Wiencke and Repatriation Commission (Veterans' entitlements) - [2024] AATA 2605

Wiencke and Repatriation Commission (Veterans' entitlements) [2024] AATA 2605 (22 July 2024)
Division:VETERANS APPEALS DIVISION
File Number(s): 2023/8858
Re:Christopher WIENCKE
APPLICANT

REPATRIATION COMMISSIONAnd
RESPONDENT

DECISION
Tribunal:Senior Member George and Lieutenant-Colonel Ormston
Date:22 July 2024
Place:Adelaide

The decision under review is affirmed.
................[Sgd]...................................................
Senior Member George
................[Sgd]....................................................
Lieutenant-Colonel Ormston
CATCHWORDS
VETERANS – Qualifying Service – National Servicemen – Veterans Entitlement Act –– Speech by Gough Whitlam – decision under review affirmed
LEGISLATION
Veterans Entitlement Act 1986 (Cth)
Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019
(Cth)
Defence Service Homes Act 1973 (Cth)
CASES
Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335
REASONS FOR DECISION
Senior Member George
Lieutenant-Colonel Ormston
22 July 2024
INTRODUCTION

Christopher David Wiencke (‘the Applicant’) was born in 1951. He was called up for National Service and served full-time in the Australian Regular Army Supplement (National Service) from 29 September 1971 until 28 March 1973.[1]
[1] The Applicant’s period of enlistment was in accordance with the Government’s decision in 1971 to reduce the
1964-72 National Service scheme’s obligation from 2 years to 18 months.
After completing basic and specialist corps training, the Applicant was employed for the majority of his service in the Australian Army as a caterer at a small ships base in Chowder Bay, Sydney. At no time did the Applicant serve or deploy outside Australia.
On 4 July 2023, the Applicant lodged a claim with the Repatriation Commission to determine his eligibility for ‘qualifying service’ under the Veterans’ Entitlement Act 1986 (‘the Act’)[2], the relevant legislation. On 27 July 2023, a delegate of the Repatriation Commission determined that the Applicant did not render ‘qualifying service’ as set out in the Act.[3]
[2] Exhibit R1, T-Documents, JT1, Claim to Determine Qualifying Service, pages 23-24.
[3] Exhibit R1, T-Documents, JT1, Determination by Repatriation Commission, pages 25-26.
On 8 September 2023, the Applicant requested reconsideration of the determination dated 27 July 2023. On 23 November 2023, a delegate of the Repatriation Commission affirmed the earlier decision.[4] On 24 November 2023, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision dated 23 November 2023. On 17 May 2024, the Tribunal considered the Applicant’s appeal and reserved its decision.[5]
[4] Exhibit R1, T-Documents, JT1, Determination by Repatriation Commission, pages 7-16.
[5] Exhibit R1, T-Documents, JT1, Application for Review of Decision, pages 2-6.
On 15 July 2024, the parties agreed to the matter being decided by a reconstituted Tribunal, taking account of the tendered material and the transcript of proceedings from the hearing on 17 May 2024. The Applicant did request, however, that the reconstituted Tribunal take particular account of what he regarded as the promissory statement that influenced his decision to complete the full period of his enlistment.
THE LEGISLATIVE FRAMEWORK
Section 120(4) of the Act relevantly provides that the applicable standard of proof is for the Tribunal to decide the relevant issues to its ‘reasonable satisfaction’.
In Repatriation Commission v Smith

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 2605
Decision Date: 22 July 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Wiencke, against a decision of the Repatriation Commission regarding his entitlement to benefits. The applicant, a National Serviceman, contended that assurances made by Gough Whitlam in a 1972 speech, and subsequently communicated by his unit commander, led him to believe he would be entitled to benefits as if he had served in a war zone. He also pointed to benefits and entitlements he had received since his service as evidence of his veteran privileges. The Repatriation Commission argued that these benefits were separate from the definition of "qualifying service" under the Veterans' Entitlements Act 1986 (Cth).

The reconstituted Tribunal was required to determine whether the applicant's military service met the criteria for "qualifying service" as defined by section 7A(1) of the Veterans' Entitlements Act 1986 (Cth). This involved assessing whether the applicant's understanding of Mr Whitlam's speech and his commander's advice constituted legally binding commitments, and whether the benefits he received were indicative of qualifying service under the Act.

The Tribunal found that the applicant's service did not satisfy the criteria for "qualifying service" under the Act. While acknowledging the applicant's genuine belief regarding Mr Whitlam's assurances, the Tribunal noted that the official version of the speech did not mention war zone benefits, but rather spoke of unspecified benefits for the volunteer army and other forces. The Tribunal also considered the applicant's claim about his commander's advice but found it unsubstantiated due to a lack of evidence. The Tribunal concluded that neither the speech nor the commander's advice could be considered legally binding contractual commitments. Furthermore, the Tribunal agreed with the Commission that the benefits and entitlements received by the applicant were unrelated to and dealt with separately from the determination of "qualifying service" under the Act.

Consequently, the reconstituted Tribunal concluded, on the balance of probabilities, that the applicant's military service did not satisfy the criteria of "qualifying service" under section 7A(1) of the Act. The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the evidence before it and for the reasons given above, the reconstituted Tribunal concludes on the balance of probabilities that the Applicant’s military service does not satisfy the criteria of ‘qualifying service’ under s 7A(1) of the Act and that the Applicant, therefore, has not rendered ‘qualifying service’. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

In relation to the Applicant’s contention regarding the benefits and entitlements he received subsequent to his service, the Respondent accepts that the Applicant has received these benefits but contends these are dealt with separately to ‘qualifying service’ in the Act, noting that the White Card and lapel pin were issued in accordance with the Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019, and the War Service Loan was made available under the Defence Service Homes Act 1973 (Cth).CONSIDERATION It is common ground that the Applicant never served outside Australia, nor did he serve during World War 2. Indeed, the Applicant has made clear he is not disputing his eligibility to have rendered ‘qualifying service’ within the definitions of the Act but that his claim is based on the assurances he believes were made by Mr Whitlam and the benefits and entitlements he subsequently received in recognition of his service. The reconstituted Tribunal agrees with the Respondent’s contentions that the Applicant’s service does not satisfy the criteria for ‘qualifying service’ at s 7A(1) of the Act. The reconstituted Tribunal appreciates that the Applicant genuinely believes that the speech by Mr Whitlam in November 1972 included an assurance that he and other National Servicemen “would be entitled to benefits as if we had served in a war zone”. However, the official version of the speech makes no mention of benefits in relation to a war zone, instead talking in appreciative but unspecified terms of the benefits that “Labor will introduce for the volunteer army and other forces”.[14][14]Exhibit R1, T-Documents, JT5, Speech by Gough Whitlam, page 92, lines 12-15. The reconstituted Tribunal also notes the Applicant’s contention that his commander at the time called a meeting of National Servicemen in the unit and advised that Mr Whitlam’s assurance “would be the situation if we stayed to complete our service”. However, as no record or witness to that meeting has been offered in evidence, the reconstituted Tribunal must regard the contention as unsubstantiated. The reconstituted Tribunal acknowledges that, at the time, the Applicant’s understanding of what was said by Mr Whitlam and his unit commander were significant influences in his decision to complete his period of enlistment on a voluntary basis. However, the reconstituted Tribunal does not consider that either could be considered legally binding contractual commitments. The reconstituted Tribunal has also taken account of the Applicant’s contention that the benefits and entitlements he received or accessed since his service “are evidence of my privileges as a veteran”. However, while recognising and respecting the Applicant’s service, the reconstituted Tribunal agrees with the Respondent that these benefits are unrelated to and dealt with separately to the determination of ‘qualifying service’ under the Act. The reconstituted Tribunal also notes the Applicant’s concern that the Act as gazetted in 1986 did not include the assurances he believed had been made by Mr Whitlam in November 1972. The reconstituted Tribunal has not sought to investigate the Act’s antecedents, nor was any evidence offered by the Applicant in that regard.