WILLIAM HARRIS and Repatriation Commission
[2012] AATA 600
•13 June 2012
[2012] AATA 600
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0194
Re
WILLIAM HARRIS
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal M D Allen, Senior Member
Date 13 June 2012 Place Coffs Harbour Local Court For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
..........................[SGD]..............................................
M D Allen, Senior Member
CATCHWORDS
VETERAN’S ENTITLEMENT: Service pension. Qualifying service. Eligible for a service pension. Incurring danger from hostile forces of the enemy. Period of hostilities. Exposed to risk of harm and injury from prisoners of war. Did not incur danger. Decision affirmed.
LEGISLATION
Veterans' Entitlement Act 1986, s 5B, subs (1), s 7A
CASES
Repatriation Commission v Thompson [1988] 82 ALR 352
Repatriation Commission v Robertson [2004] FCA 173
Willcocks v Repatriation Commission (1992) 39 FCR 49Orr v Repatriation Commission [1991] AATA 271
REASONS FOR DECISION
M D Allen, Senior Member
6 September 2012
At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. At that time, the Applicant, pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to him a statement in writing of the reasons of the Tribunal for the decision.
The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.
I certify that the following paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member
........................[SGD].................................
Associate
Dated 6 September 2012
| Date(s) of hearing | 13 June 2012 |
| Applicant Advocate for Applicant | In person Mr M Van Wyck |
| Advocate for the Respondent | Mr N Bunn, Advocacy, Department of Veterans’ Affairs |
EXTRACT OF TRANSCRIPT OF PROCEEDINGS:
MR ALLEN: By application made the 16th day of January 2012, the applicant sought review of decisions by the respondent Repatriation Commission that determined he had not rendered qualifying service, as that term is defined in the Veterans’ Entitlements Act 1986, as amended. The relevant legislation commences with section 5B of the Veterans’ Entitlements Act 1986, subsection (1) thereof which states:
In this Act, unless the contrary intention appears … “period of hostilities” means … World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included).
Section 7A of the Act then goes on to state:
For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
…(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy.
In this matter, the applicant was enlisted into the Australian Army on the 8th day of March, 1945. After recruit training at Cowra, he was sent to Kapooka and did basic Corp training in the Royal Australian Engineers. From there, he was sent to some form of composite unit, described in his record of service as 13 Forward Company, and on 31 March 1946, he disembarked at Rabaul, which of course is in the island of New Britain. His duties there involved guarding Japanese prisoners of war. In his statements, the applicant said that he did face the enemy on a daily basis in his duties of guarding prisoners of war, and that it was the case that he was at risk from hostile forces on the bases that Japanese prisoners of war could, at any time, have sought to escape or overwhelm their guards, or by some means harm their captors.
The applicant was warned, as part of his duties, to be forever on his guard, and he was particularly conscious of that as apparently he arrived at the Cowra recruit training camp on the same evening as the well documented Cowra breakout, when a large number of Japanese prisoners of war broke out of the Cowra prisoner of war camp, and four Australian guards were killed during the breakout. At the same time, it must be stated that although the applicant carried a bayonet during his guarding duties, he did not have a weapon, and live ammunition was locked away. His evidence today was that the NCOs in charge carried rifles, but again, to his knowledge, live ammunition was locked away. He had to concede that while he was at Rabaul guarding the prisoners, nothing happened while he was there. He returned to Australia on 30 June 1946, and was subsequently discharged.
Section 7A requires that the person who seeks qualifying service must have incurred danger from hostile forces of the enemy, during a period of hostilities. The first difficulty I have with the applicant’s claim is that whatever may have occurred in New Britain, it was not during a period of hostilities. Section 5A clearly states that the period of hostilities in relation to World War 2 ceased on 29 October 1945, whereas the applicant did not arrive in New Britain until 31 March 1946. Even apart from that, I cannot find that he incurred danger. The Full Court of the Federal Court in Repatriation Commission v Thompson [1988] 82 ALR 352 says, page 356:
The words “incurred danger” therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is 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 that 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 court continued:
Danger must be real, and not fanciful … It must arise as a direct result of the activities of hostile forces of the enemy. It must arise in the area in which the applicant serves. A feeling of dread is not sufficient to base a claim under this section. There must be established an actual risk of physical or mental harm.
The Federal Court had further occasion to examine the concept in Repatriation Commission v Robertson [2004] FCA 173. At paragraph 11 of his judgment, Beaumont J referred to the decision of Cooper J in Willcocks v Repatriation Commission (1992) 39 FCR 49. His Honour adopted the remarks of Cooper J, where he said:
The word “against” in the phrase “military operations against the enemy” is used in the sense of “in hostility or active opposition to”. This is the common meaning and general usage of the word “against” in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility of opposition to the enemy.
At page 56, Cooper J said, and it was adopted again by Beaumont J:
The activity of releasing and repatriating prisoners of war cannot be characterised as military operations against the enemy within the meaning of the provision. While they were military operations which involved contact with the enemy, they were not in hostility or opposition to the enemy. The situation is properly characterised as one where a veteran was engaged in military operations, which themselves were not operations against the enemy, but in the course of which the veteran had a hostile encounter with the enemy.
I would only add that in this matter it would appear on the facts of the matter, the applicant didn’t have a hostile encounter with the enemy, but was simply on his guard for what might have happened, but did not happen. The applicant referred to the tribunal decision of Orr v Repatriation Commission [1991] AATA 271. I will state at the outset, with all respect to those members of the tribunal who decided Orr, that in my opinion it is wrongly decided. At paragraph 19 of their decision, the tribunal said:
Certainly there was no guarantee as to how the Japanese would react. Similarly the tribunal finds, on the balance of probabilities, that the applicant was at risk or in peril of harm from hostile forces during her service in New Britain, when she was in the vicinity of Japanese prisoners of war. The tribunal agrees with the submission for the applicant that it was not necessary for her to “get a bullet in the back” to satisfy the criteria in section 36 of the Act. The special security measures adopted for the female staff clearly indicate the military’s perception that the women were in danger, and this was not merely the applicant’s subjective perception.
With all respect to that tribunal that seems to me to be exactly the situation that Thompson was supposed to encompass, namely, the perception of danger is not sufficient, there must be an objective test that actual danger was, in fact, incurred. On that basis, I would also affirm the decision under review, but as stated, it seems to me, even on the preliminary point, that the applicant didn’t render service in New Britain during a period of hostilities. The decision under review is affirmed.
0
0
0