Wilkins and Repatriation Commission [1999] AATA 79 (12 February 1999)

Last Updated: 28 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 79

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/1521

VETERANS' APPEALS DIVISION )

Re KEITH WILKINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 12 February 1999

Place Sydney

Decision The decision under review is affirmed.

(Sgd) Rear Admiral A R Horton AO

..............................................

Member

CATCHWORDS

VETERANS' AFFAIRS - service pension - qualifying service - service with British Commonwealth Occupation Force (BCOF) - whether incurred danger from hostile forces of the enemy - period of hostilities - ineligibility for New Zealand service medal 1945 - 1949 - no qualifying service

Veterans' Entitlements Act 1986 - s 5B(1), 5C(1), 7A, 36(1), 120(4)

Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

February 1999 Rear Admiral A R Horton AO, Member

1. This is an application by Keith Lewis Wilkins (" the veteran") for review of a decision made on 22 September 1997 by a delegate of the Repatriation Commission ("the respondent"), which affirmed a determination of 28 January 1997, that the veteran did not render qualifying service for the purposes of section 7A of the Veterans' Entitlements Act 1986 ("the Act"). The veteran lodged an application for review with this Tribunal on 5 November 1997.

2. A hearing was held before the Tribunal on 18 December 1998. The veteran represented himself and gave evidence by telephone. Mr R Wallis appeared as advocate for the respondent. The Tribunal had before it the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and received the following exhibits into evidence:

Ex A1 - Letter from the Hon Bruce Scott MP, Minister for Veterans' Affairs to the Hon John Howard, Prime Minister dated 6 August 1998;

Ex A2 - Letter from the RSL Welfare and Benevolent Fund to the veteran dated 28 September 1998

ISSUES BEFORE THE TRIBUNAL.

3. The veteran claims qualifying service as a prerequisite for eligibility for the age service pension. Eligibility for age service pension is established pursuant to subsection 36(1) of the Act which states:-

"36 Eligibility for age service pension

(1) Subject to subsection (4), a person is eligible for an age service pension if the person:

(a) is a veteran: and

(b) has rendered qualifying service; and

(c) has reached pension age."

4. The issue for consideration in this matter is whether the veteran has rendered qualifying service for the purposes of the Act. "Qualifying Service" is defined in s 7A of the Act which relevantly provides:-

"7A Qualifying service

(1) For the purpose of Part III, a person has rendered qualifying service:

(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) subject to subsection (1A), 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

5. Subsection 7A (1A) further states that:-

"Service rendered in an area described in item 3 of Schedule 2 (in column 1) during the period specified in column 2 of that Schedule opposite to that description must be service in respect of which the person has been awarded, or has become eligible to be awarded, a British General Service Medal with the Malaya Clasp."

6. Subsection 5B (1) defines "period of hostilities" relevantly as:-

"(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included);"

FACTS AND EVIDENCE

7. There is no dispute that the applicant is a "veteran" as defined in subsection 5C(1) of the Act.

8. The veteran served in the Royal Australian Navy from 17 August 1939 to 22 October 1940. In that period he served only at HMAS CERBERUS in Victoria, his only sea service being a "training trip into Bass Strait" where, in response to a question from the respondent, he saw no evidence of conflict or enemy forces. The veteran was awarded the Australian Service Medal 1939-45 and the Australian War Medal 1939-45.

9. The veteran subsequently joined the Australian Army on 2 September 1946, serving in Australia until April 1947, when he was posted to Japan for service until 1 January 1949 with the British Commonwealth Occupation Forces (BCOF) as an intelligence linguist. The veteran was attached to the New Zealand Army J Force during his service in the BCOF, but acknowledged that at all times he remained a member of the Australian Army.

10. The veteran's application rests on a number of issues, as defined in the s 37 documents, and as further addressed by the veteran during the hearing:

(a) the inappropriateness of the matter being considered under the Veterans Entitlements Act 1986, when the relevant period of service occurred under earlier Acts;

(b) the evidence by Mr Wilkins as to the dangers and hazards from hostile elements of the civilian population experienced during his service with the BCOF, supported by a statement and two statutory declarations from former servicemen with whom he served in Japan;

(c) the granting of the New Zealand service medal 1946-49 and benefits to New Zealand BCOF members by Royal Warrant as noted in a report of 8 November 1995 in the New Zealand Herald ( Exhibit A1). The veteran strongly holds the view that his attachment to the New Zealand J Force in the BCOF should give him equal rights. The veteran referred to the following extract from the newspaper article: " until this year, no post war government had acknowledged that J force members were on active duty and therefore, that its members were entitled to a medal or war pension". The veteran conceded that he had not seen the Royal Warrant per se, but "the warrant doesn't mention any exclusion, it simply and quite clearly states everyone".

ANALYSIS OF EVIDENCE AND FINDINGS

11. The Veterans' Entitlements Act 1986 is the relevant legislation against which this application must be considered. The veteran's claim was lodged pursuant to this Act, and hence the circumstances of any earlier act in regard to the time frame of the veteran's service is not relevant. Qualifying service as necessary to meet the conditions for age service pension is defined in section 7A.

12. Mr Wilkins rendered service in the context of subparagraph 7A (1) (a)(i) during the 'period of hostilities' as defined between 3 September 1939 and 29 October 1945, but has to meet the criteria under that subparagraph of "incurring danger from hostile forces of the enemy". His service during that period was wholly within Australia, and by his own evidence, and as submitted by the respondent, he did not incur danger. Nor is there any evidence to support any contention that he might have been at risk or in peril of harm from hostile forces as would be required to meet the objective test as defined in Repatriation Commission v Thompson (1988) 82 ALR 352.

13. There is no contention that the veteran meets the conditions of subparagraph 7A (1)(a)(ii) relevant to his later period of service in terms of meeting eligibility for the award of medal(s) resulting from bomb disposal or mine clearance. The respondent submitted that subparagraph 7A (1)(a)(iii) excludes the area in which the veteran served from 1947 to 1949, and in respect of subparagraph 7A (1)(a)(iv), there has not been any determination by the Minister that members of the BCOF rendered warlike service for the purposes of section 7A. The Tribunal is in agreement with these submissions.

14. The remaining issue is the determination of eligibility of the veteran under the conditions of the Royal Warrant for New Zealand BCOF servicemen. Conditions for pension and service eligibility may well be different in New Zealand to those in Australia, but that is irrelevant to this matter, the nub of the issue being that the claim by the veteran, in this instance, can only be considered against the relevant Australian legislation being the Veterans' Entitlement Act 1986. Accordingly, the veteran does not meet the criteria for qualifying service, his period of service with the BCOF having been outside a legislated 'period of hostilities' and he having not incurred 'danger from hostile forces of the enemy', notwithstanding his perception that such danger existed from the civil population.

15. The Tribunal also draws on Exhibit A1, wherein the Minister for Veterans' Affairs elaborated on government policy:

"As a result of a review conducted by the Department of Defence, the government announced in the 1997-98 Budget that all BCOF service up until 30 June 1951 is to be classified as operational service (....for treatment and disability pension)..........

"The first Australian members of the BCOF arrived in Japan some six months after the surrender of the Japanese forces. Consequently, members of the BCOF were not required to take offensive action in which they incurred danger from a hostile force. The Defence review confirmed that BCOF members did not have qualifying service for service pension purposes".

16. The views of the veteran are understandable, but the criteria under which this matter must be decided results from policy considerations, such considerations being defined in the relevant provisions of the legislation. Accordingly, the Tribunal determines that Mr Wilkins has not rendered qualifying service within the meaning of section 7A of the Act, and the decision under review is therefore affirmed.

I certify that this and the 7 preceding pages are a true copy of the decision and reasons for decision herein of Rear Admiral A R Horton AO, Member.

Signed: ............................................................................

Associate

Date/s of Hearing 18 December 1998

Date of Decision 12 February 1999

Representative/Applicant Self Represented

Representative/Respondent Mr R Wallace, delegate of the Department of Veterans' Affairs