Wiencke and Repatriation Commission (Veterans' entitlements)
[2024] AATA 2605
•22 July 2024
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 (1987) 15 FCR 327 at 334-335, the Full Federal Court held that the requirement in s 120(4) that the Tribunal must be ‘reasonably satisfied’ imports the civil standard of proof, which is satisfaction ‘on the balance of probabilities’.
Sections 7A(1)(a)(i) to (vi) of the Act relevantly provide that the criteria for ‘qualifying service’ is as follows:
(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
(ii) rendered service after 29 October 1945 in respect of which the person has
been awarded, or has become eligible to be awarded, the Naval General Service
Medal or the General Service Medal (Army and Royal Air Force) with the
Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the
Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance
1945-56 Clasp; or
(iii) rendered service outside Australia in an area described in column 1 of
Schedule 2 during the period specified in column 2 of that Schedule opposite to
that description, as a member of a unit of the Defence Force that was allotted for
duty, or as a person who was allotted for duty, in that area; or
(iv) rendered warlike service; or
(v) rendered continuous full-time service on submarine special operations, at
some time in the period starting on 1 January 1978 and ending at the end of
12 May 1997, for which the person has been awarded, or has become eligible to
be awarded, the Australian Service Medal with Clasp “SPECIAL OPS”; or
(vi) rendered continuous full-time service on submarine special operations, at
some time in the period starting on 1 January 1978 and ending at the end of
12 May 1997, for which the person would have been eligible to be awarded the
Australian Service Medal with Clasp “SPECIAL OPS” if the person had not already been awarded it for other service.
THE ISSUE
The reviewable decision is whether the Applicant rendered ‘qualifying service’. The issue, therefore, is whether the Applicant’s military service satisfies the criteria for ‘qualifying service’ under s 7A(1) of the Act.
THE CONTENTIONS
At the Tribunal hearing on 17 May 2024, the Respondent – represented by Ms Davenport and Ms Zvirgzdins – indicated that they did not intend to ask questions of the Applicant or formally cross-examine unless he wished to provide evidence additional to that tendered as Exhibit R1. The Applicant advised he did not. Accordingly, the Tribunal dispensed with opening statements and proceeded directly to submissions from the parties.
The Applicant
The Applicant, who was self-represented, contends that a speech made by Gough Whitlam shortly before the December 1972 federal election – and shortly before Mr Whitlam became Prime Minister – was a fundamental influence on his decision to continue his period of National Service on a voluntary basis from 7 December 1972 until 28 March 1973. The Applicant contends that was because Mr Whitlam effectively promised in that speech that “if you stay and finish your time, you’ll be supplied with the same benefits as if you’d fought in a war zone”.[6]
[6] Transcript of Proceedings, AAT No. 2023/8858 dated 17 May 2024, page 5, lines 6-8 and line 22.
At the telephone directions hearing on 15 July 2024, the Applicant reiterated to the reconstituted Tribunal his contention that Mr Whitlam’s statement that National Servicemen who agreed to complete the full period of their enlistment “will have the full benefits which Labor will introduce for the volunteer army”[7] was fundamental in his decision-making, contending also that “in 1973, employees took employers at their word” and that “a speech like this is virtually law”.[8]
[7]Exhibit R1, T-Documents, JT5, Speech by Gough Whitlam, page 92, lines 12-15.
[8]Comments by the Applicant at the telephone directions hearing on 15 July 2024.
The Applicant also contends that “14 days before the election our unit commander called a meeting of all National Service personnel on base and advised that [Mr Whitlam’s assurance] would be the situation if we stayed to complete our service, which I did”.[9] In responding to a question from the Tribunal on 17 May 2024, the Applicant noted “he did have a witness to [what was said at that meeting] but, unfortunately, he passed away”.[10]
[9] Exhibit R1, T-Documents, JT1, Statement by the Applicant dated 8 September 2023, page 27 and Transcript
of Proceedings, AAT No. 2023/8858 dated 17 May 2024, page 4, lines 26-47 and page 5, lines 6-8 and
20-29.
[10] Transcript of Proceedings, AAT No. 2023/8858 dated 17 May 2024, page 5, lines 37-38.
The Applicant also notes that he has since been awarded the Australian Defence Medal in recognition that he completed a specified period of enlistment, issued a White Card (and lapel service pin) by the Repatriation Commission entitling him to certain benefits for specific injuries or conditions that have been accepted as the result of his service, and has successfully obtained a War Service Loan to assist with the purchase of a home, all of which he contends are “evidence of my privileges as a veteran”.[11]
[11] Exhibit R1, T-Documents, JT1, Application for Review of Decision, page 6.
The Applicant has also expressed his concern that the Act as gazetted in 1986 failed to include the assurances he believes were made by Mr Whitlam in 1972. At the hearing on 17 May 2024, for example, the Applicant asserted that “my issue is that what happened in 1986 had completely eliminated what was said in 1972”.[12]
[12] Transcript of Proceedings, AAT No. 2023/8858 dated 17 May 2024, page 19, lines 10-22; also page 2, lines
42-45 and page 18, lines 40-44.
The Respondent
The Respondent contends that the Applicant has not rendered ‘qualifying service’ under s 7A(1)(a) for the reasons set out below, citing as evidence the Applicant’s record of service:[13]
[13] Exhibit R1, T-Documents, JT1, Record of Service, pages 19-20.
(a)Section 7A(1)(a)(i)
The Applicant did not render service during a period of hostilities pursuant to the
definition … which refers to service during World War 1, World War 2, Korea from 27 June 1950 to 19 April 1956, Malay from 29 June 1950 to 31 August 1957 and the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973..(b)Section 7A(1)(a)(ii)
The Applicant did not render service in the time periods prescribed.
(c) Section 7A(1)(a)(iii)
Joint Tribunal Book
The Applicant did not at any stage render service outside of Australia.
(c)Section 7A(1)(a)(iv)
The Applicant did not render any warlike service, as determined in writing by the Minister for Defence, at any time during his service.
(d)Sections 7A(1)(a)(v) and 7(1)(a)(vi)
The Applicant did not render continuous full-time service on submarine special operations during periods between 1 January 1978 and 12 May 1997.
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.
The reconstituted Tribunal notes, however, that the Tribunal at its hearing on 17 May 2024 proffered that while “Mr Whitlam had very clear and good intentions as to what he wanted to see happen when he was elected as Prime Minister … things move on and then legislation comes before the parliament and, as we know, the parliament at the end of the day really determines what the law is, and that’s what’s happened in this case”.[15]
[15] Transcript of Proceedings, AAT No. 2023/8858 dated 17 May 2024, page 23, lines 13-18.
Finally, the reconstituted Tribunal acknowledges the comments made by the Applicant both in tendered documents and at the telephone directions hearing regarding his interaction with the Department of Veterans’ Affairs. The reconstituted Tribunal notes that counsel for the Respondent has undertaken to refer these comments to the Department.
CONCLUSION
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.
Signed ……[Sgd]…………………………
Date of Decision:
22 July 2024
Date of Hearing:
17 May 2024
Representation for the Applicant:
Self-represented
Solicitors for the Respondent:
Ms Jenny Davenport
Ms Sasha Zvirgzdins
Australian Government Solicitor’s OfficeEXHIBIT REGISTER
I certify that the preceding 28 paragraphs are a true copy of the reasons for the decision herein of Senior Member George and Lieutenant-Colonel Ormston
Document
Description
Date of compilation
Exhibit R1
Joint tender bundle
(T-Documents)
29 April 2024
Transcript No. 2023/8858
Transcript of proceedings of Administrative Appeals Tribunal hearing
17 May 2024
0
1
0