Repatriation Commission v Doessel, I.F
[1990] FCA 205
•04 MAY 1990
Re: REPATRIATION COMMISSION
And: IAN FRANCIS DOESSEL
No. QLD G139 of 1989
FED No. 205
Veterans' Affairs - Words and Phrases
(1990) 95 ALR 590
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Veterans' Affairs - disability pension - allotted for duty in an operational area - whether element of danger necessary - legislative history - internal memorandum.
Words and Phrases - "allotted for duty" - "in accordance with administrative arrangements applicable".
Veterans' Entitlements Act 1986 ss. 13(1); 6(1)(e); 6(1)(e)(ii); 5(12).
Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 s. 19.
Administrative Appeals Tribunal Act 1975 s. 44(1).
Australian Soldiers' Repatriation Act 1950.
Repatriation (Far-East Strategic Reserve) Act 1956.
Repatriation (Special Overseas Service) Act 1962.
Repatriation Act 1920.
Repatriation Commission v. Albert Thomas Davis, unreported, Federal Court of Australia, 9 March 1990.
HEARING
BRISBANE
#DATE 4:5:1990
Counsel for applicant: Mr. J. Logan
instructed by: Australian Government Solicitor
Counsel for respondent: Mr. T. North
instructed by: Cannan and Peterson
ORDER
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal constituted by Deputy President D. P. Breen, Mr. D. W. Muller, senior member, and Brigadier T. R. Gibson, member. The Tribunal decided on 22 November 1989 to affirm the decisions under review and to remit the matter to the Commission for consideration in accordance with the Tribunal's finding that the respondent, Mr. Ian Francis Doessel, had rendered "eligible war service" within the meaning of that term in the Veterans' Entitlements Act 1986 ("VEA"). Such an appeal, pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975, is an exercise of the original jurisdiction of the Court.
I am aware that the question involved in this appeal overlaps with a decision by French J. in the Federal Court in Western Australia in Repatriation Commission v. Albert Thomas Davis, an unreported judgment of 9 March 1990. An appeal from that decision of French J. to the Full Court of the Federal Court is pending. I nevertheless intend to proceed with the hearing of this matter. The next sittings of the Federal Court is not to be held in Perth until the end of October whereas a Full Federal Court sittings is scheduled for Brisbane at the end of July. In addition, there are factual differences between the two matters. In all the circumstances, I consider it appropriate that an appeal court at least have whatever benefit there may be in my findings in relation to the proceedings involving Mr. Doessel. If any appeal in respect of my decision is to be taken it may be appropriate, for reasons of convenience and efficiency, that the appeals in the two matters be heard at the same time.
So far as these proceedings are concerned, Mr. Doessel served in the Royal Australian Navy from 22 May 1959 until his discharge on 21 May 1971. While he was in the Navy, he was injured in a car collision on 22 May 1970, and it was subsequently determined that he was "quite unfit for further service in the R.A.N." On 25 February 1985 he made a claim for medical treatment and pension in respect of a number of disabilities and on 3 April 1985 a delegate of the Repatriation Commission determined that Mr. Doessel did not qualify for the payment of medical treatment or pension because he did not have "eligible service" under the then existing Repatriation legislation. On 16 September 1985 he made a second informal claim to include further disabilities in his claim for medical treatment and pension. Then again on 16 January 1987 he made a further claim for medical treatment and pension for further disabilities. On 20 February 1987 a delegate of the Repatriation Commission determined that Mr. Doessel was not eligible to claim for benefits under the VEA because he had not rendered eligible war service, defence service or peace-keeping service as defined in the Act.
On 29 May 1985 the respondent sought a review by the Veterans' Review Board of the decision of the Repatriation Commission on 3 April 1985. By an application dated 9 March 1987 he sought a review by the Veterans' Review Board of the decision on 20 February 1987. The Veterans' Review Board heard both applications together on 15 October 1987 and decided the matter on 15 December 1987. The decision of the Board was:
"...that the veteran had the periods of eligible
service listed in the accompanying reasons for
decision. The applications for pension are accordingly
remitted to the Repatriation Commission for further
consideration."
The Repatriation Commission then sought a review of that decision by the Administrative Appeals Tribunal, and the Tribunal affirmed the decision under review.It is not disputed that the effect of s. 19 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, so far as Mr. Doessel is concerned, is that his case is now to be determined in accordance with the provisions of the VEA. While it will be necessary to set out extremely lengthy statutory provisions, the core question is a simple one: whether, pursuant to s. 6(1)(e) of the Act, Mr. Doessel was a person who as a member of the defence force rendered continuous full time service outside Australia, either as a member of a unit of the defence force that was allotted for duty or while allotted for duty in an operational area. If that is so, he is to be taken as having rendered operational service while he was so rendering continuous full time service. By s. 5(12) the question of being allotted for duty in an operational area shall be relevantly read as a reference to "...a person or a unit of the Defence Force 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;...". The meaning to be attributed to these words in s. 5(12) is the primary question here.
The Tribunal's view seems to me to be that there was no requirement that the person or unit be "allotted for special duty" as had been contended for by the representative of the Commission before the Tribunal. The term "allotted for special duty" had appeared in legislation prior to the VEA. The Tribunal took the unexceptional view that there was no basis for interpolating upon a statute words which it did not contain. It appears to consider that "allotted for duty" was equivalent to being directed to serve or having been posted to serve in an operational area either as an individual or as a member of a unit.
The applicable statutory provisions are set out below.
Section 13(1) of the Act relevantly provides:
Where -
...
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to this Act, liable to pay -
...
(d) in the case of the incapacity of the veteran - pension to the veteran, in accordance with this Act."
The terms "war-caused injury", "war-caused disease" and "veteran" are then defined in the Act. With respect to the first two terms, s. 9(1)(a),(b) and (e) provides as follows:
"9. (1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if -
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...
(e) the injury suffered, or disease contracted, by the veteran -
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease, but not otherwise."
"Veteran" is defined in s. 5(1) of the Act in these terms:
" 'veteran' means -
(a) a person (including a deceased person) who is, by virtue of s. 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-section 13(6);"
Section 7(1) then provides:
"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;
(b) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War I shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service."
I refer in this context to those who served in the First World War to illustrate that the Act draws a distinction between the rendering of continuous full-time service and operational service. See also s.6(1)(a) which provides:
"For the purposes of this Act -
(a) a person who has rendered, as a member of the Defence Force, continuous full-tine service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;"
Of primary importance to this appeal are the provisions of s.6(1)(e)(i) and (ii) and of s. 5(12):
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"6. (1)
...
(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."
I note and consider it important that s.6(1)(e)(ii) commences with the word "while". That ultimately becomes an important consideration because it is inconsistent with the view, as contended for by the Commission, that a person is rendering operational service only if in fact an allotment for duty occurs after the continuous full-time service in question. In my view, for the application of this provision, there has to be a contemporaneity between the rendering of continuous full-time service and the person rendering the service having been allotted for duty. This makes it impossible, in my view, sensibly to interpret the words "allotted for duty" as referring to some administrative conduct by some person subsequent to the service sought to be characterised as operational service.
The other key provision, section 5(12), provides that:
"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."
Section 5, in terms of operational area, provides:
"(3) For the purposes of this Act - ...
(c) an operational area described in column 1 of Schedule 2 shall be deemed to have been an operational area during the period specified in column 2 of that Schedule opposite to the description of the area in column 1."
As it turns out, the operational area with which this appeal is concerned and about which there is no contest, is item 7 of Schedule 2, which in some detail refers to areas of Malaysia and Singapore and waters adjacent to those countries. The time period specified is the period from and including 31 July 1962 to and including 11 January 1973.
The statutory basis of the claim is to be found in the provisions of s. 19(2), which sets out how the Commission is to deal with claims and applications. Section 135 enables a person dissatisfied with the decision of the Commission to seek review by the Veterans' Review Board, a body established by s. 107VB of the Repatriation Act 1920, and which is continued in existence by s. 134 of the Act. On that review by the Veterans' Review Board, it can exercise the powers conferred by s. 139 and, as exercised in the present case, that of s. 139(3)(c), which permits the Board to set aside the decision under review and make a decision in substitution for the decision so set aside.
The appeal to the Administrative Appeals Tribunal is provided for in s. 175(1)(b), which provides for application to be made to the Tribunal for a review of a decision made by the Board in substitution for the decision set aside. Then s. 44 of the Administrative Appeals Tribunal Act 1975 provides for an appeal on a question of law from a decision of the Administrative Appeals Tribunal to the Federal Court.
There are other sections of the VEA to which reference ought to be made. Division 2 of Part III is concerned with eligibility for a service pension and s. 38 provides for the eligibility for a service pension to a veteran who has rendered qualifying service and who, in the case of a male veteran, has attained the age of 60 years. A service pension is to be contrasted with a disability pension which is found in Division 3 of Part II, Part II being that part of the Act concerned with pensions, other than service pensions, for veterans and their dependants. Section 6(5) provides:
"For the purposes of this Act, the operational service of a person in an operational area, being the operational service of the person described in paragraph 1(e) -
(a) shall be taken to have commenced -
(i) if the person was in Australia on the day as from which the person was allotted for duty in that area - on the day on which the person departed from the last port of call in Australia for that service; or
(ii) if the person was outside Australia, on the day as from which the person was so allotted for duty - on the day as from which the person was so allotted for duty; and
(b) shall be taken to have ended at the expiration of -
(i) if the person was allotted for duty from an operational area to another area outside Australia (not being an operational area) - on the day on which the person arrived at that other area or on the day as from which the person was allotted to that other area at a time when the person was in that other area; or
(ii) in any other case - on the day on which the person arrived at the first port of call in Australia on returning from operational service."
Attention can profitably be focused on this provision in particular. Section 6(5)(b)(i) is important because it illustrates that there is no necessary unity of concept in the phrases "allotted for duty" and "allotted for duty in an operational area". Section 6(5)(b)(i) makes it plain that a person can be allotted for duty in an area other than an operational area because it contemplates a person being allotted for duty from an operational area to another area outside of Australia which is not an operational area. This has significance in relation to the submission by the Commission that there is a flavour of danger necessarily associated with the phrase "allotted for duty"; this term being the current term used after earlier legislation had used the phrase "allotted for special duty". One can anticipate that an operational area is one involving the risk of harm, but it is not necessarily the case that a person allotted for duty in an area other than an operational area would necessarily be exposed to any degree of danger.
Further, s. 6(5)(b)(i) speaks of "allotted to that other area" and that in turn underlines the temporal association between the process of allotment and the fact of service. It is clearly predicated on the basis that allotment for duty precedes the geographical change of a person from an operational area to another area. The concept of allotment, at least in this provision, is directed to the relocation of a person from one area to another, and it is difficult to see how there can be any such allotment for duty at a time after a person has been transferred from one area to another. Section 6(6) in this context provides:
"Where a person has, in the course of rendering operational service in an operational area while a member of the Defence Force -
(a) returned to Australia in accordance with the Rest and Recuperation arrangements of the naval, military or air forces;
(b) returned to Australia on emergency or other leave granted on compassionate grounds;
(c) returned to Australia on duty; or
(d) returned to Australia for the purpose of receiving medical or surgical treatment as directed by the medical authorities of the Defence Force,
so much of the period of service of the person in Australia after his or her return and while the person -
(e) continued to be a member of a unit of the Defence Force allotted for duty in an operational area; or
(f) continued to be allotted for duty in an operational area,
as does not exceed 14 days shall, for the purpose of paragraph (1)(e), be deemed to be a period when the person was rendering continuous full-time service outside Australia."
The use of the words "continued to be allotted for duty in an operational area" underlines once again the contemporaneity of the allotment for duty and the service.
This provision also is consistent with the view that a person can continue to be a member of the defence force allotted for duty in an operational area while that person is serving in Australia.
In s. 85(9) there is a provision which gives some support to the submissions for the Commission. That sub-section provides:
"Where -
(a) a veteran, while a member of the Defence Force, rendered continuous full-time service outside Australia in the area described in item 4 or 8 of Schedule 2 (in column 1) while that area was an operational area, whether or not the veteran rendered that service -
(i) as a member of a unit of the Defence Force that was allotted for duty; or
(ii) while allotted for duty, in that area;
...
the veteran is eligible to be provided with treatment under this Part for that injury or disease - "
The words of particular significance are "whether or not the veteran rendered that service as a member of a unit of the Defence Force that was allotted for duty or while allotted for duty". The sub-section thus contemplates that, with respect to the rendering of continuous full-time service outside of Australia in the areas described in items 4 or 8 of Schedule 2, there may be a distinction between, on the one hand, veterans who rendered that service either while a member of a unit of the defence force that was allotted for duty in that area, or while allotted for duty, and, on the other hand, veterans who rendered that service other than in either of those capacities.
In the circumstances of Mr. Doessel, he was posted on two naval ships, the "H.M.A.S. Vendetta" and the "H.M.A.S. Melbourne" and there were three periods during which his service took him outside of Australian waters. The first of those periods indicates that he served on "H.M.A.S. Vendetta" in areas in Singapore, Subic Bay and Manila. In the second period on the "Vendetta" he served at various south-east Asian areas. His times of service on the "Vendetta" commenced in this period from 18 July 1963 to 12 February 1964. When he served on "H.M.A.S. Melbourne", which also sailed in south-east Asian waters, he saw service on her from 18 April 1969 for various periods ending finally on 11 October 1969. The service in the first period does not assist him because it does not include operational service due to a combination of the provisions of s. 6(1)(e)(ii) and item 3 of Schedule 2 of the Act. The period of service in respect of the second period on the "Vendetta" and his period of service on the "Melbourne" fall within Item 7 of Schedule 2 of the Act. It is a question of whether this service fits the description "a member of a unit of the Defence Force that was allotted for duty in an operational area" or "allotted for duty in an operational area".
It is plain from a letter dated 14 April 1987 from the Department of Defence Navy Office to Mr. Doessel that the "H.M.A.S. Vendetta" was attached to the Far Eastern Strategic Reserve during the period specified in that letter, which included part of the time when Mr. Doessel was a member of its crew. The respondent also points to the evidence of a naval historian, Richard Pelvin, who was asked by Brigadier Gibson:
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"For our benefit, would you describe what the role or function of the Far East Strategic Reserve was at the time, in the sixties?"
To this he responded:
"Yes, it was a time of a fair amount of tension in that area with the - around the time of the foundation of - or the setting up of Malaysia with the Indonesian attitude. The Far Eastern Strategic Reserve was there for use should the situation become in a war - become war, in effect."
He was later asked:
"When a ship was allocated on station with the Far East Strategic Reserve, did it come under control of that organisation, Far East Strategic Reserve?"
and Mr. Pelvin indicated that he believed that to be the case, although he was not entirely sure. Another part of his evidence which the Tribunal referred to in its reasons, is as follows:
"How was it determined whether or not a vessel did undertake duty in that operational area?"
Mr. Pelvin replied:
"The matter was considered in the Navy Office, a recommendation was made by the Head of the Naval Personnel Branch to the Deputy Chief Naval Staff, the 2nd Naval Commander who was the member of the Naval Board concerned with personnel, and also to the Secretary of the Department, suggesting that certain areas involved possible war-like situations, and a ship be allotted for duty in those areas for special duty."
He was then asked:
"Now, how did the information that the ship had undertaken duties in those areas come to the attention of the Navy Office?"
He replied:
"Well the Navy Office sends the ships to do certain duties, so it's not so much as coming to its attention as the Navy Office sends it there."
His evidence implies that any allotment "for duty in those areas for special duty" preceded the service of the ship in that area. However, other evidence before the Tribunal clearly negated this implication. By way of example, in respect of the service of the "Vendetta" for "special duty", a recommendation was made to the Naval Board concerning "allotments for special duty for purposes of repatriation, war service homes and tax exemption". The memorandum by the head of the Naval Personnel Branch containing this recommendation is dated 27 April 1966, and it relates to service by various vessels in periods well prior to the memorandum. There are notations which appear on that memorandum suggesting concurrence by the secretary, by the 2nd Naval member and by the Deputy Chief Naval Staff. There is a minute dated 17 May 1966 acknowledging the Naval Board's approval of the proposal submitted in that minute and paragraph 2 of that minute is in these terms:
"The periods of service of R.A.N. ships in special areas for the purpose of Repatriation and Taxation legislation are shown in the attached Schedule."
and paragraph 4 commences:
"This allotment will qualify permanently posted crew members for the following benefits...."
It then refers to repatriation entitlements, war service home benefits and entitlement to an R.A.S. badge in respect of persons who saw service in the Malay Peninsula area at times in 1964 and 1965.
Whatever be the administrative arrangements which might be shown, the evidence before the Tribunal can admit of no other conclusion but that the allotment for special duty in respect of service in the mid-1960s was made considerably subsequent to the time of the service of those vessels and their crew in those areas. However, in truth this is not an allotment for duty of either the units or the members who served on them, but in fact an ex post facto allotment for benefit. It seems to me that the substance of the Commission's submission is that this retrospective allocation of service or classification of service for the purpose of receiving entitlements is what the words 'allotted for duty' mean in the VEA. I can not agree with this. I find difficulty in equating an allotment of earlier service for the purpose of conferring benefits with an allotment for duty. I have already expressed my view that there must be some temporal element in respect of the phrase 'allotted for duty'. In further support of this, s.5(12) refers to "administrative arrangements applicable in the part of the Defence Force in which the person was serving" (my emphasis): in this case, the Navy. This seems to me to suggest that the allotment for duty has to be contemporaneous with the service.
I have been referred to a number of earlier pieces of legislation dealing with the general question of benefits to those who have served in armed forces and, in particular, have been supplied with a useful folder of relevant pieces of that legislation. It would be unnecessarily tedious to repeat the submissions made by Mr. Logan in a very detailed submission concerning the Commission's view of the interpretation of s. 5(12)(a). There are, however, just a few of those references which should be specifically referred to.
The Australian Soldiers' Repatriation Act No.34 of 1950 is the first to use the phrase 'allotted for duty'. Section 107B(1) of that Act provides:
"For the purposes of this Division, - 'commencement' means in relation to the war service of a member of the forces -
(a) where he was in Australia at the time at which he was allotted for war service - the time of his departure from the last port of call in Australia for that service; or
(b) where he was outside Australia, at the time at which he was allotted for war service - the time at which he was so allotted."
There is, of course, an identity between the time of commencement and the time of allotment.
"War Service" is also defined in s. 107B(1). It is said to mean:
" ...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."
It is difficult to avoid the similarity between these definitions and those which now appear in s. 6(1)(e) of the VEA after a chequered intermediate legislative history.
In the Repatriation (Far-East Strategic Reserve) Act No. 91 of 1956, s. 3(2)(a) provided:
"For the purposes of this Act, the Malayan service of a member of the forces shall be deemed to have commenced -
(a) if he was in Australia when he was allotted for duty of the kind referred to in paragraph (a) or (b) of the definition of 'Malayan service' in the last preceding sub-section, whichever is applicable, - at the time of his departure from the last port of call in Australia by reason of the allotment or at a time of the commencement of this Act, whichever was the later;..."
It is clear that "commencement" is not something that happens after his departure from Australia. The allotment there referred to clearly must antedate his service.
Subsequent legislation introduced the concept of "special duty" and "special service". In respect of the Repatriation (Special Overseas Service) Act No. 89 of 1962, those terms are defined in s. 3. In the second reading speech accompanying that Act, the Minister for Repatriation said:
"By 1956 the Parliament found it necessary to make appropriate provision for repatriation benefits for Australian forces serving overseas of a somewhat different character (contrasting it with the legislation relating to the First and Second World Wars). These comprised the forces serving in Malaya and Singapore as a part of, or in connection with the British Commonwealth Far East Strategic Reserve...To meet this situation the Repatriation (Far East Strategic Reserve) Act was passed in 1956.
That Act related to a specific type of service in a defined area, namely service as part of the British Commonwealth Far East Strategic Reserve in Malaya and Singapore."
And he said of the 1962 Act:
"The Bill before the House provides for the same repatriation benefits now available to Australian servicemen serving with the Far East Strategic Reserve in Malaya to be applied for service of that nature in such cases as are from time to time prescribed. The legislation will be applied immediately, by regulation, to troops in Malaya serving in forward areas and to a comparatively small group who are serving in an instructional capacity in the Republic of Vietnam and who might thereby be exposed to some risk."
The Repatriation Act 1920 as it existed, for instance in 1981, provided in s. 107B, which had been amended on a number of occasions:
"For the purposes of this Division - 'commencement' means, in relation to the war service of a member of the Forces -
(a) where he was in Australia at the time at which he was allotted for war service - the time of his departure from the last port of call for that service; or
(b) where he was outside Australia at the time at which he was allotted for war service - the time at which he was so allotted;..."
The definition of "conclusion" of the war service of a member of the Forces had a similar connotation, again highlighting the temporal element of allotment for war service.
"War service" was defined 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."
There is in the papers a useful memorandum compiled by Mr. Bruce Topperwien, an Executive Officer of the Research and Information Section of the Veterans' Review Board. There are matters in that memorandum with which I am in complete agreement. He said, in answer to a request of him for information on the use of the phrase 'allotted for duty', that that phrase was first introduced in the Australian Soldiers' Repatriation Act 1950, and the operative sections were deemed to have come into operation on 27 June 1950. In the Minister's second reading speech it was stated that:
"The Bill provides for the extension of pension and other benefits to members of the forces who served, or are serving, in Korea and Malaya."
Having referred to the definition of "member of the Forces" in the 1950 Act and various other changes that occurred in legislation subsequently, Mr. Topperwien said:
"As 'allotment' was not a term used in the Defence Force other than in correspondence with the Repatriation Commission and in recording details for the purpose of Repatriation legislation, the position of allotment of units to Korea and Malaya before the enactment of ss. 107A-G of the Repatriation Act is interesting. For these units, the term 'allotted' would have had an identical meaning to 'posted' and/or 'assigned' given that they were serving in Korea and Malaya before the legislation was drafted. Thus it is difficult to conceive of giving the word 'allotted' any special or technical meaning for the Korea/Malaya service under the Repatriation Act. In addition, the word 'allotted' is used in s. 107B in the definition of 'conclusion' in the context of being 'allotted from war service to an area...other than an operational area.' Thus it appears that 'allotted' is used to mean being posted or assigned to duty in any area and not just used in relation to an operational area. Therefore, there is no reason to infer, from a reading of the legislation, that the word is used in any special sense. The plain and ordinary meaning appears to be apposite, i.e. the assigning of personnel and units to duty in a particular area. There is nothing in the Act to infer that allotment means assignment to a particular type of duty in a particular area."
In respect of this analysis I am in complete agreement.
I have been referred in some detail to the reasons for judgment of French J. in Davis (supra). In particular, I have had reference to his Honour's observations on the phrase 'allotted for duty' which commence at p 17 of his reasons for judgment. His Honour said (at p 22):
"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."
I respectfully agree with this last observation. He continued:
"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-paragraph (iii) would be tautologous."
I have difficulty with this in that it is not a question of the member being 'on operational service' who is to be treated as 'allotted for duty'. 'Operational service' is service by a person who is in continuous full-time service outside Australia and who is allotted for duty in an operational area or rendered continuous full-time service outside Australia as a member of a unit of the defence force that was allotted for duty. It is tautologous to speak of operational service and allotted for duty when one is seeking to determine what constitutes 'operational service'.
His Honour at p 23 adopts the view that:
"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?'"
In my respectful view, it is not a question of levels of allotment but the existence of allotment for duty.
His Honour later indicated at p 24 that:
"The mere direction to 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."
I can not agree with the suggestion that there may be a distinction between those who are exposed or likely to be exposed to hostile action and those who are not, with only the former group capable of being allotted for duty. I have referred earlier to other sections of the Act which make it plain that it is possible for a member of the Defence Forces to be 'allotted for duty' in an area other than in an operational area. As such, this appears to negate the necessity for an element of danger or exposure to harm in that phrase.
It is also not my own view that there needs to be some sort of "special" designation or appointment of those who are allocated to operational service in an operational area as being "on duty". But, even if I am wrong in this, on the evidence in this particular case there was no such designation or appointment at a time prior to the rendering of continuous full-time service. For reasons which I have already expressed, I am of the view that the phrase 'alloted for duty' must in its temporal sense precede or be comtemporaneous with the service alleged to constitute operational service.
The ordinary meaning of "allot" according to the Shorter Oxford Dictionary is:
"allot - 1. to distribute by lot, or in such a way that the recipients have no choice; to assign shares authoritatively; to apportion;...
2. to assign as a lot or portion to; to appoint (without distribution)...hence to appropriate to a special person or purpose. 3. to appoint, destine (a person to do)."
In my opinion, the word is used in the Act in its ordinary sense to mean "posted or assigned to duty". I agree with the comment by Mr. Topperwien that:
"It would appear that allotment to duty in an operational area would include any posting or assigning to duty in an operational area. The reference to 'administrative arrangements' would appear to restrict allotment to those cases where actual orders requiring some administrative action were given, posting or assigning units to duty in an operational area."
This also gives a meaning to the words "administrative arrangements" in s. 5(12).
In this particular case, consistent with the evidence of Mr. Pelvin, the "H.M.A.S. Vendetta" was directed by the Naval Office to serve as a component of the Far Eastern Strategic Service and it did so serve. In my opinion, it was a unit of the defence force that was allotted for duty in an operational area and Mr. Doessel was a member of that unit. He therefore comes within the definition of a veteran who has seen operational service. For the reasons which I have expressed, it is my opinion that the appeal be dismissed, with costs.
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