Stanbury and Repatriation Commission (Veterans' entitlements)

[2020] AATA 285

Stanbury and Repatriation Commission (Veterans' entitlements) [2020] AATA 285 (24 February 2020)

Division:                  VETERANS’ APPEALS DIVISION

File Number(s):      2017/6186

Re:Sydney Stanbury

APPLICANT

Repatriation Commission And  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:24 February 2020

Place:Brisbane

The decision under review made on 29 June 2017 is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the finding that the Applicant rendered British nuclear test defence service.

....................................[SGD].........................................

Senior Member Katter

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 – disability pension – member of the Forces – British nuclear test defence service – decision under review set aside and remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

REASONS FOR DECISION

Senior Member Katter

24 February 2020

INTRODUCTION

1. This is an application to review the decision of the Respondent, refusing a claim for a pension by the Applicant as to British nuclear test defence service.

   FACTUAL BACKGROUND

2. Mr Sydney Stanbury served in the Royal Australian Air Force from 23 January 1956[1] to 22 January 1968[2]. 

   [1]           Exhibit 1, T Documents, T12, page 50.

   [2]           Exhibit 1, T Documents, T12, page 50.

3. By a claim form dated 18 December 2015[3], as received by the Respondent on 23 December 2015[4], the Applicant claimed a disability pension.  At part E of the claim form dated 18 December 2015[5], the Applicant stated as to the new disabilities claimed as war or defence served[6]:

   “Disability …  the fracture of the left wrist from fall from ladder

   Signs and symptoms … fracture of the left wrist and weakness in left arm.

   How do you believe your service caused, contributed to, or aggravated this          disability?

   Falling from ladder on refuelling tanker during refuelling of British Aircraft at           RAAF Base Edinburgh during British Nuclear Tests in Australia, 1964 and            1965. …

   Disability … Nuclear Sclerotic Cataract Changes.

   Signs and symptoms … Bilateral Cortical and Nuclear Sclerotic Cataracts         due from exposure to direct sunlight.

   How do you believe your service caused, contributed to, or aggravated this          disability?

   Long periods of time awaiting the arrival of aircraft from Maralinga, spent on          the tarmac at RAAF Edinburgh during the hot months of 1964 and 1965.”

   [3]           Exhibit 1, T Documents, T14, page 64.

   [4]           Exhibit 1, T Documents, T16, page 66.

   [5]           Exhibit 1, T Documents, T14, page 64.

   [6]           Exhibit 1, T Documents, T14, pages 56 and 58.

4. On 27 January 2016 a delegate of the Respondent decided that the Applicant was not entitled to claim a pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) because the Applicant was not a member of the Forces as defined in the Act[7].  The reasons for the decision dated 27 January 2016 stated[8]:

   [7]           Exhibit 1, T Documents, T16, page 67.

   [8]           Exhibit 1, T Documents, T16, pages 66 and 67.

   “[The Act] provides for pensions to be paid to people who meet the            definition of a “member of the Forces”.

   A “member of the Forces” is described in section 69 of the Act as a person who has completed 3 years’ continuous effective full-time service as a member of the Defence Forces on or after 7 December 1972 and before 7 April 1994.

   A person who has not completed 3 years’ effective full-time service can still          qualify as a “member of the Forces” if:

   1)        The person was engaged to serve for three years or more and the   service was ended because of the person’s death or the person   was discharged on medical grounds (with some limitations)

   2)        The person has rendered “hazardous service”

   3)        The person was a national serviceman and completed the term of   engagement. …

   Your service records show that you served from 22 January 1956 to 22 January 1968. As you did not serve after 6 December 1972 you do not qualify as a “member of the Forces”.”

5. On 7 March 2016 the Applicant requested a review of the decision dated 27 January 2016, as received by the Applicant on 31 January 2016, stating the following[9]:

   “My RAAF duties in 1964, at the Edinburgh RAAF base in South Australia refuelling British (RAF) Canberra bomber aircraft arriving back at the Edinburgh base after flying into and monitoring nuclear formation clouds from the H-bomb nuclear detonations in the Pacific Ocean.

   My name is listed on the … Preliminary Nominal Roll of Australian            Participants in the British Atomic Tests in Australia. In November 2011 I was informed by the Minister for Veterans’ Affairs … that my RAAF service at the Edinburgh base was under Subsection 196B(2) of the … Act including the Amendment R7/2012 that was approved in Federal Parliament during November 2011, but was not signed by the Federal Register of Legislative Instruments until January 2012.

   The Repatriation Commission delegate in Melbourne informed me that I was not entitled to claim a pension under the … Act, Subsection 196B(3) for service December 1972 and before April 1994. The delegate further stated that she had no knowledge of the British Nuclear Tests in Australia Amendment R7/2012 which covers duties with contaminated aircraft. …

   The … Government approved coverage under Subsection 196B(2) not Subsection 196B(3) for participants involved with the British Nuclear Tests in Australia. After many rejections by former RAAF personnel the Rudd Government passed the Amendment R7/2012.

   The Mr Phillip Blakey, Veterans’ Review Board, successful claim in 2011/12, at Brisbane, concerned Subsection 196B(2).”

   [9]           Exhibit 1, T Documents, T19, pages 72 and 73.

6. On 6 May 2016 the Applicant sent a letter to the Veterans’ Review Board (“the Board”) stating[10]:

   “I desire to submit some amendments for correction to my earlier claim for a disability pension. Firstly, my claim rejection on 27 January, 2016, with the decision that I was not entitled to claim a pension under the Veterans’ Entitlements Act because I was not a member of the Forces as defined in the Act. This is not correct as I was told by the Minister for Veterans’ Affairs in 2015, that my name was listed in the Nominal Roll of Australian Participants in the British Atomic Tests in Australia. The Minister also informed me that I had three periods of service with contaminated RAAF aircraft at 482 Maintenance Squadron at Amberley (June 1958 to late 1959), Base Squadron at Edinburgh, (late 1960 to late 1962) and Base Support Squadron, Amberley (late 1962 to January 1968).

   My RAAF service at Edinburgh during 1960 to 1962, as a tanker driver refuelling aircraft from Maralinga, involved falling from a ladder onto the concrete tarmac which caused my left arm to be broken. This unfortunate accident occurred at Edinburgh in 1960/1962, not in October 1965, as listed in my service records, I was not at Edinburgh in 1965. What I believe happened for the incorrect year could be that in 1965 at RAAF Amberley, I       was having trouble with weakness in my left arm and the RAP wanted some documentation with x-rays, etc.

   The delegate for the Repatriation Commission at the Melbourne office of the Department of Veterans’ Affairs received advice from the Review Officer, Mr  Ian Allison, at the Brisbane office of the DVA, that he found no evidence before him of British Nuclear Tests service, despite the Brisbane office having all the RAAF nominal rolls with putting their booklet together.

   The delegate in Melbourne, after I phoned her, told me that she had no knowledge for the amendment R7/2012 that former Prime Minister Kevin Rudd, approved for RAAF personnel at bases around Australia supporting the nuclear testing.

   Two former RAAF people, Mr Phillip Blakey and Mr Colin Bird that I worked with at Base Support Squadron, Amberley and 482 Maintenance Squadron at Amberley are listed on the nominal roll, with me, as having British Nuclear Tests service and both have won court cases and received EDA pensions.”

   [10]          Exhibit 1, T Documents, T24, pages 81 and 82.

7. The Board by letter dated 20 June 2016 communicated to the Applicant a copy of Instrument number R7/2012, which states[11]:

   [11]          Exhibit 1, T Documents, T27, pages 89 and 90.

   “VETERANS’ ENTITLEMENTS ACT 1986

   PARTICIPANTS IN BRITISH NUCLEAR TESTS

   Veterans’ Entitlements – Extension of Eligibility

   Instrument No. R7/2012

   The Repatriation Commission, pursuant to subsection 69B(6) of the Veterans’ Entitlement Act specifies, for the purposes of subsection 69B(5) of the Act, the requirements a person must satisfy in order to have rendered British Nuclear Test Defence Service as a member of the Defence Force.

   The British Nuclear Test Defence Service is covered by subsection 69B. The      subsections 5C(1) and 5C … refers to a member of the Australian Defence         Force.

   This instrument commences on the day after the day it is registered on the   Federal Register of Legislative Instruments.

   Note 1: Item 11 of Schedule 1 to the Veterans’ Affairs Legislation Amendment (Participants in British Nuclear Tests) Act 2011 provides that where the Repatriation Commission grants a claim for pension on the basis of a person’s British nuclear test defence service as established by this instrument, subsection 20(3) of the Act does not apply to the grant of the claim (Subsection 20(3) prevents backdating of the grant of pension claims before the date of eligibility for the pension).

   Note 2: Item 11 of Schedule 1 to the Veterans’ Affairs Legislation Amendment (Participants in British Nuclear Tests) Act 2011 also provides that it does not matter whether, for the purposes of the item, a claim is made before, on or after the commencement of the item.

   (1) A person has rendered British nuclear test defence service under subsection 69B(5) of the Act as a member of the Defence Force if the person satisfies the following requirements:

   (a) the person was involved in the transport, recovery,   maintenance or cleaning of an aircraft that was   contaminated as a result of its use in a nuclear test   conducted in a nuclear test area being involvement that   occurred at any time during:

   (i) if the area was the Monte Bello Islands area – the   period from the beginning of 3 October 1952 to the     end of 19 July 1956: or

   (ii) if the area was the Emu Field area – the period   from the beginning of 15 October 1953 to the end of   15 May 1956:

   (iii) if the area was the Maralinga area – the period   from the beginning of 27 September 1956 to the end   of 30 May 1963: and

   (b) the person was at the time a member of the Australian   Defence Force.

   (2) To avoid doubt, the aircraft referred to in subsection(1) does not   have to have been in the nuclear test area at the time it was   contaminated.

   (3) For the purposes of subsection(1), aircraft includes any   equipment on or attached to the aircraft.”

8. By a decision of 29 June 2017 the Board affirmed the decision under review, thereby not changing the decision of the Respondent dated 27 January 2016[12].

   [12]          Exhibit 1, T Documents, T43, page 141.

9. The Applicant applied to the Tribunal by a form dated 8 October 2017, received on 18 October 2017[13].

   [13]          Exhibit 1, T Documents, T2, pages 3 and 4.

   ISSUE

10. The issue for determination is whether the Applicant is entitled to a pension, as a member of the Forces, having rendered British nuclear test service for the purposes of section 69B of the Act[14].

    [14]          Exhibit 17, paragraph 2.

    LEGISLATIVE PROVISIONS

11. Section 5Q(1) of the Act states: "British nuclear test defence service: see subsection 68(1)”. Section 68(1) of the Act states that "British nuclear test defence service" has the meaning given by sub-sections 69B(2), (3), (4) and (5).

12. Section 69B of the Act relevantly states:

    “Application of Part to persons who rendered British nuclear test defence    service

    (1)       This Part applies to a person who has rendered British nuclear test defence   service.

    (2)       A person rendered British nuclear test defence service while the person   was a member of the Defence Force and rendered service in an area   described in the table at any time during a period described in the table for                   that area:

British nuclear test defence service in an area within a period
Item	Area	Period …
3	The area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga	The period: (a) starting at the start of 27 September 1956; and (b) ending at the end of 30 April 1965

… (5)   A person rendered British nuclear test defence service while the person   was a member of the Defence Force if the person satisfies the   requirements specified in an instrument under subsection (6).

(6)       The Commission may, by legislative instrument, specify requirements for   the purposes of subsection (5).”

1. Section 70(1) of the Act states that where a member of the Forces is incapacitated from a defence-caused injury or disease the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the member in accordance with the Act.

2. Section 70(5) of the Act states that an injury or disease shall be taken to be defence-caused if the injury or disease, as the case may be, arose out of, or was attributable to, any defence service, as the case may be, of the member.

3. Sub-section 68(1)(d) of the Act defines “defence service” to mean “British nuclear test defence service”.

4. Section 120 of the Act states relevantly:

   Standard of Proof

   (2)     Where a claim under Part IV: …

   (c)     in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test    defence service rendered by the member; …

   the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

   Note 1:      For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).

   Note 2:      This subsection is affected by section 120A.

   (3)  In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

   (a)  that the injury was a war-caused injury or a defence-caused   injury;

   (b)  that the disease was a war-caused disease or a defence-  caused disease; or

   (c)  that the death was war-caused or defence-caused;

   as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

   Note:         This subsection is affected by section 120A.

   EVIDENCE

5. The Applicant is on the document described as the Preliminary Nominal Roll of Australian Participants in the British Atomic Tests in Australia[15]:  Stanbury Sydney William A15651, in the Royal Australian Air Force list.

   [15]          Exhibit 1, T Documents, T28, pages 91 and 92.

6. There is a document which is headed “Security Vetting Records Maralinga”. The document is now in the National Archives of Australia[16]. No issue was taken with the authenticity of that document by the Respondent[17].  The document is headed “Internal Memorandum” and “Department of Supply”[18].  The document states that it is from the Regional Security Officer in South Australia and is dated 16 March 1964[19].  The document states that it is to the Establishment Security Officers at Salisbury, Woomera and Maralinga[20].  There is a tick only next to the Establishment Security Officer, Maralinga[21].  The subject of the Memorandum is “RAAF vetting”[22].  The memorandum states:  “Enclosed for your information is a copy of R.A.A.F. memo. 13/64 dated 12^th March, 1964 advising clearance details in respect of personnel who will be posted to your establishment”[23].  There is a document with serial number 13/64, headed “Department of Air” stating that the “following have been posted to units as shown and have been security cleared to the level indicated”[24].  That document is dated 12 March 1964[25].  The document mentions seven persons, with the first person mentioned being:  “A15651 AC Stanbury, S.W. Base Squadron Edinburgh 13.4.64 SECRET”[26]. 

   [16]          Exhibit 14.

   [17]          Transcript 8 November 2019, P-4 at line 14.

   [18]          Exhibit 14.

   [19]          Exhibit 14.

   [20]          Exhibit 14.

   [21]          Exhibit 14.

   [22]          Exhibit 14.

   [23]          Exhibit 14.

   [24]          Exhibit 14.

   [25]          Exhibit 14.

   [26]          Exhibit 14.

7. There is a further document described as an identification card as to Australian persons employed at the Maralinga South Australia Atomic Test Site from the National Archives of Australia[27]. The card has the number 570481, and refers to Stanbury S W RAAF AC 15651[28]. The only other complete text on the card states as follows:  “List number VM3689 of serial number 13/64 of 13 April 1964”[29].  The cards appear to have been used by the Security Officer at the Maralinga Atomic Test Site and were kept in a bunker at the Weapons Research Establishment at Salisbury in South Australia[30].

   [27]          Exhibit 15.

   [28]          Exhibit 15.

   [29]          Exhibit 15.

   [30] Transcript, 8 November 2019 P-35 at lines 19-21.

8. The Applicant gave oral evidence at the hearing that he was at Maralinga in 1964[31].  That he went to Maralinga in 1964 about three times:  the first for 4-6 weeks; the second for 8 weeks; and the third for 12 weeks[32]. The Applicant described those periods as an attachment from RAAF Base Edinburgh[33].  The Applicant was posted to RAAF Base Edinburgh from 13 April 1964 to September 1966[34].  The Applicant stated that on each of those three occasions, he travelled by Dakotas or Bristol freighter aircraft[35].  That the only method by which he travelled to Maralinga was by plane[36] and the flight took, from his recollection, about an hour[37].  The Applicant recalled filling out forms when going to Maralinga[38].  The Applicant recalled Commonwealth Police filling out cards when he went to Maralinga[39]; that the Commonwealth Police would come in jeeps wearing khaki uniforms[40]. The Applicant recalled specific persons at Maralinga, including Flight Sergeant Jim Parkes[41] and Lieutenant Gould[42].

   [31] Transcript, 8 November 2019 P-16 at lines 33-35.

   [32] Transcript, 8 November 2019 P-16 at lines 33-35.

   [33] Transcript, 8 November 2019 P-19 at lines 14-16.

   [34]          Transcript 8 November 2019, P-20 at lines 13-20. 

   [35] Transcript, 8 November 2019 P-17 at lines 3-5.

   [36] Transcript, 8 November 2019 P-17 at line 6.

   [37] Transcript, 8 November 2019 P-17 at lines 8-9.

   [38] Transcript, 8 November 2019 P-17 at line 13.

   [39] Transcript, 8 November 2019 P-17 at line 19.

   [40] Transcript, 8 November 2019 P-17 at lines 21-27.

   [41] Transcript, 8 November 2019 P-17 at line 42.

   [42] Transcript, 8 November 2019 P-17 at line 43.

9. The Applicant described fracturing his left wrist[43], falling from a ladder when refueling an aircraft climbing a tanker[44]. The Applicant described travelling around in aircraft regularly, as being normal as part of his service in the RAAF[45].

   [43] Transcript, 8 November 2019 P-21 at line 17.

   [44] Transcript, 8 November 2019 P-21 at lines 15-35.

   [45] Transcript, 8 November 2019 P-29 at lines 20-25.

1. As to whether the Applicant was within the area within 40 kilometres of either of the Buffalo or Antler test sites near Maralinga[46], the Applicant gave evidence that he was at an airstrip to his knowledge within that area[47] and went to the Maralinga township[48].

   [46] Section 69B(2) item 3 of the Act.

   [47] Transcript, 8 November 2019 P-31 at line 22.

   [48] Transcript, 8 November 2019 P-33 at line 16.

   CONSIDERATION

2. The Respondent submitted that if the Tribunal were to find on the evidence that the Applicant was away from the Edinburgh airbase and at Maralinga during the time period, the Respondent’s position would be that it would follow that the Applicant would satisfy the criteria in the legislation and otherwise be found to be eligible[49]. The Respondent contended that the nominal roll isn’t indicative of whether or not the Applicant meets the criteria in the legislation, but if a finding was to be made that the Applicant was in Maralinga in 1964, the Applicant would otherwise meet the criteria[50]. The Respondent submitted that the position of the Applicant had “evolved”, with it being a possibility that the Applicant had been at Maralinga, but the documentation when viewed as a whole suggests otherwise and places the Applicant at RAAF Base Edinburgh in 1964[51]. The Respondent submitted that the card from the National Archives as to the Applicant does not include any details, was largely blank[52] and is therefore not determinative of the Applicant’s presence at Maralinga[53]. The Respondent submits that there are no contemporaneous records within the Applicant’s service records supporting his claims as to (being at Maralinga in) 1964[54].

   [49] Transcript, 8 November 2019 P-32 at lines 33-37.

   [50] Transcript, 8 November 2019 P-38 at lines 25-33.

   [51] Transcript, 8 November 2019 P-38 at lines 45-47 and P-39 at lines 1-4.

   [52]          Respondent’s Submissions filed 15 January 2019 paragraphs 28-29.

   [53]          Respondent’s Submissions filed 15 January 2019 paragraph 32.

   [54]          Respondent’s Submissions filed 15 January 2019 paragraphs 42.

3. The Applicant submitted that there is an improbability as to the existence of the Maralinga card, if the Applicant didn’t arrive there[55]. Further, it was submitted by the Applicant that the Applicant provided significant details in oral evidence about the events at Maralinga, with no evidence to the contrary[56]. The Applicant submitted that it is only necessary to establish that the Applicant was in the relevant area once and submitted that that’s been done beyond reasonable doubt, but at least on the balance of probabilities[57].

   [55] Transcript, 8 November 2019 P-40 at lines 5-9.

   [56] Transcript, 8 November 2019 P-40 at lines 15-20.

   [57] Transcript, 8 November 2019 P-41 at lines 5-10.

4. It is found, having regard to the oral evidence of the Applicant, together with the identification card as to the Applicant being employed at the Maralinga Atomic Test Site[58] and the Internal Memorandum to the Security Officer at Maralinga[59], that the Applicant rendered service in the area within 40 kilometres of the Buffalo or Antler test sites near Maralinga in the period from 27 September 1956 to 30 April 1965. Therefore, it is found that the Applicant rendered British nuclear test defence service while a member of the RAAF[60]. As referred to above, as it is found on the evidence that the Applicant was in the relevant area during the relevant time period, the Respondent submitted that further to that finding the Applicant would satisfy the legislation and otherwise be found to be eligible[61].

   [58]          Exhibit 15.

   [59]          Exhibit 14.

   [60] Section 69B(2) item 3 of the Act.

   [61] Transcript, 8 November 2019 P-32 at lines 33-37.

   CONCLUSION

5. Having regard to the finding made as to the Applicant being within the relevant area during the relevant period and the submissions of the Respondent as to the circumstances further to a finding in that regard[62], it is unnecessary to consider the matter further.

   [62] Transcript, 8 November 2019 P-32 at lines 33-37.

6. The decision under review, being the decision of the Respondent made on 29 June 2017[63] rejecting the Applicant’s claim for a pension in accordance with the Act, is set aside and the matter is remitted to the Respondent for reconsideration[64] in accordance with the finding that the Applicant rendered British nuclear test defence service as that phrase is defined in the Act.

   [63]          T16, pages 66 and 67.

   [64] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

.............................[SGD].......................................

Associate

Dated: 24 February 2020

Date of hearing:	8 November 2019
Date final submissions received:	15 January 2020
Counsel for the Applicant:	The Hon. Dean Wells
Solicitor for the Respondent:	Ms Rachel Blake