Wooding and Repatriation Commission
[2006] AATA 907
•26 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 907
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/334
VETERANS' APPEALS DIVISION ) Re ROY WOODING Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date26 October 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – applicant toured Vietnam (Southern Zone) as a member of a South Australian Concert Party arranged and sponsored by the Australian Forces Overseas Fund – applicant not under the command of Australian Defence Forces – applicant recorded on nominal roll of Vietnam veterans and awarded Vietnam Logistic and Support Medal – not formally attached to Australian Defence Forces and not a member of Australian Forces Overseas Fund – whether applicant is covered by the 1987 Ministerial Direction or is otherwise a veteran – decision affirmed
Veterans’ Entitlements Act 1986 ss 5C, 5(13), 5R, 5(7), 69(1), 120(4)
Ferriday v Repatriation Commission (1996) 42 ALD 526
Iversen v Repatriation Commission [2006] FCA 942
Re Iversen & Repatriation Commission [2006] AATA 280REASONS FOR DECISION
26 October 2006 Mr J G Short (Member) background
1. Mr Wooding is an entertainer and musician. He was a member of a South Australian Concert Party (SACP) and toured Vietnam (Southern Zone), from 18 September 1969 until 1 October 1969 and from 18 February 1970 until 5 March 1970. The concert parties were arranged and sponsored by the Australian Forces Overseas Fund (AFOF). On 9 November 2001 Mr Wooding lodged a claim with the respondent (the Commission) for a Disability Pension. The claim was rejected on the basis that Mr Wooding was not a veteran or a member of the Australian Defence Force (the Defence Force). The decision was affirmed by the Veterans’ Review Board (VRB) on 28 September 2005.
2. Mr Wooding’s appeal proceeded by way of a statement of agreed facts (Exhibit A2). The applicant confined his submissions to a suggestion that although he was not a member of the Defence Force (in that he did not satisfy s 69(1) of the Veterans’ Entitlements Act 1986 (the VE Act)) and does not meet the definition of a veteran (being a person who served in one of the two World Wars or who has rendered operational, hazardous or peacekeeping service) he was covered by a Ministerial Determination dated 18 December 1987 which directed that certain persons be treated as members of the Defence Force who were rendering continuous full-time service for the purposes of the VE Act.
issue
3. The issue before me is whether Mr Wooding’s visits to Vietnam, as a member of the SACP, bring him within what can be described as the deeming provisions of the Ministerial Determination dated 18 December 1987.
statement of agreed facts
4. I will now set out the statement of agreed facts recorded as part of Exhibit A2:
“1. The Applicant, ROY WOODING, was born on 5 May 1932.
2.Mr Wooding served in the prescribed operational area of Vietnam (Southern Zone) on two occasions:
2.1from 18 September 1969 to 1 October 1969 with the 7/69 South Australian Concert Party; and
2.2from 18 February 1970 to 5 March 1970 with the 1/70 South Australian Concert Party (T28/72).
3.Mr Wooding is an entertainer and musician. His curriculum vitae appears at T20/57. As part of the Concert Parties, he provided entertainment for Australian forces in Vietnam. This entertainment took the form of a number of concerts conducted throughout what was then South Vietnam. A list of the concerts is recorded at T19/55-56. Other activities are described in the statement of Ms Jenny Loftes at T37/91-93.
4.Other people who were part of the relevant Concert Parties were Johnny Mac, Susan Wills, Lorrae Desmond, Anne Wills and John Rayment.
5.The entertainment provided by the South Australian Concert Party was for the purpose of contributing to the morale and welfare of the Australian military forces in Vietnam.
6.A number of contemporaneous newspaper articles recording the Concert Parties are recorded at T44/110-117. A further article is also attached to this statement as Annexure A.
7.A book published at the time of the tours described Mr Wooding as follows:
ROY WOODING
Staff guitarist and producer at Channel 7 Adelaide, was born in Yorkshire, England, migrated to Australia at age of 16 where he started his musical career singing with guitar on a weekly radio show which ran for 10 years. With the introduction of TV he made regular appearances on most of the most [sic] TV stations in Australia as a single act and was resident guitarist with the ABC Light Orchestra. Roy is now concentrating on the writing of music, production and guitar. At 37 he still claims to be the oldest rocker in the business.
8.The parties have not been able to find a copy of the book.
9.The South Australian Concert Parties were “arranged” and “sponsored” by the Australian Forces Overseas Fund (“AFOF”) (T44/111 & 114). A copy of a flier published for a concert to raise funds for the South Australian Concert Party is attached as Annexure B.
10.In addition to performing in the concerts, Mr Wooding was the producer and musical director of both Concert Parties.
11.The Concert Parties were assigned an escort officer. On the first tour, the officer was Major Moran. On the second tour, the officer was Major John Doyle, a member of 3rd RAR. The Army was responsible for the itinerary, travelling, and security details of the tours.
12.The history and background of the Australian Forces Overseas Fund is set out in:
12.1a letter dated 24 April 2006 from Major General WJ Crews (retired) to Mr R Coxon, a copy of which is attached to this statement as Annexure C; and
12.2parts of a letter dated 25 May 2006 from Mr Barry Telford to Mr R Coxon, a copy of which is attached to this statement as Annexure D.
13.There is no evidence that Mr Wooding was formally attached to the Defence Forces.
14.Mr Wooding does not recall being a “member” of AFOF.
15.Nor does he recall undergoing an “accreditation process” administered by the Army. As part of the preparations for the tours, he underwent some training in basic military matters, including weapons handling and firing.
16.There is no evidence that he was allocated with a service number or has a service record. He was provided with a “military identification card”, which he returned to the officer in charge of the Concert Party, Major Doyle, at the completion of the tour (T43/109).
17.At the time of the tours, Mr Wooding took unpaid leave from his position with Channel 7. He was paid the sum of $33.00 per week. This money was given to him by Army officials. He also received a military payment certificate (T34/82). The source of these funds is unknown; it may have been the Army or it may have been AFOF. Some detail is set out at T41/105.
18.Mr Wooding’s name is recorded on the Nominal Roll of Vietnam Veterans (T10/29). He is described as one of the “Persons who visited Vietnam under the auspices of the Australian Forces Overseas Fund and Entertainers” on the nominal roll website.
19.Mr Wooding was also awarded the Vietnam Logistic and Support Medal (T28/73). Details of that medal appear at T29/74-75.
20.Mr Wooding was awarded a certificate from the United States Military Assistance Command, Vietnam in respect of each of his two visits there, attesting to his contribution to the morale and welfare of the military forces in Vietnam (T48/49) [sic].”
application of law
5. I remind myself that a determination of this application is to be made to my reasonable satisfaction pursuant to s 120(4) of the VE Act. (See Ferriday v Repatriation Commission (1996) 42 ALD 526).
6. It is common ground that Mr Wooding does not meet the definition of a “veteran” as defined in s 5 of the VE Act. He was never a member of the Defence Force and was not formally attached to the Defence Force.
7. Mr Wooding’s submission was that he should be treated as a veteran under a Ministerial Determination made under paragraph 5(13)(a) of the VE Act on 18 December 1987 (T9/28). That Determination, made by the then Minister of State for Veterans’ Affairs, relevantly included:
“(2)persons who, as representatives of an approved philanthropic organisation provided welfare services to the Defence Force.”
This Determination defines “an approved philanthropic organisation” as including the AFOF.
8. I was referred to a decision of Edmonds J in Iversen v Repatriation Commission [2006] FCA 942. This decision answered an appeal from a decision of Senior Member Kelly in Re Iversen & Repatriation Commission [2006] AATA 280. In her decision Senior Member Kelly rejected an argument to the effect that Mr Iversen (who also provided entertainment for troops serving in Vietnam under similar circumstances to Mr Wooding) should be treated as a full-time member of the Defence Force serving in an operational area.
9. Senior Member Kelly noted that Mr Iversen rendered courageous and valuable service in performing for the troops in Vietnam; his service was recognised through a listing in the nominal roll of Vietnam veterans and through the awarding of a Logistics Support Medal; he was a member of a group of civilian entertainers who were, in part sponsored by the AFOF and that the AFOF is an approved philanthropic organisation. She nevertheless decided that Mr Iverson was not a representative of AFOF and consequently was not covered by the Ministerial Determination.
10. On appeal Justice Edmonds rejected a submission that Mr Iversen had been a representative of AFOF:
“15. The applicant, in his written submissions, contended that ‘representatives’ as it appears in the Determination should be given a meaning that protects those who were in fact in a war zone and thereby exposed to the risks and circumstances associated with that war. It was submitted that such a ‘factual’ emphasis on the meaning of representative would accord with the beneficial nature of the Act and the Determination made under it. But such a construction goes well beyond the natural and ordinary meaning of the word ‘representative’ as exemplified in the dictionary meanings of the word upon which the applicant himself relies.
16. In his oral submissions, the applicant articulated what is substantively, albeit not in the same terms, a similar argument, namely that if the applicant’s presence in the war zone is only explicable by reference to his participation in a concert tour co-sponsored by the AFOF and the Australian Army, then he can be a representative of the former. That might be so, but such co-sponsorship will not of itself make the applicant a representative of the co-sponsor. Indeed, as the respondent submits, even if the applicant had been an ‘AFOF sponsored’ entertainer rather than an ‘Army sponsored’ entertainer, being sponsored by an organisation cannot be equated with being a representative of that organisation.”
11. I have carefully considered the statement of agreed facts. I have also considered a VRB decision of Milburn-Lloyd dated 30 August 2006. I have reached the view that the only way Mr Wooding could be entitled to benefits under the VE Act would be if his service in Vietnam could be considered to have been performed “as a representative” of the AFOF.
12. Point 9 of the statement of agreed facts indicates that the concert parties were “arranged and sponsored” by the AFOF. However, as mentioned by Justice Edmond in Iversen, such sponsorship “cannot be equated with being a representative of that organisation”. In my view, the term “representative” connotes an entitlement to act on behalf of another. Point 14 of the statement of agreed facts indicates that Mr Wooding does not recall being a “member of AFOF”. On the information before me, I have not been satisfied that Mr Wooding was a representative of that organisation. In these circumstances, Mr Wooding does not fall within the ambit of the 1987 Ministerial Direction. I have not been satisfied that Mr Wooding’s service, although courageous and valuable, satisfies the basic eligibility conditions for payment of a Disability Pension under the VE Act. The decision under review is affirmed.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: ...........J Coulthard..........................................
AssociateDates of Hearing 6/7 September 2006
Date of Decision 26 October 2006
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe (DVA)
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