during the Malayan Emergency.
A report of the activities of HMAS Queenborough in the month of January 1957 was prepared by its Commanding Officer and submitted to the Flag Officer, Second in Command, Far East Station Hong Kong. Much of the report related to various naval training exercises and on shore social and sporting activities. However, the report discloses that on 22 January the following occurred:
"An operational bombardment of terrorist camps in SE Jahore was carried out at SE Jahore XX by both frigates, 40 rounds of XXXX per ship being fired. Although the camp appeared empty to the XXXXX XXXXX XX it was damaged and it is unlikely that it will be used again for sometime. This has already been reported to Admiralty XXXXX XX. (sic)"
The crosses in the typed report contained in the appeal book presumably indicated illegible handwriting which could not be transcribed from the original. A corresponding report for Quickmatch was as follows:
"On Tuesday 22 January "Quickmatch" in company with "Queenborough" carried out 4" bombardment of suspected Communist Terrorist position on the West coast of Johore. The ship anchored off Tahjong Siang at 1445 GH and between 1500 GH and 1615 GH four rounds of space inches were fired at a Coco-nut Grove believed to be a source of C.T. Supplies, and at a wooden bridge close by. An Army Muster co-operated and spotted XXXX or shot for both ships. Radio Australia broadcast the press release the following morning as Item 2."
Thirty years later on 4 March 1987, Mr Davis who was then living at Capel in Western Australia wrote to the Department of Veterans' Affairs setting out in summary his service history and requesting advice of any benefits for which he might be eligible by reason of that service. He was sent a form to complete which was an application under sub-s.43(6) of the Veterans' Entitlements Act 1986 for a decision that he had rendered qualifying service for the purpose of entitlement to service pension. Accompanying that form was a questionnaire. He completed both and returned them. In answer to the question whether he had served outside Australia or its waters he wrote "Yes Far East Strategic Reserve 1956-57 HMAS Queenborough". He also indicated that he had not been subjected to hostile enemy action and had not been awarded and was not eligible for any campaign medals or stars.
On 9 June he was sent a letter from the Department of Veterans' Affairs advising that as he did not at any time serve in an area where he had incurred danger from hostile enemy forces he had not rendered qualifying service as defined in s.35 of the Veterans' Entitlements Act and his "application for service pension" was therefore declined. On 29 June 1987 he wrote back to the Department asking that the decision of which he had been advised be reviewed by a Senior Delegate of the Repatriation Commission.
On 14 October 1987 a representative of the Commission wrote to the Director of Naval Personnel Services asking whether there was any record of Davis having been "allotted for duty" in an "operational area" as defined in Schedule 2 to the Veterans' Entitlements Act. It also asked whether or not as a result of his service he had become eligible for the award of a British General Service Medal with Malaya clasp. On 2 December 1987 the Department of Defence replied saying that Davis did not qualify for the medal with Malaya clasp. The qualification for that award was 28 days service afloat off the Malaya coast between 16 June 1948 and 31 July 1960 in ships or aircraft patrolling in support of operations against bandits. Alternatively service of one day or more between 16 June 1948 and 31 July 1960 and duty in the Federation of Malaya while employed as an integral part of the Security Forces would also qualify. The letter went on:
"None of the ships which proceeded to the British Commonwealth Strategic Reserve Far East Station between 1 June 1955 and 31 July 1960 had service qualifying for the Naval General Service Medal and Clasp Malaya."
On 18 January the Commission wrote to the Navy Office of the Department of Defence renewing its inquiry as to whether Davis was allotted for duty in an operational area as defined in Schedule 2 to the Act. In response it received a letter dated 23 January 1988 which referred to Davis' service on Queenborough and Quickmatch and the fact that they had been deployed as units of the British Commonwealth Far East Strategic Reserve for the periods 26 September 1956 to 20 June 1957 and 21 June 1957 to 25 June 1957 respectively. The letter went on:
"2. The above deployments of HMAS QUEENBOROUGH and QUICKMATCH are not recognised as allotted or operational service, although it is recognised by the Defence Service Homes Corporation for the purposes of Defence Service Home Loans.
3. It is confirmed therefore that LTO DAVIS was not allotted for duty in an operational area for purpose of repatriation benefits."
Accordingly on 16 February 1988 a Senior Delegate of the Commission wrote to Davis indicating that it had upheld the original determination that he had not rendered qualifying service as defined by s.36 of the Veterans' Entitlements Act. A copy of the Senior Delegate's determination and statement of reasons was enclosed. As indicated in the statement of reasons the terms of the advice letter sent to Davis originally was incorrect. The relevant sections of the Act relating to qualifying service were those contained in ss.36(1)(a)(iii) and (iv). The delegate concluded on the basis of the correspondence with the Department of Defence that Mr Davis had not been allotted for duty in an operational area within the meaning of s.36. In the absence of any other qualifying condition he had not rendered qualifying service as defined in s.36 of the Act.
Davis appealed from the delegate's decision to the Administrative Appeals Tribunal. His solicitors sought further information from the Department of Defence which reaffirmed that his service with the Far Eastern Strategic Reserve was not qualifying service under the Veterans' Entitlements Act 1986. A further letter dated 26 July 1989, which was the date of the Tribunal hearing, advised:
"HMAS QUEENBOROUGH was not allotted for duty in accordance with the V.E. Act and as stated previously your clients service is not qualifying service under the V.E. Act.
The bombardment by HMAS QUEENBOROUGH was, as you state, in support of the British, the Admiralty referred to is the British Admiralty and as "ACMC" is not an official Australian acronym I assume that it refers to the local British Command."
In the event the Tribunal set aside the decision under review and remitted the matter to the Commission with a direction that Davis had rendered qualifying service under s.36(1)(a)(iii) of the Veterans' Entitlement Act.
Statutory Framework
Part III of the Veterans' Entitlements Act 1986 which comprises ss.35 to 67 inclusive, makes provision for the payment of service pensions to male and female veterans and the wives of male veterans. Basic eligibility is established by s.38 which provides in the relevant parts:
"38(1) Subject to this Act, a veteran who has rendered qualifying service and has attained the age of -
(a) in the case of a male veteran - 60 years; or
(b) in the case of a female veteran - 55 years, is eligible to receive a service pension under this Part."
Eligibility independent of age for invalid veterans is established in similar terms by sub-s.39(1). Necessary conditions of eligibility under each section are that the claimant for pension should:
(a) be a veteran;
(b) have rendered qualifying service.
A "veteran" is defined in two alternative ways in s.5, only the first of which is relevant for present purposes:
""Veteran" means -
(a) a person (including a deceased person) who is, by virtue of section 7, to be taken to have rendered eligible war service; or
(b) a person (including a deceased person) in respect of whom a pension is, or pensions are payable in pursuance of sub-s.13(6)."
Section 7 defines eligible war service by reference to operational service and the relevant portion (after excluding those parts of the section that relate to World Wars 1 and 2) provides:
"7(1) Subject to sub-section (2), for the purposes of this Act -
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;"
Section 6 relates to "operational service" which is defined variously by reference to service during World Wars 1 and 2 and also provides in para.6(1)(e):
"6(1) For the purposes of this Act - .
.
.
(e) a person who has, as a member of the Defence Force, rendered continuous full-time service outside Australia -
(i) as a member of a unit of the Defence Force that was allotted for duty; or
(ii) while the person was allotted for duty, in an operational area (not being service rendered, as a member of the Naval Forces in the complement of a sea-going vessel, in the area described in item 3 of Schedule 2 (in column 1) while that area was an operational area), shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;"
The exclusion in parenthesis is of service between 1 September 1957 and 26 May 1963 in the area comprising the territories of the countries then known as the Federation of Malaya and the Colony of Singapore respectively. The exclusion does not apply to the present case which falls within item 2 of Schedule 2.
There was no dispute that Davis is a veteran for the purpose of entitlement to a service pension, even though in this case that status appears to require that he was "allotted for duty" in an operational area for the purposes of para.6(1)(e).
Sub-section 6(4) refers to the phrase "operational service of a person in an operational area" and provides:
"6(4) In this Act, a reference to the operational service of a person in an operational area shall be read as a reference to the operational service that the person is to be taken to have rendered by virtue of paragraph 1(e) or (g), as the case requires."
Sub-section 36(1) sets out the various classes of service that amount to qualifying service for the purposes of s.38. The parts relevant to the appeal are as follows:
"36(1) For the purposes of this Part, a person has rendered qualifying service -
(a) if the person has, as a member of the Defence Force -
.
.
.
(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;"
Item 2 of Schedule 2 refers to an operational area defined as "the area of Malaya, including the waters contiguous to the coast of Malaya for a distance of 18.5 kilometres seaward from the coast". The corresponding period designated in column 2 runs from and including 29 June 1950 to and including 31 August 1957. It is not in dispute that on 22 January 1957 HMAS Queenborough was operating in that area.
The term "allotted for duty" is defined in sub-s.5(12):
"5(12) 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."
And sub-s.43(6) provides for a veteran to make a claim that he has rendered qualifying service:
"43(6) A veteran may, instead of making a claim for a service pension, make a claim for a decision that the veteran has rendered qualifying service and, if a veteran does so -
(a) subject to paragraph (aa) the claim shall be made, dealt with and determined under this Act in like manner as a claim for a service pension is required to be made, dealt with and determined;
.
.
.
(b) a decision that the veteran has not rendered qualifying service is subject to review as if it were such a decision given in the course of determining a claim for a service pension; and
(c) a decision of the Commission or the Administrative Appeals Tribunal that the veteran has rendered qualifying service is, for all purposes of this Act, evidence that the veteran had rendered qualifying service."
Paragraph 43(6)(a) applies to the determination of a claim that a veteran has rendered qualifying service, the provisions of the Act relating to the investigation and determination of claims for service pensions. One of these is s.44 which requires the Secretary of the Department to cause an investigation to be made of matters to which the claim relates and upon completion of the investigation to cause the claim to be submitted to the Commission for its consideration and determination. In so submitting the claim, the Secretary is required to transmit evidence furnished by the claimant in support of the claim and relevant documents under the control of the Department, including relevant evidence or documents obtained in the course of the investigation of the claim. Section 45 then provides:
"It is the duty of the Commission in considering a claim for a service pension, a wife's service pension or a carer's service pension submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim."
Section 59 provides for a dissatisfied claimant to seek from the Commission a review of its decision by the Commission or some delegate, other than the delegate who made the original decision.
Section 119 requires that in considering, hearing or determining and in making a decision in relation to a claim or application the Commission shall, inter alia, "act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities". (para.119(1)(g)). A further duty is cast on the Commission by para.119(1)(h):
"(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable
to -
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by sub-section 68(1), was not reported to the appropriate authorities."
Section 120 makes provision for the standard of proof to be applied in various classes of decision that the Commission is required to make and relevantly for present purposes sub-s.(4) says:
"120(4) Except in making a determination to which sub-section (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the Regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."
And in sub-s.(5):
"120(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that - .
.
.
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act."
Sub-section 120(6) qualifies what goes before:
"120(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on -
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application,
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."
It is of importance to note that the performance of the Secretary's duty to investigate claims is aided in s.128 by a wide power to require the provision of information from any person, including employees of Commonwealth, State and Territory governments and authorities.
The present matter was before the Administrative Appeals Tribunal pursuant to sub-s.175(2) of the Act:
"175(2) Where the Commission, under section 59, affirms a decision of the Commission made under section 46, 53, or 58 or sets aside a decision made under section 46, 53 or 58 and substitutes another decision for it, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review -
(a) of the decision so affirmed; or
(b) of the decision made by the Commission under section 59 in substitution for the decision previously made by the Commission under section 46, 53 or 58."
This appeal comes to the Court from the Tribunal by virtue of sub-s.44(1) of the Administrative Appeals Tribunal Act 1975:
"A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law from any decision of the Tribunal in that proceeding."
The Tribunal's Decision
Having referred to the facts which were not in dispute, the Tribunal considered the contention that Davis had rendered qualifying service under s.36(1)(a)(iii)(A) of the Veterans' Entitlements Act 1986. It was common ground that he had served in an operational area. The only question was whether at the time of his service on Queenborough he had been allotted for duty within the meaning of the Act. And although this issue was addressed in relation to the question whether Davis had rendered qualifying service, it would also appear to have been relevant to his status as a veteran.
The Tribunal referred to sub-s.5(12) of the Act which it approached as a definition of the compendious phrase "allotted for duty in an operational area". It decided that the word "allotted" bore its ordinary English meaning:
"distribute by lot or in such a way that the recipients have no choice...to appoint."
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."
The Grounds of Appeal
By its appeal to this Court, the Commission identifies as the relevant questions of law:
(a) The proper construction of sub-ss.36(1)(a)(iii) and 5(12) of the Act.
(b) Whether the phrase "allotted for duty" as used in sub-ss.36(1)(a)(iii) and 5(12) of the Act had acquired a meaning other than its ordinary English meaning.
(c) Whether the Tribunal erred in law in failing to consider a meaning of the phrase "allotted for duty" as used in sub-ss.36(1)(a)(iii) and 5(12) of the Act other than its ordinary English meaning.
In its grounds of appeal the Commission asserts that the Tribunal erred in law in relying on ordinary English usage in interpreting the meaning of "allotted for duty" in the two sections mentioned and erred in concluding that Davis had been "allotted for duty" pursuant to their provisions. The Tribunal should have held, it is contended, that the expression "allotted for duty" in ss.36(1)(a)(iii) and 5(12) of the Act:
(i) meant allotted for duty in accordance with administrative practices in existence in the Department of Defence;
(ii) was not an expression to be construed according to the ordinary meaning of the words;
Further it is said that the Tribunal should have held that the phrase "administrative arrangements" in sub-s.5(12):
(i) meant particular administrative arrangements in existence in the Department of Defence whereby a person was allotted for duty;
(ii) was not an expression simply to be construed according to the ordinary and natural meaning of the words.
Allotted for Duty
The phrase "allotted for duty" made its earliest appearance in Australian repatriation benefits legislation in 1950. The Australian Soldiers Repatriation Act 1950 which was enacted to amend the Australian Soldiers Repatriation Act 1920-1950, introduced into Part III of that Act dealing with pensions, a new Division 8 entitled "Extensions of Application of Provisions of Divisions 1 to 5 to Certain Male Members of the Forces (Korea and Malaya Operations)". Division 8 comprised ss.107A to 107D. A new Division 9 was enacted in relation to female members of the Forces. Section 107A extended the operation of the existing provisions of Part III to "members of the Forces within the meaning of the Division who are males". By s.107B the term "member of the Forces" was defined as "a member of the Naval, Military or Air Forces of the Commonwealth who served on war service". "War service" was defined in the same section as:
""war service" means, in relation to a member of the Forces, his service while -
(a) a member of, or attached to, a body, contingent or detachment of the Naval, Military or Air Forces of the Commonwealth that was allotted for duty in an operational area; or
(b) allotted for duty in an operational area, from the time of its commencement to the time of its conclusion." (emphasis added)
Operational area was defined in geographical terms which included prescribed parts of Malaya after 28 June 1950.
In 1956 the Repatriation (Far East Strategic Reserve) Act 1956 was enacted and by s.5 excluded the application of Divisions 8 and 9 of the Repatriation Act 1920 (as the Principal Act had now become) to members of the Forces in respect of Malaya service. It went on to make special provision for that class of person defining Malayan service as:
""Malayan service" means, in relation to a member of the Forces, the service of the member, after the commencement of this Act, while -
(a) a member of, or attached to, a body, unit or detachment of the Naval, Military or Air Forces at a time when it was allotted for duty in Malaya as part of, or in association with, the Australian Contingent, British Commonwealth Far East Strategic Reserve; or
(b) allotted for duty in Malaya, in connexion with the Far East Strategic Reserve, with any Naval, Military or Air Forces of a part of the Queen's dominions other than the Commonwealth, but does not include service as a member of the Naval Forces in the complement of a sea-going vessel;"
And later in the Repatriation (Special Overseas Service) Act 1962 "special service" was defined in terms of service by a person as a member of the Forces when "allotted for special duty in a special area" (s.3).
In an explanatory memorandum circulated with the Veterans' Entitlements Bill in 1985, the definition of qualifying service in the proposed s.36 was explained as service:
"...in an area specified in Schedule 2 to the Bill - i.e. Korea, Malaya (up to 31 August 1957) and Vietnam where the person was allotted for duty or was a member of a unit allotted for duty;"
That some special significance attached to the concept of allotment for duty was apparent from remarks made by the Minister introducing the Veterans' Entitlement Bill into the House of Representatives in the course of the Second Reading Speech on 16 October 1985 where he announced that repatriation coverage under the Bill would be extended to some previously excluded groups of service personnel who served in the Vietnam war:
"This will be done by treating these personnel under the VEB as having been allotted for such service. This meets the long-standing concerns of some Defence Force personnel, such as those who made trips to Vietnam on HMAS Sydney, that they were being denied legitimate entitlements under the repatriation system."
The Minister for Defence in a speech in the House of Representatives on 12 November 1985 in the course of the Second Reading debate, spoke of the anomalies that arose from the application of existing legislation to soldiers allotted for special duty in Vietnam while sailors involved in overlapping service were not so covered. He went on to indicate that all Australian service personnel in fulltime service in Vietnam who served in any capacity in the declared special area betweeen 31 July 1962 and 11 January 1973 would be "deemed to have been allotted for special service".
Sub-section 5(12) defining "allotted for duty in an operational area" introduced by amendment in the course of debate, was referred to in Explanatory Notes circulated by the Minister for Veterans' Affairs in 1986. The purpose of the amendment, it was said, was to extend the range of persons or units given repatriation coverage beyond that given by the Repatriation (Special Overseas Services) Act 1962:
"It will give legislative effect to the announcement by the Minister for Defence in the Parliament on 12 November 1985 that all Australian Defence Force personnel who served on continuous full-time service in the special area of Vietnam's land and waters between 31 July 1962 and 11 January 1973 would be deemed, by administrative action, to have been allotted for service for the purpose of the Veterans' Entitlements Act."
Presumably the reference to allotment deemed by "administrative action" is a reference to para.5(12)(b). The explanatory note went on:
"The amendment provides that a person or a unit of the Defence Force shall be taken to have been allotted for duty in an operational area where that allotment was made by administrative action at the time of undertaking such duty or where a person or unit is deemed to have been so allotted by an instrument in writing by the Minister for Defence."
These extracts tend to support the contention that the process of allotment for duty had reference to some administrative procedure to be distinguished from merely directing a person or unit to serve in an operational area. They may go so far as to support a usage of "allotted for duty" which reflects a procedure for the designation of certain operational service, the purpose of which is to entitle the persons rendering such service to repatriation benefits. But they are in the end somewhat fragmentary and incomplete, assuming some background understanding of the administrative process underlying allotment for duty which is not disclosed.
The highest use to which such material can be put is as set out in s.15AB of the Acts Interpretation Act which provides in sub-s.(1):
"15AB(1) Subject to sub-section (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when -
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable."
Sub-section (2) sets out in a non-exhaustive fashion material that may be taken into account and in sub-s.(3) it is provided:
"(3) In determining whether consideration should be given to any material in accordance with sub-section (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to -
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage."
It is necessary against that background and the provisions of s.15AB to consider the meaning of "allotted for duty" in its statutory context.
The phrase must be read in its statutory context to identify its proper function in the regulation of eligibility for service pensions. The Commission contends that mere service with the Defence Forces in an operational area during a period specified under Schedule 2 is not enough to support the inference that the person so serving had been "allotted for duty". If such service were enough, the phrase would be unnecessary. The structure of the section and extrinsic materials apart, the notion that a person engaged with the Defence Forces in an operational area has not been allotted for duty at first blush challenges common sense. There is nevertheless weight in the proposition that if a member on operational service were always to be treated by reason of that fact as "allotted for duty" the presence of that phrase in sub-para.(iii) would be tautologous. And in support of the Commission's view the provisions of sub-s.5(12) can be invoked which require references in the Act to allotment of a person for duty in an operational area to be taken as allotment 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;". The definition invites the question whether allotment for duty could occur otherwise than in accordance with some such administrative arrangements. And the answer put is not any administrative arrangements but particular administrative arrangements. The argument leads on in the Commission's submission to a construction of "allotted for duty" according to some special or technical usage, no clear definition of which was available. It would have to be a matter of evidence in each case. The result is a statutory version of Kafka's Castle, passable only with a key to undefined levels of special meaning which may vary from case to case.
In my opinion, it is neither necessary nor desirable to go down that path when the policy disclosed by the statutory context, the legislative history and the extrinsic materials in question can adequately be recognised within the framework of the ordinary English meaning of the term "allotted for duty". For acceptance of the proposition that "allotted for duty" bears its ordinary meaning of direction or appointment only answers part of the question of its proper construction. Soldiers or sailors may be allotted for duty at levels ranging from the digging of latrines or cleaning of decks, to the command of an army or of a naval task force. The other part of the question of construction is - what level of allotment for duty does the Act contemplate? It must, in the present context, relate to, although it is not necessarily to be identified with, allocation to a particular operational area. The mere direction to so serve may be allotment for duty in the relevant sense. Or there may be some division of units or personnel in an operational area between those allotted for duty and those not, because, for example, the latter are not exposed or likely to be exposed to hostile action. The allotment for duty contemplated is that which designates or appoints as "on duty" those who are allocated to operational service in an operational area. Where no such designation or appointment is shown, the fact of allocation to service in the operational area will suffice to answer the statutory description.
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". It may be accepted that the effect of sub-s.120(6) is that there is no onus on the Commission to prove any matter relevant to the determination of qualifying service. On the other hand the fact that it has access indirectly to the fruits of the wide investigative powers invested in the Secretary by s.128, may strengthen the inference from the absence of evidence of any special allotment procedure that appointment for service in an operational area reflected an allotment for duty in the sense contemplated by the Act.
The drafting of the legislation is such that no completely logically satisfying construction is available. The best that can be achieved in the circumstances is a compromise between logic and policy. And in discharging that function the Court carries out what I think is its duty as enunciated by Lord Simon of Glaisdale in Maunsell v Olins (1975) AC 373 at 391:
"Statutory language like all language is capable of an almost infinite gradation of "register", - i.e., it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interprete the statutory language as to give it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances."
It follows, for the reasons outlined above, that the Tribunal erred in its construction of s.36 in so far as it suggested that mere proof of service in an operational area and the absence of any right to chose whether to participate in the operation in question necessarily establishes that there was an allotment for duty. However, taking what I think to be the preferred construction, in the absence of evidence of any special allotment process in the area in question, the factual finding is justified that, having regard to his operational service, Mr Davis had been allotted for duty at the relevant time. No useful purpose therefore would be served by remitting the matter to the Tribunal for reconsideration.
Should the Commission wish to secure a different result in future appeals before the Tribunal it may be necessary for it to bring evidence of the existence and application of some allotment procedure. In the long term a better solution may be to amend the Act to identify the allotment process with greater precision than is the case at present. The appeal will be dismissed with costs.
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