Verth and Repatriation Commission - [2001] AATA 715

DECISION AND REASONS FOR DECISION [2001] AATA 715

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/17

VETERANS' APPEALS DIVISION       )
           Re      WALTER VERTH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor B W Davis A M (Part-time Member)

Date15 August 2001
PlaceHobart

Decision      The decision under review is affirmed.
  [B W Davis]
  Part-Time Member
CATCHWORDS
Qualifying service – operational area – hostilities – war-like state – RAF – Malaysia – incurred danger – determinations – Repatriation Commission.

Legislation

Veterans' Entitlements Act 1986 and Amendments – ss.5B, 5C and 7A, 36A

Authority

Thompson and Repatriation Commission (1988) 82 ALR 352

REASONS FOR DECISION

15 August 2001 Associate Professor B W Davis A M (Part-time Member)

The Issue

This is an appeal against a decision of a senior delegate of the Repatriation Commission dated 7 February 2001, affirming a decision of a delegate of the Repatriation Commission of 15 December 2000 which found that the applicant (Walter Verth) had not rendered qualifying service within the meaning of s.7A of the Veterans' Entitlements Act 1986 ("the Act").
Background
Walter Verth served in the RAF (Royal Air Force) from 23 May 1961 until discharged on 22 May 1978. During this period he served in Sarawak, Malaysia from 1 October 1963 until 1 October 1964. His stated role was as an assistant air traffic controller, which involved a range of duties. He was informed that the airfields involved were targets for the enemy, as the confrontation with Indonesia was in operation at the time. He therefore believes he has served qualifying service and seeks recognition of this.
Evidence
At the Tribunal hearing on 26 July 2001, Mr Verth gave evidence and was represented by Mr R Webster as counsel. The respondent was represented by Mr M Castle.
Mr Verth stated that after initial service in the Royal Air Force in the United Kingdom he was assigned to service in Malaysia from 1 October 1963 until 1 October 1964, during the period of confrontation between Malaysia and Indonesia. He travelled out to Singapore in a civil aircraft, was transported to Sarawak by landing ship, arrived at Kuching and later spent one month at another airfield at Simmangang, which was a forward landing strip about 15 kilometres from the Indonesian border. At the airfields there were jet fighters and helicopters which were used to monitor the situation and scare Indonesian insurgents at or near the border.
The applicant claimed that at both Kuching and Simmangang airfields armed guards patrolled the perimeter, while the risk at Simmangang was such that he was required to obtain arms and sleep in the control tower at night. He was informed he was on active service and received briefings on incidents occurring at other localities.
Counsel drew attention to a page from the official history of the Malaysian – Indonesian confrontation, in a chapter titled "Borneo: The First Phase 1963-64", outlining a clash which occurred overlooking the Kuching – Simmangang Road, during which Indonesian and Ghurka casualties occurred.
The Tribunal asked Mr Verth whether he had witnessed or been involved in any hostile action or armed conflict at Simmangang airport or in the near vicinity. He stated no incidents had occurred during his period there.
Counsel for the respondent noted that Mr Verth had agreed that Simmangang airport was used for both civilian and armed forces purposes and no hostilities were recorded there. He accepted that Mr Verth was on operational service, but there was not any evidence Mr Verth had suffered danger or action arising from hostile forces.
Counsel for the applicant stated that Mr Verth clearly felt himself to be in danger and his period at Simmangang and Kuching should be regarded as qualifying service. Attention was drawn to the Federal Court decision in Repatriation Commission v Thompson (1988) 82 ALR 352 which stressed that the expression "incurred danger from hostile forces of the enemy" involved an objective test, with words taken in accordance with their everyday English meaning.
Analysis
Mr Verth served as a member of the Royal Air Force in Malaysia during the period 1 October 1963 to 1 October 1964. He therefore meets the initial test of s.5B of the Act, in terms of operational duties in an area and at a time of hostilities recognised in Schedule 2 of the Act.
Mr Verth's service was as a British subject, not as an Australian citizen, s.5C of the Act provides that to qualify as a "Commonwealth veteran" the applicant must have been appointed for continuous full-time service with a unit of a Commonwealth country during a period of hostilities. Mr Verth meets this test and thus can be classified as a Commonwealth veteran.
The requirements for qualifying service relating to veterans who served with the forces of a Commonwealth country are set out in sub-section 7A(1)(b) which states:
"7A Qualifying Service
(1) For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service:
(a) …
(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air forces of Australia were engaged:
(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or
(ii)service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal."
The issue before the Tribunal therefore is whether Mr Verth "incurred danger" from hostile forces of the enemy.
The meaning and intent of the words "incurred danger" were dealt with in the Full Federal Court decision in Repatriation Commission v Harold Walter Thompson (1988) 82 ALR 352. The Court stated:
"The relevant expression 'incurred danger from hostile forces of the enemy' was made up of ordinary English words used in the ordinary sense … . The words should therefore be taken to mean what they say.
… Using the dictionary meaning of 'danger' and 'incurred', a serviceman incurred danger when he or she encountered danger, was in danger or was endangered. He incurs danger or was 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 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.
The test for 'incurred danger' is objective, not subjective."
The Tribunal notes this interpretation, which has been accepted and used in a number of other AAT and Federal Court decisions.
The weight of evidence is that Mr Verth did not incur danger from hostile forces of the enemy while serving at Kuching or Simmangang. While he may have considered himself in danger, both airfields were secure, his period at Simmangang was of few weeks duration and at a time when civilians were permitted in the area and by his own admission no incidents occurred which would have exposed him to peril, harm or injury.
The decision under review is therefore affirmed and Mr Verth has not rendered qualifying service within the meaning of s.7a of the Veterans' Entitlements Act 1986.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor b W Davis A M (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  26 July 2001
Date of Decision  15 August 2001
Counsel for the Applicant        Mr R M Webster
Solicitor for the Applicant         R M Webster
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Dept. of Veterans' Affairs