van Tongeren and Repatriation Commission
[2011] AATA 263
•20 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 263
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/5996
GENERAL ADMINISTRATIVE DIVISION )
RePeter van Tongeren
Applicant
And Repatriation Commission
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Dr IS Alexander, Member
Date20 April 2011
PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd]....................
Mr RP Handley
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – entitlements - disability pension – special rate –meaning of “remunerative work” – whether employment during prison sentence was remunerative work – whether war-caused injury the only factor preventing veteran from undertaking remunerative work – capacity to continue to undertake remunerative work affected by a number of factors other than the accepted disabilities – decision under review affirmed
WORDS AND PHRASES – “remunerative”, “remunerative work”
RELEVANT ACT
Veterans’ Entitlements Act 1986: ss 5Q, 24, 120
CITATIONS
Flentjar v Repatriation Commission (1997) 48 ALD 1; (1997) 26 AAR 93
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCA 602
OTHER AUTHORITIES
Oxford English Dictionary (OED Online. March 2011. Oxford University Press. (accessed April 19, 2011).)
Macquarie Dictionary (5th edition, 2009)
REASONS FOR DECISION
| 20 April 2011 | Mr RP Handley, Deputy President Dr IS Alexander, Member |
Peter (Jack) van Tongeren has applied for the review of a decision of the Veterans’ Review Board (VRB) affirming a decision to refuse to increase the rate at which disability pension is paid to Mr Van Tongeren from 90% of the General Rate to the Special Rate.
Background
Mr Van Tongeren, who is aged 63, served in the Australian Army between 1968 and 1973. He saw active service in Vietnam in 1970-1971. Mr Van Tongeren has a number of accepted disabilities: recurrent diarrhoea, tinea, sensori-neural deafness, bilateral tinnitus and post traumatic stress disorder (PTSD). His PTSD was accepted as war-caused on 27 May 2004, from which date he has been paid a disability pension at 90% of the General Rate.
On 27 November 2007, Mr van Tongeren applied to the Repatriation Commission for an increase in the rate of his pension. On 21 August 2008, a delegate of the Commission decided that Mr van Tongeren should continue to be paid a pension at 90% of the General Rate. The delegate relied on a statement by Mr van Tongeren that he had ceased work in approximately 1984 to become a political activist and had not worked since. The delegate found that Mr van Tongeren’s age (60 at that time) and the length of time he had been out of the workforce were “major factors in his current inability to work and not his accepted disabilities alone”.
Mr van Tongeren sought a review of this decision by the VRB which, on 20 October 2009 affirmed the delegate’s decision. Mr van Tongeren received notification of the decision on 3 November 2009 and on 18 December 2009 lodged an application for a review of this decision by the Tribunal.
The Relevant Legislation
Eligibility for the payment of pension at the Special Rate is set out in s 24 of the Veterans’ Entitlements Act 1986 (the Act) which states relevantly:
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b …
‘Remunerative work’ is defined in s 5Q(1) as meaning “any remunerative activity”. The standard of proof to be applied in deciding relevant matters in this case is that of the Tribunal’s “reasonable satisfaction” (s 120(4)).
The Commission concedes that Mr van Tongeren satisfies s 24(1)(a)(i) – that the degree of incapacity from his war-caused injuries must be at least 70% - because the degree of his incapacity has been assessed at 90%, and also concedes he satisfies s 24(1)(b) - that he is totally and permanently incapacitated - because his accepted disabilities render him incapable of undertaking remunerative work for periods aggregating more than 8 hours a week. However, the Commission submits that he does not satisfy s 24(1)(c) because his capacity to continue to undertake remunerative work is affected by a number of factors other than his accepted disabilities.
The issue for the Tribunal therefore is whether by reason of his accepted disabilities alone, Mr van Tongeren is prevented from continuing to undertake remunerative work that he was undertaking, and is by reason of this suffering a loss of salary or wages or of earnings that he would not be suffering if he were free of that incapacity (s 24(1)(c)). Mr van Tongeren will not be found to be suffering such a loss if he has ceased to engage in remunerative work for reasons other than his incapacity from his accepted disabilities (s 24(2)(a)).
The Applicant’s Evidence
Mr van Tongeren provided an undated statement (received by the Tribunal on 21 June 2010) and gave evidence at the hearing. He said that after leaving school, he studied civil engineering at Swinburne Institute of Technology in Melbourne before joining the regular Army in February 1968. After completing the usual recruit training, he volunteered for the Infantry and undertook the required training before undertaking further training as a radio operator and attending the RAAF Language School to learn Vietnamese. When posted to Vietnam in 1970, he served as Second in Command of his infantry section, later promoted to Section Commander, and also as a Vietnamese interpreter. His role as an interpreter included interrogating prisoners, sorting out relevant documentary material, and searching bodies for documents.
Mr van Tongeren said that after leaving the Army in 1973, he had various jobs – working on the land, fruit picking, general factory work, warehouse work, forklift driver, clerk, commercial artist, sales representative, signwriter, and quality control officer - but never for very long: he had a problem with authority and found it hard to fit in. The last full-time job he had was in 1984 working for ACI Glassworks. He resigned after a big argument with his supervisor and decided to devote himself to political activity. Between 1984 and 1989, Mr van Tongeren received unemployment benefit, requiring that he look for work, which he did. He said the time spent daily on his political activities varied daily but he described them broadly as “substantial”.
Mr van Tongeren said he and his group involved in the Australian Nationalist Movement attacked Asian‑owned properties to prevent Asians harming Australia. In 1989, he was arrested and charged with a range of offences including arson. In 1990, Mr van Tongeren was convicted of a significant number of associated offences and sentenced to a total of 18 years imprisonment. However, with remission, he served 13 years, one month and five days and was released on 20 September 2002. Mr van Tongeren said he then went back on “the dole” (newstart allowance) which required that he record three job contacts per fortnight. However, as soon as he spoke to potential employers and they learned he had been in prison, they were no longer interested in employing him.
Mr van Tongeren said in late 1998 the Australian Nationalist Workers Union was established and when he was released from prison in 2002, he decided to run for the Senate in Western Australia for the Australian Nationalist Movement. He was very careful to ensure he met all the requirements of the Australian Electoral Commission to avoid the problems others had experienced. Then in 2004, his group got the blame for graffiti-ing a synagogue and he was arrested. He said there was a “media frenzy” over allegations of conspiracy to murder and, in July/August 2004, he was arrested on “bogus charges”. He was held for over two years on remand and then offered a deal as a result of which he pleaded guilty to possession of unlicensed firearms for which he was sentenced to a two‑year suspended sentence and ordered to leave Western Australia, which he did on 23 November 2006.
Mr van Tongeren said the prison routine that he experienced in the period 1989 to 2002 and again 2004 to 2006 followed a similar pattern, including working from about 8.00am to 4.00pm on five days a week. He had various jobs including working as a carpenter and in the cabinet shop making furniture. Prisoners were paid a “gratuity” for their work, ranging from about $10 to $40 per week depending on their skill level. The gratuity was paid into an account for the prisoner and could be spent in the canteen, on phone calls and on other personal items. Mr van Tongeren said if a prisoner refused to work, he got locked up in a bare cell. He worked to preserve his sanity and because, for example, in the case of carpentry, it was a creative activity in which one could lose oneself. He acknowledged that he was “a willing and diligent worker” which was logical for survival in the harsh prison environment. He also acknowledged that working in prison is very different from working in a factory because you are guarded and under supervision the whole time.
Mr van Tongeren said that when he was transferred to the prison in Albany in 1997, and before starting prison work, he was put through a one‑week occupational health and safety course in order to reduce the work accident rate. He was told by a prison guard that the reason for this was that the Federal Court had decided that the workers compensation legislation applied to prisoners working in prison. Mr van Tongeren agreed that he had not undertaken any education or rehabilitation programs while in prison. He said he was educated enough and most of the programs were of a very basic nature teaching skills such as reading or writing.
Mr van Tongeren said that in 2004, the RSL arranged for him to be assessed by a psychiatrist, Dr Oleh Kay. Dr Kay, who diagnosed Mr van Tongeren as suffering from PTSD (subsequently confirmed by another psychiatrist, Dr SK Law), advised him not to work because he would only get angry. Dr Kay said Mr van Tongeren’s attitude and political opinions had been affected by his experiences in Vietnam. Mr van Tongeren noted that his problem with authority had been the reason for leaving the Army Reserve, which he had joined after leaving the regular Army: he had threatened “to punch the living daylights” out of an Army sergeant. By contrast, he said his siblings are all well-educated and have good jobs.
After living with his sister for a short time after his release from prison in 2006, Mr van Tongeren said he moved to a remote area in the South Australian mallee country because he is no longer capable of interacting with people. He has few neighbours and lives like a hermit, does not drink, smoke or take drugs, grows vegetables, talks to the animals, does a bit of drawing and enjoys the clear blue sky. There are no job opportunities where he lives and his only income is his 90% disability pension and his service pension. He lives a frugal existence.
Submissions
Mr Hammal, for Mr van Tongeren, said two psychiatrists have diagnosed Mr van Tongeren as suffering from PTSD and it is this that led to his behaviour and to his being imprisoned. The evidence of the psychiatrists has not been challenged by the Commission. While Mr van Tongeren was in prison, he was employed from 8.00am to 4.00pm on five days a week for which he was paid a gratuity according to his skill level. The fact of it being a small gratuity is irrelevant. The Act does not stipulate how much a person has to earn in remunerative work. Then on his release from prison in 2002, Mr van Tongeren was paid newstart allowance which required that he report at least three attempts to find work each fortnight. He was genuinely seeking work while, at the same time, seeking to pursue a paid political career in the Senate.
Mr Hammal said none of Mr van Tongeren’s applications got beyond a telephone call, because potential employers were not interested when they learnt he had been in prison. When imprisoned between 2004 and 2006, Mr van Tongeren continued to work – in the cabinet shop. On his release from prison in 2006, Mr van Tongeren followed Dr Kay’s advice, that due to his PTSD he should not seek paid employment, and has since lived on his pension.
Thus, Mr Hammal submitted, Mr van Tongeren was employed during his time in prison, was seeking employment after being released from prison in 2002 while registered for newstart allowance, and has acted on the advice of two psychiatrists in not seeking employment since his release from prison in 2006.
Mr Douglass, for the Commission, submitted that the last time Mr van Tongeren was in paid employment was in 1984 and he ceased that work voluntarily in order to pursue his political activities. The Commission contends that remunerative work does not include his work in prison. The gratuities paid for such work are for the purpose of encouraging the cooperation and good behaviour of prisoners and do not represent a reward for employment. There is also a public policy argument for not treating time spent working in prison as paid employment. Mr Douglass noted that Mr van Tongeren’s ceasing work in prison had no connection with his accepted disabilities but, rather, was determined by the expiry of his sentence. With regard to his receiving newstart allowance between 2002 and 2004, Mr Douglass said it is clear that Mr van Tongeren’s real motivation was to promote his political aspirations.
Mr Douglass submitted that in addition to Mr van Tongeren’s accepted disabilities, there are a number of factors that have contributed to his being prevented from continuing to undertake remunerative work. These include his time out of the workforce, his time in prison, his banning from Western Australia, and his choice of living in a remote area. Moreover, in terms of s 24(2)(a)(i), Mr van Tongeren ceased to engage in remunerative work because of his political activities and his time in prison and even if his work in prison is treated as remunerative work, this work ended through the effluxion of time on the expiry of his prison sentence.
Discussion
In the Full Federal Court decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 (Flentjar), at 4-5, Branson J (with whom Beaumont and Merkel JJ agreed) set out the questions that the Tribunal must consider in a case such as this:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
In the Full Federal Court decision in Repatriation Commission v Hendy (2002) 76 ALD 47, at 54, the Court said:
… The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors have on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. …
An issue that does not seem to have been addressed by the courts in the context of s 24(1)(c) of the Act is what is meant by the words ‘remunerative’ in the phrase ‘remunerative work’. As stated above, ‘remunerative work’ is defined in s 5Q(1) as meaning “any remunerative activity”. The word ‘remunerative’ is not defined in the Act. According to the principles of statutory interpretation, it should, therefore, be interpreted according to its ordinary meaning when considered in the context of the Act. ‘Remunerative’ is defined relevantly in the Oxford English Dictionary (OED Online, March 2011) as “1. Liable to provide or offer remuneration or reward; (in later use prob.) spec. providing the opportunity for profit or gain.” The Macquarie Dictionary (5th edition) defines the verb to remunerate as “1. to pay, recompense, or reward for work, trouble, etc. 2. to yield a recompense for (work, services, etc.).”
The first issue in Mr van Tongeren’s case is whether ‘remunerative work’ includes the work he undertook in prison for which he was paid a gratuity. His evidence and that of the file documents indicates that the gratuity paid to prisoners for such work varies according to the level of skill of the prisoner.
In the Tribunal’s view, it is clear that the context in which the words ‘remunerative work’ are used in the Act is with reference to an employment relationship – a contract of employment – entered into between an employer and employee whereby the employer rewards the employee for the work undertaken pursuant to the agreed terms of the contract, or, alternatively, to self-employment. The payment of disability pension, including the payment of pension at the Special Rate under s 24, is intended to compensate a person for “a loss of salary or wages, of earnings on his or her own account” (s 24(1)(c)).
This is a quite different situation from work in the prison environment described by Mr van Tongeren in which prisoners are detained against their will by order of a court and encouraged to work by the payment of a gratuity that can be spent on the such things as food in the canteen, personal items or telephone calls. During such work, prisoners are guarded and supervised in a way one would not expect to find in the community. The gratuity is also not a genuine reward for work undertaken of a kind one would expect in the community. It is more like a small payment for the prisoners’ co-operation and good behaviour, there being a corresponding disincentive to not working in the form of prisoners who choose not to or refuse to work being further confined during work hours. Moreover, it seems likely that the motive for encouraging prisoners to work is to keep them occupied and thereby assist with maintaining discipline and order in the prison.
Thus, in our view, the work undertaken by Mr van Tongeren while in prison does not fall within the description of ‘remunerative work’ in s 24(1)(c) of the Act. We accept that he received newstart allowance from the time of his release from prison in 2002 until he was detained in 2004. It also appears that he received unemployment benefit from the time he stopped work in 1984 until he was arrested and detained in 1989. This means that the last ‘remunerative work’ he undertook was that for ACI Glassworks in 1984 from which he resigned after a dispute with his supervisor, and after which, he told the Tribunal, he decided to devote himself to political activity.
In terms of the second of the four questions to be addressed identified by Branson J in Flentjar, we accept the medical evidence (of Dr Kay and Dr Law) that Mr van Tongeren is prevented from continuing to undertake that work by reason of his accepted PTSD. However, in terms of the third question, we have formed the view that his war-caused PTSD is not the only factor preventing him from continuing to undertake such work. We agree with the Commission’s submission that there are a number of other factors: his time out of the workforce (since 1984), his time in prison (over 13 years between 1989 and 2002), his banning from Western Australia in 2006, and his living in a remote area where he said job opportunities are virtually non-existent.
Thus, the Tribunal concludes Mr van Tongeren does not satisfy s 24(1)(c) of the Act and is not, thereby, qualified for payment of disability pension at the Special Rate.
Decision
The decision under review is affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President and Dr IS Alexander, Member.
Signed: ............[sgd].............................................................
A Veness, Associate
Date of Hearing: 11 April 2011
Date of Decision: 20 April 2011Applicant representative: RC Hammal, Veterans’ Welfare Association of NSW (Inc)
Respondent representative: R Douglass, Repatriation Commission
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