Townsend and Repatriation Commission - [2001] AATA 211

DECISION AND REASONS FOR DECISION [2001] AATA 211

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1997/211

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM PETER TOWNSEND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President Brigadier R D F Lloyd, Member

Date20 March 2001
PlacePerth

Decision      The Tribunal affirms the decision under review.
  ...........(sgd S D Hotop)............
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – applicant rendered continuous full-time service in the Citizen Military Forces and the Australian Imperial Force from March 1942 to February 1944 – applicant stationed on Garden Island establishing sites for, and operating, searchlights from January to October 1943 – applicant made numerous trips on barge carrying supplies between Fremantle and Garden Island – whether applicant rendered "qualifying service" – whether applicant incurred danger from hostile forces of the enemy – respondent's Coastal Waters Policy regarding "assumed incurred danger" – whether policy valid and applicable in applicant's case

Veterans' Entitlements Act 1986 s7A(1)(a)(i)

Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Green v Daniels (1977) 13 ALR 1
Repatriation Commission v Burton (1993) 19 AAR 118
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49

REASONS FOR DECISION

20 March 2001 Associate Professor S D Hotop, Deputy President Brigadier R D F Lloyd, Member

This is an application by William Peter Townsend ("the applicant") for review of a decision of a delegate of the Repatriation Commission ("the respondent") dated 26 March 1997, as affirmed by a Senior Delegate of the respondent on 1 May 1997, that the applicant had not rendered "qualifying service" within the meaning of s7A of the Veterans' Entitlements Act 1986 ("the VE Act").
At the hearing the applicant was represented by Mr H Christie, of counsel, and the respondent was represented by Dr J Schoombee, of counsel. The Tribunal had before it the documents ("T documents" – comprising T1-T16) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered in evidence by the applicant (marked A1-A9) and by the respondent (marked R1-R9). Oral evidence was given by the applicant and by Mr J Straczek.
The Factual Background
The material background facts, as found by the Tribunal on the basis of the T documents, are as follows.
The applicant enlisted for the Citizen Military Forces ("CMF") on 31 March 1942 and served on continuous full-time war service in the CMF and the Australian Imperial Force in Australia until he was discharged on 6 February 1944. (T4, p12)
The applicant, according to his Certificate of Discharge dated 7 January 1944, served with the 55th Australian Anti-Aircraft Searchlight Battery for a total effective period of 1 year and 313 days which included active service in Australia for 663 days and no period of service outside Australia. (T4, p12)
On 29 May 1990 the applicant lodged with the Department of Veterans' Affairs ("DVA") an "Application to Determine Qualifying Service" form and associated documentation completed by him. (T4, pp 6-11)
On 7 June 1990 a delegate of the respondent made a determination that the applicant had not rendered "qualifying service", as defined in the VE Act, (T5, p13) By letter dated 8 June 1990 the applicant was notified of that determination. (T6, p14)
In response to a letter dated 5 November 1996 from the applicant to the Minister for Veterans' Affairs, a Senior Adviser to the Minister, by letter dated 10 February 1997, provided an explanation of the meaning of "qualifying service" for the purposes of the VE Act during the course of which he stated:
"Service within Australian coastal waters at certain times during World War II may be regarded as qualifying service because of the danger posed by enemy shipping in those areas. I have enclosed a paper which outlines those areas and the times when service in coastal waters may be regarded as qualifying service."

(T7, p15) The contents of the paper enclosed with that letter were as follows:

"Service Within Australia – Service In Coastal Waters
Where a veteran served at sea between the following dates (which are inclusive), and in the Australian coastal waters shown below, the veteran may be regarded as having qualifying service:
(i)between 3 September 1939 and 6 May 1944 – south-west coast of Western Australia (Exmouth Gulf to Albany);
(ii)between 3 September 1939 and 26 March 1945 – south and south-east coast Australia (Albany to Sydney);
(iii)between 3 September 1939 and 16 September 1943 – east and north-east coast of Australia (Sydney to Thursday Island); or
(iv)between 19 February 1942 and midnight on 12 November 1943 – north and north-west coast of Australia (Exmouth Gulf to Thursday Island)."

(T7, p17)

On 14 March 1997 the applicant lodged with the DVA an "Application to determine Qualifying Service by a Veteran or Mariner" form. (T8, pp 18-25)
On 26 March 1997 a delegate of the respondent made a determination that the applicant had not rendered "qualifying service" in terms of s7A(1)(a)(i) of the VE Act. (T9, p26) By letter dated 1 April 1997 the applicant was notified of that determination. (T10, p27)
On 28 April 1997 the applicant lodged with the DVA a request for a review of the delegate's determination of 26 March 1997. (T11, p29)
On 1 May 1997 a Senior Delegate of the respondent affirmed the delegate's determination of 26 March 1997. (T2, pp 2-4)
On 12 June 1997 the applicant lodged with the Tribunal an application for review of the Senior Delegate's decision of 1 May 1997. (T1, p1)
The Applicant's Evidence
A document entitled "Applicant's Statement of Evidence" was tendered in evidence (Exhibit A1 (pt)). In his oral evidence the applicant confirmed that the contents of that document are true and correct. The statement reads as follows:
"1.I joined the Australian Army on 10 March 1942 and was sent to Northam for basic training as a member of the CMF. On completion of my training I was transferred to the 55th Anti Aircraft Search Light Battalion. I then joined the Australian Imperial Forces. My number was WX 31777. I served for a period of one year and 313 days. I was discharged on 6 February 1944.
2.In early January 1943 (approximately the 6th), 25 troops including myself from the 55th AA were transferred to Garden Island to establish a search light site at Careening Bay. To carry out this assignment it was necessary to cart or transfer all necessary equipment to the Island by barge towed by a work boat from Fremantle. I spent nearly ten months on the Island.
3.Before leaving on the first trip it was necessary to obtain permission from the district naval officer as all movements in and out of Fremantle had to be approved. Our commanding officer put forward a proposed course, but was told it was too close to the mainland and was given a course which took us out past the three mile territorial waters and over the deep water of Gage Roads.
4.When the captain of the work boat asked for a crew member for the barge as he only had one crew for the boat. (sic) The commanding officer asked for anyone with boating or sailing experience and as I had some. (sic) I was detailed the job of being crew on the barge, to look after the tow ropes in case of chaffing and to make sure the load did not shift during travel. I was also instructed to keep an eye out for Japanese submarines as they were known to be in the area. I was also to watch out for planes and mines as were the troops on the work boat.
5.To get to Garden Island it was necessary to tow the barge out to Gage Roads from Fremantle through the submarine net which had to be lowered, then travel over deep water in a Westerly direction to a point three nautical miles out then turn south to Garden Island, pass through a submarine boom at the north end of the Island and then onto Careening Bay travelling outside territorial waters. The distance travelled according to the charts was 14.75 nautical miles from Fremantle. Each trip took 2.5 hours each way, but varied slightly according to wind and tide.
6.The first trip went fairly well although there was some trouble with the cargo shifting. As I was a Trade Group 11 Classification, the officer in charge suggested I should also take charge of loading the barge. He then told me to stay as crew of the barge until the operation had been completed. Mr Houghton then sent written orders for me to remain on the barge as crew in charge of loading. He also made a joke that I was in the Navy now.
7.When I got back to Fremantle I ordered rope from the main store suitable to lash the cargo to the barge. By stacking and balancing the equipment, the barge stayed on an even keel after that. It took a week to transport all the equipment including a GMC truck and the search light and generator for the first site to be completed.
8.On completion of the first site we were given orders to construct another site at Sulphur Bay at the northern end of the Island, and that we had to take the same course as before. That is travelling outside territorial waters, still watching out for submarines. This was normal procedure as each trip we were advised that submarines were still in the area. Both sites were completed in ten days including transport of food and water twice a week. On my last trip I was instructed to report to Headquarters to attend a school on the American Sperry searchlights as the one at Sulphur Bay was the new type of light. I was to set up the new light and operate it as I was a TG11.
9.During the time I was in charge of the barge, I travelled 235 nautical miles outside territorial waters and 60 nautical miles in the deep waters of Gage Roads. I was usually granted 24 hours leave every two weeks. To get to and from Fremantle on leave we had to travel over the same course which meant we travelled an additional 590 nautical miles in the ten months on the Island and the majority of which was outside territorial waters.
10.The personnel who served on Garden Island sailed further outside the three mile limit and over deeper water than the Rottnest personnel.
11.To verify Mr Dalton's statement regarding enemy ships, I have carried out considerable research regarding enemy ships around Fremantle and have found that there were six Japanese submarines outside Fremantle area from 1942 to 1944. They were I-1, I-2, I-3, I-23, I-165 and I-166. For further information see submitted evidence.
12.Garden Island was armed because at the fall of Singapore in 1942 the British Admiralty was looking for a safe anchorage for the Eastern Fleet. They decided on Cockburn Sound because of its deep and wide expanse of water which would be an ideal place because it could be protected by anti-aircraft guns and search lights on Garden Island and the mainland and by building a submarine net from the north end of Garden Island to Woodman Point on the mainland.
13.There was also a submarine net built from Cape Perron to the south end of Garden Island. The Parmelia Bank was dredged to make the water deeper to allow the big ships of the British Navy access to the Sound.
14.The nets were built to keep submarines, fast patrol boats and torpedo boats of the enemy from entering the Sound."

In his oral evidence the applicant elaborated on the trips he took on the barge between Fremantle and Garden Island commencing on 6 January 1943 for the purpose of establishing searchlight sites, first at Careening Bay and then at Sulphur Bay. He said that he did a return trip on each day for the first 10 days, departing from Fremantle early in the morning and returning in the evening (sometimes as late as 8.00 pm).
The applicant described, with the assistance of a chart (Exhibit A6), the route taken by the work boat and barge on each of those trips. He said that, upon leaving Fremantle Harbour, they sailed in a westerly direction along a stretch of water known as "Gage Roads" for a distance of 2½-3 miles and then in a southerly direction along a dredged channel about 600 feet wide through "Success Bank" and "Parmelia Bank" and, upon reaching the end of the channel, continued in a southerly direction through Cockburn Sound to Careening Bay at the southern end of Garden Island (on the first 5 days) and to Sulphur Bay towards the northern end of Garden Island (on the next 5 days).
The applicant said that before each trip to Garden Island he and the others making the trip were told by their Commanding Officer to watch out for submarines, mines and aeroplanes. He said that he felt "extremely scared" when making those trips.
The applicant told the Tribunal that, on those trips, he was the only person on board the barge which was made of steel and was approximately 48-50 feet long and 12 feet wide, with a draft of 2½-3 feet. There were about 24 persons on board the work boat which was made of wood ("clinker built") and was about 35 feet long, with a draft of about 5 feet. The length of the tow rope was 100-150 feet.
The applicant also told the Tribunal that, at that time, the "common knowledge" was that there were submarines near Fremantle because they had been "sighted around the place further up the coast". He said that certain defensive measures had been taken in about 1940 in the Fremantle and Cockburn Sound areas, including the placing of anti-submarine booms across the entrance to Fremantle Harbour and also between the northern and southern ends of Garden Island and the mainland south of Fremantle. An electrically-operated indicator loop cable had also been placed along the ocean floor from Rottnest Island to Swanbourne on the mainland north of Perth to indicate the passing of ships and submarines. In addition Bristol aircraft patrolled the area up to 200 kilometres out to sea in search of submarines. There were also gun batteries in various places, including Leighton and Swanbourne on the mainland and on Rottnest Island.
In cross-examination, the applicant acknowledged that during all of his trips between Fremantle and Garden Island in 1943 he never saw any enemy submarines, ships or aircraft; nor did he see any mines. He also acknowledged that he did not come under fire from anybody.
As regards enemy submarines, the applicant said that, if they were in the vicinity of Fremantle Harbour, they would have remained submerged so as to avoid being fired at and, accordingly, he was unable to say whether they were there or not. When it was put to the applicant that the depth of water in the Gage Roads area outside Fremantle Harbour was only about 9 fathoms (54 feet), he responded that that was "a fairly deep piece of water for a submarine, considering a submarine drew about 15 feet of water". The applicant acknowledged that for an enemy submarine to get into Cockburn Sound underwater it would have to go along the dredged channel referred to in paragraph 16 above. The Tribunal notes that the depth of that channel in 1943 was 25 feet (Exhibit A1, p105).
Documentary Evidence Tendered by the Applicant
The applicant tendered in evidence a bundle of documents comprising 165 pages (Exhibit A1). Salient extracts from those documents are as follows:
·     In a book entitled "Battle Surface!" by David Jenkins (Random House Australia, 1992) the operations of Imperial Japanese Navy submarines off the coast of Australia (including the coast of Western Australia) in the period 1942-44 are discussed. There is a reference (at pp144-146) to attacks on merchant ships in the Indian Ocean off Fremantle in March 1942 by the large I-class submarines I-2 and I-3. The only references to operations of Japanese submarines off the Western Australian coast in 1943 relate to the shelling of Port Gregory (north of Geraldton) on 28 January, and a "brief and uneventful … reconnaissance mission to the northwest coast of Australia" in September, by submarine I-165 (pp 266, 286).
·     A book entitled "The Lady was not a Spy" by "Jungle" Jim Davies (1992) contains a discussion of the operations of Japanese submarines along the Western Australian coast in the period 1942-44 (pp 8-11). The only references to such operations in 1943 relate to submarine I-165 operating in the periods 21-28 January 1943 (during which it fired in Port Gregory on 28 January 1943) and 14 September – 8 October 1943 (during which it "came down to Fremantle and kept a watch on the harbour" (p129)). It is stated (at p11) that the shelling of Port Gregory "was the only time the I-165 made its presence felt along our coast".
·     In a letter dated 9 August 1999 to the applicant, Captain Noritaka Kitazawa (Retired), Military History Department, National Institute for Defence Studies, Tokyo, stated that submarines from the 30th Submarine Division (comprising submarines I-162, I-165 and I-166), Imperial Japanese Navy operated off the Western Australian coast in 2 periods in 1943 – namely, submarines I-162, I-165 and I-166 until mid-February, and submarines I-165 and I-166 from August to October (Exhibit A1, p140).
·     A list of reported sightings of enemy submarines off the Western Australian coast during 1943 was provided to the applicant by Mr J Straczek, Senior Naval Historical Officer, Department of Defence by letter dated 10 August 1998 (Exhibit A1, pp 71-74). That list included the following items:
"…
·     At 0345L/23 March 1943, HMAS HORSHAM obtained very strong Asdic echoes in the vicinity of the entrance to Fremantle Harbour and dropped two depth charges. The ILE DE FRANCE passed close to the position without incident and subsequent searches by three corvettes were negative. After investigation, NOIC Fremantle considered that fish were the probable cause.
…
·     At 0253K/28 April 1943, AORWA advised that an aircraft search had been ordered to investigate a reported loop crossing indicating a possible submarine in Gage Roads.
·     At 1540K/16 May 1943, the WHIPPOORWILL reported a strong Asdic contact in position 30º37'S 114º36'E, 110 miles NNW of Fremantle. She dropped six depth charges with unknown results.
·     At 1959K/2 June 1943, NOIC Fremantle reported an (sic) unidentified loop crossings. It was determined that the crossings were probably caused by an examination vessel which was subsequently found to have crossed the indicator loops. And anti submarine sweep of the approaches to Fremantle was negative.
·     At 2000K/9 September 1943, an aircraft reporting(sic) sighting a possible submarine 55 miles NW of Fremantle. HMAS HORSHAM and an aircraft conducted a search. Searches including a sweep by 14 aircraft 200 miles to seaward were negative.
…

NOIC Fremantle reported a loop crossing at 0500L/8 November 1943. The USS ISABEL, on patrol, reported excellent contact and dropped three depth charges in an attack believed to be good, but contact was lost. Analysis indicated doubt that the loop crossing actually occurred. NOIC Fremantle subsequently reported that an intensive air and anti submarine search of the area inside the loops proved negative.".

The Evidence of Josef Straczek

Mr Straczek, who was called as an expert witness by the respondent, told the Tribunal that he is presently the Senior Naval Historical Officer within the Department of Defence, Canberra. He said that, prior to taking up his present appointment, he had 20 years' service in the Royal Australian Navy from 1971 until 1991 when he resigned with the rank of Lieutenant Commander. He told the Tribunal that he is familiar with the waters between Fremantle and Garden and Rottnest Islands, including Cockburn Sound, because, early in his period of service, he was stationed at HMAS Leeuwin and frequently sailed on those waters as part of his training.

Mr Straczek also told the Tribunal that he has completed a Master of Defence Studies degree at the Australian Defence Force Academy during which he researched and wrote papers on aspects of the Japanese Navy, including the development of Japanese naval strategy and doctrine in the 20th Century up to and including the earlier part of World War 2. Mr Straczek said that, in providing information in relation to the matter presently before the Tribunal, he had drawn on contemporaneous records held by the Naval Historical Section, including research papers and daily summaries. He added that he is also familiar with various books by Japanese and American authors concerning the operations of Japanese submarines in World War 2.
Mr Straczek confirmed that he had written a letter dated 8 September 1998 to the DVA in response to a request for specific information and opinions in relation to the circumstances of the applicant's case. The contents of that letter (Exhibit R3) are as follows:
"…

A barge/work boat combination would not have been a likely target for a Japanese submarine.
There is no record of attacks on barges close inshore by submarines.
The Fremantle anti submarine boom was laid across the mouth of the Swan River. It is expected that a small craft proceeding to Garden Island would have taken the shortest, most direct and safest route.
This office has no record of any overt challenges between foreign submarines and Australian or Allied forces in the waters between Fremantle, Garden and Rottnest Islands.
This office has no information on the specific orders given to Japanese submarines. Generally, their strategic purpose was to attack merchant shipping and naval shipping of consequence.
It is unlikely that Garden Island was a target for Japanese submarines.
The only Japanese submarines known to have operated off the Australian west coast were I-1, I-2, I-3, I-32, I-165 and I-166.
It is considered that there is little likelihood that Mr Townsend was in danger from enemy forces when he sailed from Fremantle to Garden Island.
…".

Mr Straczek was referred to the list of reported sightings of enemy submarines he provided to the applicant by letter dated 10 August 1998 (Exhibit A1, pp 71-74) – in particular, to the items set out in paragraph 22 above. As regards the item involving HMAS Horsham on 23 March 1943, Mr Straczek referred to a contemporaneous report of that incident made by the Commanding Officer of HMAS Horsham to the Commanding Officer of HMAS Rushcutter (Exhibit A1, pp 118-119) and to memoranda of the Acting Commander of HMAS Rushcutter in response thereto, dated 6 April 1943 and 6 May 1943 (Exhibit A1, pp 119, 122), in which the opinion was expressed that the object of the attack was probably not a submarine. As regards the item involving "AORWA" (Air Operations Room Western Australia) on 28 April 1943, Mr Straczek confirmed that no subsequent information came to light on that reported loop crossing and commented that the indicator loops sometimes gave false signals. Mr Straczek made the same comment in relation to the items involving "NOIC" (Naval Officer-in-Charge) Fremantle on 2 June 1943 and 8 November 1943.
Mr Straczek referred to the type of Japanese submarines that were operating off the Western Australian coast during World War 2. He said that they were known as "I class" and were "big ocean-going submarines". He referred to p 97 of a book entitled "Submarines of the Imperial Japanese Navy 1904-1945" by Polmar and Carpenter in which the following details on submarine I-6 are provided (Exhibit R5):
Length:     323 feet
Beam:      29¾ feet
Draft:        17½ feet
Speed:     20 knots surfaced; 7.5 knots submerged
Range:20,000 nautical miles at 10 knots surfaced; 60 nautical miles at 3 knots submerged.

[The Tribunal notes that Mr Christie (for the applicant) subsequently tendered other extracts from the abovementioned book in which the following details on submarine I-165 are provided (Exhibit A8):
           Length:     320½ feet
           Beam:       26¼ feet
           Draft:        15½ feet
           Speed:     20.5 knots surfaced; 8.25 knots submerged

Range:10,000 nautical miles at 10 knots surfaced; 60 nautical miles at 3 knots submerged.]

Mr Straczek commented that, owing to the very limited underwater range of "I class" submarines, they would operate on the surface as much as possible and, in order to do that, they would need to stay away from the coast where the gun batteries were located. As regards the possibility of an "I class" submarine entering the waters around Fremantle, Mr Straczek pointed out that the total height of such a submarine was 30-35 feet, whereas the depths of the Success and Parmelia Banks, and even the depth of the dredged channel, were less than that distance; and the greater depth in Gage Roads (about 54 feet) was only about 20 feet more than the total height of the submarine. Having regard to those considerations Mr Straczek's considered opinion was that no Japanese "I class" submarine would have entered those waters near Fremantle Harbour or could have entered Cockburn Sound.

Mr Straczek suggested, furthermore, that the work boat and barge on which the applicant sailed between Fremantle and Garden Island in 1943 would not have been a "strategically attractive" target to a Japanese submarine Commander. He referred to the fact that there was at that time a shortage of Japanese torpedoes and the number of torpedoes to be used against specified targets was strictly limited – 1 torpedo where the target was a merchant ship, submarine or destroyer; 3 torpedoes where the target was a cruiser: see "Jungle" Jim Davies, "The Lady was not a Spy" (1992), p8 (Exhibit A1, p36). He also referred to the practical difficulties of hitting, with a torpedo, a target with a relatively shallow draft, such as the work boat (5 feet) and the barge (2½-3 feet) on which the applicant travelled between Fremantle and Garden Island.
Mr Straczek was also questioned about the use by the Japanese Navy of "midget" submarines. He said that such submarines were used by the Japanese on only 3 occasions during World War 2 – namely, the attack on Pearl Harbour, the attack on Sydney in 1942, and an attack on Madagascar. He said that he had not seen any evidence that the "I class" submarines that operated off the Western Australian coast during World War 2 carried "midget" submarines.
Finally, Mr Straczek confirmed that there was no record of the existence of enemy mines in the vicinity of Fremantle, nor were any defensive or controlled mine fields laid in Western Australian waters.
The Law
Section 7A of the VE Act relevantly provides:
"(1)For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or
…".

The phrase "period of hostilities" is defined in s5B(1) of the VE Act to mean, among other periods:

"(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); …".

In Repatriation Commission v Thompson (1988) 44 FCR 20 the Federal Court of Australia (Full Court) explained the meaning of the phrase "incurred danger from hostile forces of the enemy" in the abovementioned statutory definition of "qualifying service" (which then appeared in s36(a)(i) of the VE Act) as follows (at pp 23-24):
"The words 'incurred danger' therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words 'incurred danger' do not encompass a situation where there is a mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.
…
We have already stated that liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred."

In Willcocks v Repatriation Commission (1992) 39 FCR 49 the Federal Court of Australia (Cooper J) explained the meaning of the phrase "in naval, military or aerial operations against the enemy" in the abovementioned statutory definition of "qualifying service" (which then appeared in s36(1)(a)(i) of the VE Act) as follows (at pp 55-56):
"…Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy.
The phrase 'naval, military or aerial operations against the enemy' is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for the service to constitute 'qualifying service' within the meaning of s36(1) of the VE Act.
Having regard to the concession by counsel for the respondent that the applicant had, as a member of the Defence Force, rendered service during a specified period of hostilities in the field in military operations, it is only necessary to address the question what is the ordinary unambiguous meaning of 'against' in the context of the phrase 'military … operations against the enemy'."

His Honour then referred to various usages and meanings of the word "against" given in The Oxford Dictionary (2nd ed) and continued:

"In s36(1)(a)(i), the noun 'operation' is clearly a noun of action; and the use of the word 'against' in the phrase 'military operations against the enemy' clearly expresses the adverse bearing of that noun in the context of s36(1)(a)(i).
Accordingly, in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy."

The abovementioned reasoning of Cooper J was also adopted by the Federal Court of Australia (Olney J) in Repatriation Commission v Burton (1993) 19 AAR 118.
The Respondent's Policy in relation to "Qualifying Service"

The T documents contain a document entitled:
"Policy Regarding Assumed Incurred Danger". (T15)

That document relevantly states:

"General
Subparagraph 7A(1)(a)(i) VEA requires that a veteran 'incurred danger' from hostile forces during World War II.
The Commission's policy is to accept that an Australian veteran incurred danger when serving in certain places at certain times, under specified conditions.
A veteran that served during World War II may be deemed (without need for further investigation) to have qualifying service if the veteran served in one of the following areas.
…
Service Within Australia – Service in Coastal Waters
Where a veteran served at sea between the following dates (which are inclusive), and in the Australian coastal waters shown below, the veteran may be regarded as having qualifying service:
(i)between 3 September 1939 and 6 May 1944 – south-west coast of Western Australia (Exmouth Gulf to Albany);
(ii)between 3 September 1939 and 26 March 1945 – south and south-east coast Australia (Albany to Sydney);
(iii)between 3 September 1939 and 16 September 1943 – east and north-east coast of Australia (Sydney to Thursday Island); or
(iv)between 19 February 1942 and midnight on 12 November 1943 – north and north-west coast of Australia (Exmouth Gulf to Thursday Island)."

The parties tendered in evidence copies of various official documents (Exhibits R9 and A9) which provide the background to the development by the respondent of the abovementioned policy. These documents included three Cabinet documents of July 1965 (Exhibit R9) relating to the policy to be applied by the respondent in making determinations on the question whether a member of the Forces had "served in a theatre of war" for the purpose of deciding whether such member was eligible for the grant of a service pension under s84(1) of the Repatriation Act 1920. The phrase "served in a theatre of war" was defined in s23 of the Repatriation Act in terms substantially similar to the definition of "qualifying service" in s7A(1)(a)(i) of the VE Act. The first of the abovementioned Cabinet documents was a Submission to Cabinet dated July 1965 by the then Minister for Repatriation, Senator G C McKellar, which relevantly stated:
"1.       In Submission No. 458 of 1964, my predecessor brought to Cabinet's notice certain features of the Repatriation system which had some appearance of anomaly and which had attracted public criticism, also the practical and political difficulties of altering at this stage the established law and policies in those areas.
2.        The matters directly concerned legislation and long-standing departmental policies relating to pulmonary tuberculosis, assessments for defective vision, and service in a 'theatre of war'. The apparent anomalies to which attention was invited were:
…
Service in a 'Theatre of War'
          This is defined in section 23 of the Act and is a requirement for service pension and also for grant of war pension for tuberculosis not due to war service. Since the 1939-45 War it has been conceded in respect of service outside the territorial waters or outside a limit of three miles from the coast of the Commonwealth of Australia during the period of hostilities. In a number of cases this has not been strictly in accordance with the legislation, which requires that 'danger from hostile forces of the enemy' should have been 'incurred'. The principal difficulty concerns service on certain Australian off-shore islands, in particular Rottnest Island off Fremantle.
…
15.      Since the previous submission to Cabinet the Repatriation Commission has dealt with a number of claims of this nature. In regard to service in Australian coastal waters and on Australian off-shore islands, it has restricted eligibility to periods from the commencement of hostilities to 3 months after the last known enemy action in those waters or adjacent waters. Further, in the case of service on off-shore islands, it has required not less than 3 months continuous service during such a period. It is not proposed to review earlier entitlements on this basis, but to apply the new policy to new claims only. So far its application has not been the subject of challenge or complaint
.
RECOMMENDATION
16.      In my view it is neither reasonable nor politically practicable to materially vary longstanding policies. I therefore RECOMMEND that Cabinet take note of the matters to which I have referred and decide that:-
          (a)       …;
          (b)       …;
(c)the Commission's revised policy for determination of service in a theatre of war as applied to service in Australian coastal waters or on Australian off-shore islands as explained in paragraph 15 be endorsed."

A Cabinet Minute dated 7 July 1965 confirmed that "the policy outlined in paragraph 15 of the Submission is to be regarded as current policy".

An official minute of a meeting of the respondent held on 10 September 1986 (Exhibit A9) states as follows:
"QUALIFYING SERVICE FOR THE PURPOSE OF
ELIGIBILITY FOR SERVICE PENSION –
WORLD WAR II VETERANS
COMMISSION DECISION
The Commission had before it a submission from the Benefits Division proposing guidelines for Commission delegates in determining 'qualifying service' in service pension claims based on section 36(a)(i) of the Veterans' Entitlements Act (VEA).
2.        The Commission DECIDED to adopt the guidelines set out below for use by delegates in determining qualifying service for the purposes of sub-section 36(a)(i) of the VEA in relation to Australian Veterans who served during the 'period of hostilities' (section 35 of the VEA) in the Second World War.
3.        A Veteran will be deemed to have qualifying service in the terms of sub-section 36(a)(i) of the VEA if the Veteran served outside Australia (that is, outside the coastal waters of Australia):
i)in any area, other than the 'West Pacific area', between 3 September 1939 and 5 May 1945 (inclusive);
ii)in the 'West Pacific area' (other than in Papua or New Guinea, including New Britain, before 7 December 1941) between 3 September 1939 and 15 August 1945;
iii)in Papua or New Guinea, including New Britain, between 7 December 1941 and 15 August 1945; or
iv)in an aircraft engaged in operations against hostile forces of the enemy or on reconnaissance or patrol duty over land occupied by hostile forces of the enemy.
4.        For definitional purposes 'West Pacific area' will be taken to include the general area bounded by:

in the west, longitude 90 degrees east from the coast of (now) Bangladesh;
in the east, longitude 165 degrees east;
in the south, latitude 10 degrees south including PNG; and
in the north, by and including the eastern regions of the Asian continent.
5.        As to claims by Veterans who served within Australia and its coastal waters, the Commission DECIDED to maintain, for the determination of 'qualifying service', the policy which applied for determining 'theatre of war' under the previous legislation as set out in Attachment B to this decision, subject to any review which becomes necessary as a result of guidance from courts interpreting the provisions of the VEA.
6.        Claims by Australian Veterans who served other than in circumstances described in paragraph 3 above and in Attachment B to this decision and who claim to have incurred danger from hostile forces of the enemy during the period of hostilities will be decided on the basis of the Veteran's individual circumstances.
7.        Commission delegates are to note that the standard of proof which applies under the VEA to claims for 'qualifying service' is the civil standard."

"Attachment B", referred to in paras 5 and 6 of the abovementioned minute, states as follows:

"QUALIFYING SERVICE IN AUSTRALIA AND
COASTAL WATERS OF AUSTRALIA –
WORLD WAR II VETERANS
A Veteran will be deemed to have qualifying service in terms of sub-section 36(a)(i) of the VEA
(a) if the Veteran served at sea in the coastal waters of Australia from
(i)Exmouth Gulf (south) to Albany between 3 September 1939 and 6 May 1944;
(ii)Albany (east) to Sydney between 3 September 1939 and 26 March 1945;
(iii)Sydney (north) to Thursday Island between 3 September 1939 and 16 September 1943 (service in Moreton Bay or on the islands at the entrance to that bay is excluded); or
(iv)Thursday Island (west) to Exmouth Gulf between 19 February 1942 and 12 November 1943; or

(b)if the Veteran served in the Northern Territory for at least three consecutive months north of latitude 14.5º south, or on any of the islands contiguous to that part of the N.T., between 19 February 1942 and 12 November 1943 (inclusive); or
(c)if the Veteran served on the Torres Strait Islands (including Horn Island)
(i)between 3 September 1939 and 16 September 1943 and the Veteran enlisted at a place other than the Islands or served outside the three-mile limit of the island of enlistment; or
(ii)between 14 March 1942 and 19 June 1943 where such service was on the island of enlistment only and was not less than three consecutive months duration; or

(d)if the Veteran served on Rottnest Island for a period of not less than three months duration between 3 September 1939 and 6 May 1944."

The Role of Official Policy in Tribunal Review

A governmental or departmental policy which is necessarily inconsistent or incompatible with valid legislation is itself invalid and must not be applied by administrative decision makers, including this Tribunal. Even where the relevant policy is valid, however, an administrative decision which involves merely an inflexible application of that policy, and a refusal to have regard to the circumstances of the particular case in relation to the relevant legislative provisions, will be invalid: Green v Daniels (1977) 13 ALR 1.
The role of official policy in the review of administrative decisions by this Tribunal has been delineated by the Federal Court of Australia and by the Tribunal in the Drake cases. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 the Full Court held that the Tribunal is legally obliged to have regard to relevant government or agency policy but is not legally obliged to apply such policy. Following the observations of Brennan J (President) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 (and his earlier observations in Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 162-163), however, the general practice of the Tribunal has been to apply relevant policy – especially where it has been settled at the political, rather than at the departmental or agency, level – unless the policy is itself unlawful or its application would cause injustice, or there are other cogent reasons militating against its application, in the circumstances of the particular case.
The Application of the Law and the Policy of the Respondent in the Circumstances of the Applicant's Case
As regards the law, the requirements which must be satisfied by the applicant before it can be said that he rendered "qualifying service" during World War 2 are set out (relevantly) in s7A(1)(a)(i) of the VE Act. It is not in dispute that the applicant, "as a member of the Defence Force … rendered service, during a period of hostilities …, at sea, in the field or in the air", within the meaning of s7A(1)(a)(i). What is in dispute, however is:

whether he rendered such service "in naval, military or aerial operations against the enemy in an area or on an aircraft or ship of war"; and
whether at that time he "incurred danger from hostile forces of the enemy in that area or on that aircraft or ship",

within the meaning of that subparagraph. The Tribunal will first consider the latter issue because the evidence presented, and the submissions made, by the parties to the Tribunal were predominantly concerned with that issue.
Did the applicant incur danger from hostile forces of the enemy, within the meaning of s7A(1)(a)(i) of the VE Act?

The test that must be applied by the Tribunal, for the purposes of making a finding on that issue, is an objective one: Thompson (above). To satisfy that test, the applicant must in fact have incurred danger, in the sense of having been at risk or in peril of harm or injury, from hostile forces of the enemy. It is not sufficient that the applicant merely subjectively perceived or feared that he might be in danger from such forces or that there was a mere liability to, or risk of, danger from such forces in his case.
The whole of the material before the Tribunal establishes to its reasonable satisfaction that the abovementioned statutory test has not been satisfied in the applicant's case. On the applicant's own evidence, he did not at any time come under fire from the enemy and, during all of his trips between Fremantle and Garden Island in1943, he never saw any enemy submarines, ships or aircraft or any mines. The Tribunal accepts the applicant's evidence that before each of those trips the Commanding Officer routinely issued a warning to watch out for submarines, mines and aeroplanes, and that he (subjectively) felt "extremely scared" when making those trips. That evidence, however, is not sufficient to satisfy the relevant statutory (objective) "incurred danger" test as explained above. At the most the evidence before the Tribunal indicates that there may in fact have been a risk – and a very low one – of danger to the applicant from the enemy in the course of his trips between Fremantle and Garden Island, and during the time he spent on Garden Island, in the period from January to October 1943, by reason of the operation of a small number of Japanese "I class" submarines off the Western Australian coast for 2 relatively short periods in 1943 (January – February and August – October). In this connection the Tribunal accepts the expert opinion evidence of Mr Straczek to the effect that:

there is no record of a Japanese submarine being in the waters between Fremantle and Garden Island in 1943;
it is unlikely that Garden Island was a target for Japanese submarines in World War 2;
there is little likelihood that the applicant was in danger from enemy forces when he sailed from Fremantle to Garden Island during 1943.

Even if the applicant was at risk of danger from enemy forces during the relevant period, however, that of itself is not sufficient to satisfy the abovementioned statutory test: Thompson (above). In order to satisfy that test, the applicant must in fact have incurred danger from hostile forces of the enemy and, on the material before the Tribunal, he did not in fact incur such danger at any time.

Having regard to the Tribunal's finding that, in the particular circumstances of the applicant's case, the applicant did not in fact incur danger from hostile forces of the enemy at any time during his trips between Fremantle and Garden Island in the period from January to October 1943, there is no scope for the application of the so-called "Coastal Waters Policy" of the respondent (set out in paragraph 34 above) in this case. As previously indicated (see paragraph 37 above), for the Tribunal inflexibly to apply that policy in favour of the applicant, without regard to the relevant circumstances of his case – in particular, the crucial circumstance that he did not in fact incur danger from the enemy at any time during his trips between Fremantle and Garden Island in the relevant period – would be to act unlawfully and to make an invalid decision.
As regards the status of the policy itself, the Tribunal does not regard that policy as necessarily inconsistent or incompatible with s7A(1)(a)(i) of the VE Act. The Tribunal notes that, whereas the terms of the former policy statement were rigidly expressed in mandatory terms ("A Veteran will be deemed to have qualifying service …" (emphasis added) – see paragraph 36 above), the terms of the current policy statement ("… the veteran may be regarded as having qualifying service …" (emphasis added) – see paragraph 34 above) are permissive and are not such as necessarily to exclude a consideration of the relevant circumstances of particular cases. In short, the Tribunal does not regard the current "coastal waters policy" of the respondent as invalid.
Reference was also made at the hearing to the respondent's "Rottnest Island Policy", according to the terms of which a "veteran who served on Rottnest Island for a continuous period of not less than three months between 3 September 1939 and 6 May 1944 inclusive, may be regarded as having qualifying service". (T15) Although the status and operation of the "Rottnest Island Policy" were not relevant issues in the present case, the Tribunal would venture the opinion that that policy ought to be regarded in the same way as the "Coastal Waters Policy" has been regarded in the present case. The fact that the respondent has not issued a similar policy statement in relation to service on Garden Island during World War 2 is a matter about which the Tribunal expresses no opinion.
Conclusion
The conclusion of the Tribunal in this matter is that, by reason of its finding that the applicant did not incur danger from hostile forces of the enemy in the period from January to October 1943 during which he sailed between Fremantle and Garden Island and served on Garden Island, he did not render "qualifying service", within the meaning of s7A(1)(a)(i) of the VE Act, in that period. That finding and conclusion make it unnecessary for the Tribunal to determine the other issue which was raised, but only faintly agitated, in this case – namely, whether the applicant, in the abovementioned period and circumstances, rendered service "in naval, military or aerial operations against the enemy", within the meaning of s7A(1)(a)(i) of the VE Act.
Decision
For the above reasons the Tribunal affirms the decision under review.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Brigadier R D F Lloyd, Member
Signed:
................................(sgd S Railton).................................
Associate
Date/s of Hearing  21 September 2000 and 12 October 2000
Date of Decision  20 March 2001
Counsel for the Applicant        Mr H Christie
Solicitor for the Applicant
Counsel for the Respondent    Dr J Schoombee
Solicitor for the Respondent    Australian Government Solicitor

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Citations

Townsend and Repatriation Commission [2001] AATA 211

Cases Citing This Decision

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7

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Rinaldy v Minister for Immigration and Multicultural Affairs [2002] FCA 117

Gilgen and Repatriation Commission [2000] AATA 447

Repatriation Commission v Tiernan [2001] FCA 519