Whittaker and Repatriation Commission (Veterans' entitlements)

[2020] AATA 4476

Whittaker and Repatriation Commission (Veterans' entitlements) [2020] AATA 4476 (9 November 2020)

Division:Veterans' Appeals Division

File Number(s):      2020/1791

Re:John Whittaker

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:9 November 2020

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

VETERANS’ AFFAIRS – eligibility for Gold Card – nuclear test participant – British Commonwealth Occupation Force participant – whether applicant was Australian resident at the time – Maralinga area – Royal Air Force – decision under review affirmed 

LEGISLATION

Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 (Cth) ss 4, 5, 7

Veterans’ Entitlements Act 1986 (Cth) s 5G

REASONS FOR DECISION

Mr S Evans, Member

9 November 2020

INTRODUCTION

1. On 26 February 2019 Mr Whittaker lodged an application for a Gold Card for Australian British Nuclear Test Participants and Australian British Commonwealth Occupation Force Participants.

2. On 28 May 2019 a delegate of the Repatriation Commission (“the Respondent”) determined that Mr Whittaker was ineligible for a Gold Card on the basis that he did not meet the definition of a nuclear test participant as he was not a member of the Australian Defence Force (“ADF”) nor involved in nuclear tests as a civilian (“the original decision”). 

3. On 15 August 2019 Mr Whittaker sought review of the original decision that he was ineligible for a Gold Card. On 15 January 2020 a delegate of the respondent affirmed the original decision.

4. On 24 January 2020 Mr Whittaker sought review of the decision at the Administrative Appeals Tribunal (“the Tribunal”). 

   Hearing

5. The matter was heard by the Tribunal on 24 August 2020. Mr Whittaker was represented by his wife, Mrs Whittaker. Mr Whittaker, Mrs Whittaker and the representative for the Respondent appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Mr Whittaker provided evidence under affirmation.

   LEGISLATION AND ISSUES

6. Eligibility for the Gold Card is provided for by the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 (“the BCOF Act”). Subsection 7(1) of the BCOF Act provides that a person is eligible to be provided with treatment under the BCOF Act if the person is, amongst other things, a nuclear test participant or a British Commonwealth Occupation Force participant and is an Australian resident. 

7. A British Commonwealth Occupation Force participant is defined in subsection 4(1) of the BCOF Act as a person who was a member of the Australian Defence Force who served in the British Commonwealth Occupation Force in Japan at any time during the period from the beginning of 31 January 1946 to the end of 28 April 1952.

8. The definition of a nuclear test participant is provided in subsection 4(1) of the BCOF Act as someone who meets the criteria under subsections 5(1), (2), (3), (3A) and (3C). These subsections relevantly state:

   5  Meaning of nuclear test participant etc.

   (1) A person is a nuclear test participant if the person:

   (a) was present in a nuclear test area 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 June 1958; or

   (ii)    if the area was the Emu Field area—the period from the beginning of 15 October 1953 to the end of 25 October 1955; or

   (iii)   if the area was the Maralinga area—the period from the beginning of 27 September 1956 to the end of 30 April 1965; and

   (c) was, at that time, an Australian resident.

   (2) A person is a nuclear test participant if the person:

   (a) was involved in the transport, recovery, maintenance or cleaning of a vessel, vehicle, aircraft or equipment that was contaminated as a result of its use 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 25 November 1953; or

   (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) was, at that time:

   (i) a member of the Australian Defence Force; or

   (ii) an employee of the Commonwealth; or

   (iii) a person who, under a contract with the Commonwealth, provided construction, maintenance or support services relating to the conduct of nuclear tests in that nuclear test area during that period; and

   (c)  was, at that time, an Australian resident.

   (3) A person is a nuclear test participant if:

   (a) at any time during the period from the beginning of 3 October 1952 to the end of 31 October 1957, the person flew in an aircraft of the Royal Australian Air Force or the Royal Air Force; and

   (b) at the time the person flew in the aircraft, the aircraft:

   (i) was used in measuring fallout from nuclear tests conducted in a nuclear test area; and

   (ii) was contaminated by the fallout; and

   (c) at that time, the person was:

   (i) a member of the Australian Defence Force; and

   (ii) an Australian resident.

   (3A) A person is a nuclear test participant if the person:

   (a) was at any time during the period from the beginning of 1 May 1965 to the end of 30 June 1988 present in the nuclear test area that was the Maralinga area; and

   (b) was at that time:

   (i) a Commonwealth Police Officer under the Commonwealth Police Act 1957; or

   (ii) a member of the Australian Federal Police under the Australian Federal Police Act 1979; or

   (iii) a protective service officer, or a special protective service officer, within the meaning of the Australian Protective Service Act 1987; or

   (iv) a protective service officer, or a special protective service officer, in a Department of the Commonwealth; and

   (c) was, at that time, an Australian resident.

   (3C)  A person is a nuclear test participant if the person satisfies the requirements specified in an instrument under subsection (3D).

   (3D)  The Commission may, by legislative instrument, specify requirements for the purposes of subsection (3C).

9. An Australian resident is defined under subsection 4(1) of the BCOF Act to have the same meaning as in section 5G of the Veterans’ Entitlement Act 1986 (Cth) (“the VE Act”):

   (1)  In this Act, unless the contrary intention appears:

   Australian resident has the meaning given by subsection (1AA).

   holder, in relation to a visa, has the same meaning as in the Migration Act 1958.

   permanent visa, special category visa and special purpose visa have the same meanings as in the Migration Act 1958.

   (1AA)  An Australian resident is a person who:

   (a)  resides in Australia; and

   (b)  is one of the following:

   (i)  an Australian citizen;

   (ii)  the holder of a permanent visa;

   (iii)  the holder of a special category visa who is likely to remain permanently in Australia;

   (iv)  the holder of a special purpose visa who is likely to remain permanently in Australia.

   Issues to be determined

10. The Respondent submits that as Mr Whittaker was not a member of the ADF nor involved in the nuclear tests as a civilian, he does not meet the criteria for Gold Card eligibility under the BCOF Act.

11. Mr Whittaker concedes that he does not satisfy the eligibility requirements of a British Commonwealth Occupation Force participant.

12. Therefore, the sole issue for the Tribunal to determine is whether Mr Whittaker is a nuclear test participant pursuant to subsection 4(1) of the BCOF Act.

    CONSIDERATION

13. Mr Whittaker was serving in the Royal Air Force (“RAF”) and was present at the main camp of Maralinga for periods of up to two weeks at a time in 1958 and 1959.  He was working as a butcher on detachment from Christmas Island.  His representative submitted on his behalf on 15 August 2019: 

    [Mr Whittaker] was at the Maralinga atomic tests.  He was with the Royal Air Force part of Her Majesty’s commonwealth that is why I thought he would be eligible for a Gold Card…He has not enjoyed good health and I feel a lot is related to the atomic tests. 

14. In relation to Mr Whittaker’s health, his stated conditions include a diagnosis of colon resection cancer in 1992, a triple heart bypass in 2001, rheumatoid arthritis and diabetes.  Ms Whittaker wrote on 12 May 2020:

    As [Mr Whittaker’s] sole carer it has been unreal and very stressful, he has endured so much… 

    Was Mr Whittaker a Nuclear Test Participant for the purposes of the Act? 

15. As Mr Whittaker concedes that he was not a British Commonwealth Occupation Force participant he is required to meet the eligibility requirements of a nuclear test participant in order to qualify for a Gold Card. 

16. The meaning of a nuclear test participant is set out in subsections 5(1), (2), (3), (3A) and (3C) of the BCOF Act. Each subsection contains cumulative requirements which must be met in order for Mr Whittaker to be eligible for a Gold Card.

17. It is not in dispute that Mr Whittaker was at Maralinga for periods during 1958 and 1959. He therefore satisfies the first cumulative requirement in subparagraph 5(1)(a)(iii) of the BCOF Act as he was in the Maralinga area during the period from the beginning of 27 September 1956 to the end of 30 April 1965. 

18. The second cumulative requirement in paragraph 5(1)(c) is that Mr Whittaker was, at that time, an Australian resident.  Mr Whittaker concedes that he was not an Australian resident at the time he was posted to the Maralinga area. He said at hearing that he did not become an Australian resident for the purposes of subsection 4(1) of the BCOF Act until 1966 when he became an Australian citizen.

19. The Tribunal also considered if Mr Whittaker might meet the other definitions of nuclear test participant set out in subsections 5(2), (3), (3A) and (3C) of the BCOF Act. Subsection 5(3) does not apply to Mr Whittaker as it is limited to individuals who flew in an aircraft of the Royal Australian Air Force or the RAF during the period 3 October 1952 to the end of 31 October 1957. Mr Whittaker does not contend that he did so.

20. Further, subsection 5(3A) of the BCOF Act does not apply to Mr Whittaker. Paragraph 5(3A)(a) requires that the person was at any time during the period from beginning of 1 May 1965 to the end of June 1988 present in the nuclear test area that was the Maralinga area. As mentioned above, Mr Whittaker’s service in the Maralinga area was in the period 1958 to 1959.

21. I note also for completeness that as with subsection 5(1), eligibility under subsections 5(2), (3) and (3A) require that the applicant was an Australian resident at the relevant time. Mr Whittaker was not an Australian resident at any of the relevant times specified under these subsections. 

    CONCLUSION

22. Mr Whittaker satisfies the first requirement of a nuclear test participant under subparagraph 5(1)(a)(iii) of the BCOF Act, as he was present in the Maralinga area during the period… 27 September 1956 to the end of 30 May 1963. However, he was not an Australian resident at the time he was serving in the Maralinga area pursuant to paragraph 5(1)(c) and therefore cannot be considered a nuclear test participant for the purposes of the BCOF Act.

23. I found Mr Whittaker to be an honest applicant.  Mr Whittaker is now an Australian citizen.  It is not difficult to appreciate why, in circumstances where Mr Whittaker is suffering from ill health which he attributes in part to his time of service in the Maralinga area, he might have considered himself eligible for a Gold Card.  However, the legislation is unambiguous regarding the qualifying requirements and no latitude exists for the Tribunal in this regard.  The role of the Tribunal is to review the material and evidence before it and to ensure the correct decision is reached. 

    DECISION

24. For the reasons stated above, the decision under review is affirmed. 

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 9 November 2020

Date(s) of hearing:	24 August 2020
Advocate for the Applicant:	Mrs M Whittaker
Solicitors for the Respondent:	Australian Government Solicitor