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Administrative Appeals Tribunal of Australia |
Last Updated: 14 December 1999
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1997/26
VETERANS' APPEALS DIVISION )
Re SYDNEY LOUIS WASHINGTON EDWARDS
Applicant
And REPATRIATION COMMISSION
Respondent
Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member
Date 13 December 1999
Place Perth
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for disability pension and medical treatment be determined on the basis that he is a "veteran" within the meaning of the Veterans' Entitlements Act 1986.
........ .(sgd S D Hotop)................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - whether applicant a "veteran" - whether applicant rendered "eligible war service" - whether applicant rendered "continuous full-time service (not being operational service) as a member of the Defence Force during World War 2"
Defence Act 1903, Pt III
Veterans' Entitlements Act 1986, ss5C(1), 7(1)(c)
Re Boots and Repatriation Commission (1992) 27 ALD 101
Boots v Repatriation Commission (1993) 42 FCR 108
Repatriation Commission v Kohn (1989) 87 ALR 511
13 December 1999 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member
1. This is an application by Sydney Louis Washington Edwards ("the applicant") for review of a decision of the Veterans' Review Board ("VRB") dated 14 January 1997. In that decision the VRB affirmed a decision of a delegate of the Repatriation Commission ("the respondent"), dated 1 October 1996, that the applicant was not entitled to make a claim for disability pension and medical treatment under the Veterans' Entitlements Act 1986 ("the Act") because he was neither a "veteran" nor a "member of the Forces" within the meaning of the Act.
2. At the request of the parties the Tribunal agreed to decide this matter "on the papers", without holding a hearing. For this purpose the Tribunal had before it the documents ("T documents") furnished by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documents lodged with the Tribunal by the parties:
* copy of "Attestation Form for Persons Voluntarily Enlisted in the Militia Forces", Australian Military Forces, completed by George Charles Binning, October 1934, together with statement of service (Exhibit R1)
* report of Lieutenant Colonel Neil C Smith, dated 17 July 1998 (Exhibit A1)
* report of Professor John McCarthy, Associate Professor and Visiting Fellow, Australian Defence Studies Centre, Australian Defence Force Academy, dated 19 August 1999 (Exhibit R2).
The Issue
3. The only issue raised by the parties for the Tribunal's consideration and determination is whether the applicant is a "veteran", as defined in s5C(1) of the Act, and thereby entitled to make a claim under s14(1) of the Act for a disability pension. If the Tribunal is satisfied, on the material before it, that the applicant is a "veteran" within the meaning of the Act, the proper course would then be for the Tribunal to set aside the decision under review and remit the matter to the respondent for reconsideration in accordance with a direction that the applicant's claim for disability pension and medical treatment be determined on the basis that he is a "veteran" within the meaning of the Act.
The Relevant Statutory Provisions
4. The word "veteran" is defined in s5C(1) of the Act to mean (relevantly):
"(a) a person (including a deceased person):
(i) who is, because of section 7, taken to have rendered eligible war service; ...
...".
Section 7 of the Act relevantly provides:
"(1) ... for the purposes of this Act:
(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; ...
...".
The phrase "continuous full-time service" is defined in s5C(1) of the Act to mean (relevantly):
"(a) in relation to a member of the Defence Force:
(i) service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service; or
(ii) service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or
(iii) service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service; ...
...".
The following relevant definitions also appear in s5C(1) of the Act:
"member of the Defence Force includes a person appointed for continuous full-time service with a unit of the Defence Force";
"unit of the Defence Force means a body, contingent or detachment of the Defence Force";
"Defence Force has the same meaning as in the Defence Act 1903".
5. Part III (comprising ss 30-51) of the Defence Act 1903 deals with the "Defence Force". By s30, the Defence Force consists of 3 arms, namely, the Australian Navy, the Australian Army and the Australian Air Force. By s31, the Army consists of 2 parts, namely, the Permanent Military Forces and the Australian Army Reserve. By s32(1), the Permanent Military Forces consist of 3 forces, namely, the Australian Regular Army, the Regular Army Supplement and the Regular Army Emergency Reserve, and, by s32A(1), the Australian Army Reserve consists of 2 forces, namely, the Active Australian Army Reserve and the Inactive Australian Army Reserve. The Active Australian Army Reserve comprises the former "Active Citizen Military Forces" which in turn formerly comprised, inter alia, the "Militia Forces": see the present s32A(2) and its predecessors. By s45(1), members of the Australian Regular Army or of the Regular Army Supplement are bound to render "continuous full time military service". By contrast, members of the Regular Army Emergency Reserve or of the Australian Army Reserve are not bound to render "continuous full time military service" unless they are called out for such service under s50D, s50E, s50F or s51, or unless they voluntarily undertake to render such service for a specified period and that undertaking is accepted: see ss45(2), (4), 50(1), (3).
Consideration of Relevant Material, Findings on Material Questions of Fact and Determination of Issue
6. In a "Claim by a Veteran or Mariner for Disability Pension and Medical Treatment" form lodged with the Department of Veterans' Affairs ("DVA") on 17 June 1996, the applicant stated that, prior to the commencement of World War 2, he was a member of the Militia Forces and served in a unit of the Australian Army known as "35th Fortress Company" and that, on the day war was declared, he was called up and served on Rottnest Island operating searchlights until he was discharged at Kingston Barracks, Rottnest Island, and that he was then "manpowered" to repair naval vessels and submarines until the end of the War. (T7, pp13-20)
7. Letters from the Soldier Career Management Agency within the Australian Army to the DVA, dated 8 July 1996 and 29 August 1996, stated that searches of the Agency's records had "failed to identify (the applicant) as having served in the Australian Army". (T7, pp24, 25)
8. By letter to the DVA dated 9 December 1996 Robert Sinclair Metcher stated:
"I wish to confirm that Sydney L W Edwards was in fact a voluntary part time member of the militia prior to war being declared.
I saw him many times wearing the uniform of the 35th Fortress Searchlight Company.
I remember that on the day war was declared Sydney Edwards was visiting my home at the South Fremantle Post Office. While he was there a phone call was received for him with an order to report immediately to his company.
I did not see him again for about eight months but was told that he was operating search lights.
Later still I was informed that he had been manpowered because of his trade skills as a fitter and turner and had been serving on Rottnest Island operating searchlights during the previous 7-8 months.
I hope this letter will confirm that Sydney L W Edwards did in fact serve in the voluntary part time militia prior to the war and was called up for duty on the day war was declared.
I served in the RAAF and my service number was 442243." (T7, p39)
9. Following advice from the applicant's then solicitors that the applicant recalled serving with a Mr Binning in 35th Fortress Company, a search of the respondent's records was conducted which confirmed that a George Charles Binning voluntarily enlisted in 35th Fortress Company, Militia Forces, Australian Military Forces, on 11 October 1934 and was called up and enlisted for the duration of the War plus 12 months on 17 May 1940. (Exhibit R1) (The Tribunal understands that Mr Binning died in 1980.)
10. In a report dated 17 July 1998 Lieutenant Colonel Neil C Smith advised the applicant's then solicitors that an examination by him of the Central Army Records Office ("CARO") General (Name) Index (which lists alphabetically all Army personnel who have served "full time" between the early 1900s and 1970) had not revealed anything to substantiate that the applicant had rendered military service in World War 2. Lieutenant Colonel Smith also advised, however, that no "Routine Orders" (which record personnel by unit) relating to 35th Fortress Company are held by CARO, "probably because it was a 'part time' unit." (Exhibit A1)
11. In a report dated 19 August 1999 to the DVA, Professor John McCarthy, Associate Professor and Visiting Fellow, Australian Defence Studies Centre, Australian Defence Force Academy, stated as follows:
"re: Sydney Louis Washington EDWARDS
I have your letter dated 7 July 1999 requesting an investigation into the nature of the Veteran's service with a view to determining If he rendered full time service as a member of the Forces after the beginning of the second world war on 3 September 1939. It is noted that a service number is unknown and that documents relating to service were lost in a fire some years ago. It is realised, however, that photographic evidence does show that Mr Edwards served in the Militia during the nineteen-thirties. It seems also that Mr Edwards was a member of 35th Fortress Company and he argues that on 3 September 1939, the day Australia followed Britain into the war, his unit was ordered to report for immediate duty and embarked for Rottnest Island.
It might be reasonable firstly to comment on the nature of the Australian Militia and to consider what was required of it on the outbreak of war. Secondly an attempt will be made to see if the actions of 35th Fortress Company were aligned with these general requirements.
Until 1929, the Militia was composed of eighteen and nineteen year old men who lived in the cities or largest towns. Service was compulsory, drill was carried out and there was an annual camp of one week. The Militia could not be employed overseas and basically therefore it was a home defence force. [See Craig Wilcox, For Hearths and Homes - Citizen Soldiering in Australia 1854-1945, (Sydney, 1998) for details.] In 1929 as a result of the Depression, compulsory military training was suspended and the Militia functioned on an all volunteer basis. This remained so until after the outbreak of war. It might be concluded therefore that photographic evidence shows that Mr Edwards was a volunteer member of the Militia in the nineteen thirties. In September 1939, the Militia had an authorised strength of some 80,000.
Distinct measures were taken to mobilise the Militia. On 24 August 1939, the Australian government was advised that war with Germany was imminent. On 25 August 1939, senior commanders were warned of a 'state of tension'. On 2 September 1939, militiamen were called out to reinforce the permanent artillery and engineers in coastal forts. On 3 September 1939, the government authorised a 'precautionary mobilisation'. On 5 September 1939 it foreshadowed conscription into the militia and ordered it to move into camp for 15 days. On 13 September 1939, the Military Board recommended that the militia should carry out '... at least one month's continuous camp training'. [John Robertson & John McCarthy, Australian War Strategy: 1939-1945 A Documentary History (St. Lucia. 1985), p.28]. This recommendation was endorsed by the government on 15 September 1939. In October 1939 compulsory training for home service was reintroduced and the government decided unmarried men turning 21 and not employed in war work would be called up to train for a three month period.
There is a record of how 35th Fortress Company responded to the crisis of late August early September 1939. The War Diary has survived: [AWM (Australian War Memorial) 52 5/31/74.] It might be indicative of how the militia functioned to note that it is a most scrappy document written in pencil and not on the recognised Australian war diary form. The names of other ranks are not recorded nor is the nature of their function. Nevertheless it does contain sufficient information which supports the Veteran's recollections of events and confirms that the unit operated in accordance with the general measures for mobilisation outlined above.
35th Fortress Company received notice of the 'state of tension' and on 3 September 1939 carried out a 'precautionary mobilisation' by ordering its members into a sixteen day compulsory camp. The War Diary records for 5 September 1939 'a parade of personnel for embarkation to Rottnest Island'. The War Diary also notes the extension of this camp to thirty days. It seems clear also that the original party which was mobilised on 3 September 1939 experienced ninety days of continuous training. The War Diary entry for 25 February 1940 notes: 'First group of unit personnel marched out on completion of 90 day camp'.
Given the absence of official records it does seem reasonable to argue that the Veteran formed part of the original mobilised contingent to be sent to Rottnest Island. Clearly he had not waited to be conscripted into the militia and as a volunteer possibly of some long standing it is difficult to see why he would not have been in the original number of militia troops sent to man the batteries on Rottnest Island. Batteries are equipped with searchlights and the War Diary mentions their operation. There must be a high level of probability that the Veteran did serve in a full time capacity as a member of the Australian Military Forces from 3 September 1939 and for a period of at least ninety days.
It is noted that the Soldier Career Management Agency can find no record of service by Mr Edwards. While this is unusual it should not necessarily negate the claims which he makes. In 1939, organisation was not as efficient as it is today and neither was record keeping. Witness the War Diary of 35th Fortress Company. At the beginning of 1939, the Army consisted of 2795 regular soldiers backed by 42,895 militiamen. In September 1939, the militia as already mentioned had an authorized strength of 80,000. One suspects it would be difficult to keep a comprehensive and inclusive record of them all and in thirty years of research experience one has encountered many errors of names, numbers, and units made by orderly room clerks and other event recorders. The evidence available may point that a clerical error of some kind was made sixty years ago.
...". (Exhibit R2)
12. The Tribunal is conscious of the absence of any official record of the applicant's service with 35th Fortress Company but is satisfied, on the basis of the abovementioned reports of Lieutenant Colonel Smith and Professor McCarthy, that that does not necessarily establish that the applicant did not serve with 35th Fortress Company. In this regard, the Tribunal notes that CARO holds no Routine Orders (ie personnel records) in relation to 35th Fortress Company (see Lieutenant Colonel Smith's report) and that official Army records of members of the Militia Forces (of which 35th Fortress Company was a unit) in 1939 may well have been incomplete (see Professor McCarthy's report).
13. On the basis of the whole of the material before the Tribunal, and having regard to
* the applicant's statements regarding his service with 35th Fortress Company on Rottnest Island immediately after the commencement of World War 2 on 3 September 1939, made in his disability pension claim form (T7, pp 13-20 - see paragraph 6 above)
* the contents of Mr R S Metcher's letter of 9 December 1996 (T7, p39 - see paragraph 8 above)
* the fact that Mr G C Binning (with whom the applicant recalled having served in 35th Fortress Company) is officially recorded as having been a member of 35th Fortress Company prior to and at the commencement of World War 2 (Exhibit R1 - see paragraph 9 above)
* the contents of Professor J McCarthy's report of 19 August 1999 (Exhibit R2 - see paragraph 11 above)
the Tribunal is reasonably satisfied, and finds, that
* the applicant was a member of 35th Fortress Company prior to and at the commencement of World War 2 on 3 September 1939;
* 35th Fortress Company was, prior to and at the commencement of World War 2 on 3 September 1939, a part-time unit of the Militia Forces, Australian Military Forces;
* on 3 September 1939, the applicant, as a member of 35th Fortress Company, was called up for service and was required to serve on Rottnest Island on a full-time basis as a member of the Australian Military Forces from 5 September 1939 for a continuous period of at least 90 days.
14. The question remains whether the applicant rendered "continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947" within the meaning of s7(1)(c) of the Act. If he did he will, by reason of s7(1)(c) of the Act, be taken to have rendered "eligible war service" at that time and will, accordingly, satisfy the definition of "veteran" in s5C(1) of the Act.
15. The definition of the phrase "continuous full-time service" in s5C(1) of the Act has been described as "curious" and "odd" by the Federal Court of Australia in that it refers merely to "service ... of the kind known as continuous full-time military service" without indicating the source or repository of such knowledge: see Repatriation Commission v Kohn (1989) 87 ALR 511 at 515; Boots v Repatriation Commission (1993) 42 FCR 108 at 114-115. In the Tribunal's opinion it is appropriate to have regard - as the Tribunal did in Re Boots and Repatriation Commission (1992) 27 ALD 101 at 106-107 - to provisions of the Defence Act 1903 in which the phrase "continuous full-time (military) service" appears.
16. It is clear from the relevant provisions of Part III of the Defence Act 1903 (which were summarised in paragraph 5 above) that, although only members of the Australian Regular Army or of the Regular Army Supplement are bound by reason of their appointment at all times to render "continuous full-time military service", members of other parts of the Australian Army, including the Australian Army Reserve, may also render "continuous full-time military service" in certain circumstances, namely, where they are called out for such service under s50D, s50E, s50F or s51 of that Act, or, by reason of s45(4) or s50(3) of that Act, where they voluntarily undertake to render such service for a specified period and that undertaking is accepted. In other words, under Part III of the Defence Act 1903 the concept of "continuous full-time military service" is not peculiar to members of the Australian Regular Army or of the Regular Army Supplement.
17. The Tribunal has also had regard to the provisions of Part III of the Defence Act 1903 in force at the time of the applicant's service with 35th Fortress Company during World War 2 and notes that, although the similar phrase "continuous military service" appeared only once, in relation to members of the "Active Permanent Military Forces" (s31(2)), there was nothing in those provisions which expressly made that kind of service exclusive to members of the "Active Permanent Military Forces". Indeed, s46 authorised the Governor-General, in time of war, to call out the "Citizen Forces" (including the "Militia Forces") for active war service and, in that event, the "Citizen Forces" were, by s47, liable to be employed in active war service during the relevant period.
18. Having regard to the abovementioned statutory provisions, the Tribunal is reasonably satisfied, and finds, that the applicant's service on Rottnest Island on a full-time basis as a member of the Australian Military Forces from 5 September 1939 for a continuous period of at least 90 days - as found by the Tribunal in paragraph 13 above - falls within the description "service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service" for the purposes of the definition of "continuous full-time service" in s5C(1) of the Act.
19. The Tribunal also finds that the abovementioned "continuous full-time military service" was rendered by the applicant as a member of the Defence Force (within the meaning of the Defence Act 1903) during World War 2, for the purposes of the relevant description of "eligible war service" in s7(1)(c) of the Act. The Tribunal notes that the definition of the phrase "member of the Defence Force" in s5C(1) of the Act is an inclusive, and not an exhaustive, definition. Accordingly, the fact that the applicant may not have been "appointed for continuous full-time service with a unit of the Defence Force" does not preclude his being regarded as a "member of the Defence Force" within the meaning of s7(1)(c) of the Act.
20. Accordingly, the Tribunal finds that the applicant is a person who is, because of s7(1)(c) of the Act, "taken to have rendered eligible war service" and is, therefore, a "veteran" as defined in s5C(1) of the Act.
Conclusion
21. The Tribunal concludes, therefore, that the applicant, being a "veteran", is entitled to make a claim for disability pension under s14 of the Act. Whether the applicant is eligible to receive such a pension will, of course, depend on whether he "has become incapacitated from a war-caused injury or a war-caused disease", as provided in s13(1) of the Act - a matter that the Tribunal is presently unable, and was not called upon in this proceeding, to decide.
Decision
22. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for disability pension and medical treatment be determined on the basis that he is a "veteran" within the meaning of the Act.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member and Brigadier R D F Lloyd, Member
Signed: Catherine Osborn .....................................................................................
Associate
Date/s of Hearing N/A
Date of Decision 13 December 1999
Counsel for the Applicant -
Solicitor for Applicant -
Counsel for the Respondent Mr C Ponnuthurai
Solicitor for the Respondent -
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