Park and Repatriation Commission [2011] AATA 31 (27 January 2011)

Last Updated: 27 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4200

VETERANS' APPEALS DIVISION		)
	Re		ARCHIBALD PARK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Date 27 January 2011

Place Sydney

Decision

The Applicant did not render qualifying service as defined by section 7A(1) and thus he does not meet the criteria under subsection 85(4B) of the Act. He is therefore not entitled to a ‘Gold Card’, and the decision under review is accordingly affirmed.

......................[sgd]........................
Ms N Isenberg
Senior Member

CATCHWORDS

Application for a Gold Card – Eligibility for treatment under s 85(4B) - Qualifying Service under subsection 7A(1) – Whether Applicant allotted for duty in operational area under s 7A(1)(a)(iii) – Whether Applicant rendered warlike service under s 7A(1)(a)(iv) – Applicant did not render qualifying service – Decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 5C(1), 7A(1)(a)(iii), 7A(1)(a)(iv), 85(4B), Sch 2

REASONS FOR DECISION

	Ms N Isenberg, Senior Member
BACKGROUND

1. The Applicant, Archibald Park, who was born in 1937, made a claim for a “Gold Card”[1] on 27 April 2010. On 9 June 2010, a Delegate of the Repatriation Commission refused Mr Park’s claim on the basis that he did not render Qualifying Service in accordance with subsection 7A(1) of the Veterans’ Entitlements Act 1986 (Cth) (the VEA). The refusal was affirmed on internal review on 12 August 2010. Mr Park seeks review of that decision.
2. Mr Park served in the Royal Australian Navy from 9 January 1956 to 30 June 1960. He entered service as a Royal Australian Navy Serviceman at HMAS Rushcutter. After initial training at HMAS Penguin, he was posted to HMAS Sydney, according to his records, from 13 February 1956 to 5 April 1956, although Mr Park thought he remained with HMAS Sydney until sometime in May 1956. Upon discharge he held the rank of Mechanical Engineering Class 2.

LEGISLATIVE SCHEME

3. Subsection 85(4B) of the VEA determines the eligibility of claimants who served in a post-World War II period for “treatment” under Part V of the VEA for “any injury suffered, or disease contracted”, by the veteran. In other words, it determines such a claimant’s eligibility for a Gold Card. The subsection provides that to be eligible, a veteran must be 70 or over and have rendered “qualifying service”.
4. Relevantly, a person has rendered qualifying service if they have rendered service outside Australia individually or as a member of a unit “allotted for duty”, in circumstances set out in Schedule 2 of the VEA: subsection 7A(1)(a)(iii). The Schedule describes operational areas and corresponding time periods. The meaning of “allotted for duty” is determined by “written instrument” retrospectively or otherwise.
5. A person may also have qualifying service if they have rendered “warlike service”: subsection 7A(1)(a)(iv). Unless the contrary intention appears, subsection 5C(1) defines “warlike service” as follows:

warlike service means service in the Defence Force of a kind determined in writing by the Minister for Defence to be warlike service.

ISSUES

6. The Respondent contends that Mr Park is ineligible for a Gold Card as his service does not meet the definition of “qualifying service” in subsections 7A(1)(a)(iii) (“allotted for duty”), or 7A(1)(a)(iv) (“warlike service”).
7. It is Mr Park’s contention that he is eligible for a Gold Card because his service was “warlike”.
8. The question before the Tribunal, therefore, is whether Mr Park rendered “qualifying service” as defined by subsection 7A(1)(a)(iii) or 7A(1)(a)(iv) of the VEA which would entitle him to a Gold Card under subsection 85(4B).

EVIDENCE

9. Mr Park wrote on his application for a Gold Card that he served overseas in waters north of Australia between 13 February 1956 and 5 April 1956 on HMAS Sydney but conceded that he did not experience danger from hostile forces of the enemy.
10. In a letter to the Department of Veterans’ Affairs (the Department) dated 29 July 2010, Mr Park wrote that his period of service onboard HMAS Sydney “covered the Malayan Emergency”, which was declared on 18 June 1948 and officially declared over on 31 July 1960. Australian forces were involved in the Malayan Emergency from 1950[2].
11. In a letter dated 29 July 2010 to the Department, Mr Park wrote:

“I believe that during my period of RAN service that I was in fact involved in actions that were indeed warlike...The actions that we participated in were full-scale military in nature...the Sydney was an operational aircraft carrier with escorting fleet support...the ship operated in waters outside of Australia undergoing functions that maintained a high level of warlike capability.”

12. In his statement to the Tribunal Mr Park said that a former colleague who had also served aboard HMAS Sydney, in the same division and in the same year, albeit several months later, had become entitled to a Gold Card and it was for that reason that Mr Park decided to test his own eligibility. He observed that his colleague’s time included about a week in September in waters categorised as operational. Ironically, he had spent all of that time in sick bay with the German measles. During that time there was no threat, fear or conflict. Mr Park observed that during his own service HMAS Sydney operated as an aircraft carrier whereas, by the time of his colleague’s service later in the year, flying had ceased.
13. In his written submissions he explained the nature of his service aboard HMAS Sydney. In essence, the ship’s company was in training for the conflict to come and the training itself involved risk. There was a constant level of alert throughout the whole ship, especially involving the flying activities. He referred to the concerns in regard to the international political tensions in the region during this period, viz., Korea, Malaya, Indonesia and later, Vietnam.
14. He submitted that the purpose of the military at the time of his service aboard HMAS Sydney was to prepare for the possibility of active engagement, and this should be considered to have been warlike.
15. At the time, HMAS Sydney was the RAN’s senior warship and its only aircraft carrier. It was at a high level of preparedness because of the conflict in our region, and should not be excluded from being considered as ‘warlike service’, he submitted. Some of the ship's company had served in World War II and many had served in flying operations during the Korean War only a couple of years previously. It meant that "warlike" was not absent from their preparation. Their role at sea was to commit to attack which was unlikely to be achieved by other than "warlike service".
16. He referred to the definition of ‘warlike service’ and considered it ‘remarkable’ that the definition does not mean "service which is like that of service of a kind during war". He submitted that it is incumbent on governments to guarantee that its defence forces are at a constant state of readiness which he thought could only be achieved through warlike service.
17. The Respondent had submitted that the definition provided a “fixed meaning", but Mr Park submitted that, in fact, the phrase was meaningless because it relied on Ministerial Determination, rather than an assessment of what had occurred.
18. He queried how the Minister was able to make a determination without knowing the nature of Mr Park’s service and questioned as to whether there was criteria.
19. Mr Park appreciated the difficulty in his application, and acknowledged that a different approach to his application or a direct referral of his concerns to the relevant Minister for consideration and determination may be required.
    

CONSIDERATION

20. Whether Mr Park’s service aboard HMAS Sydney during the Malayan Emergency is “qualifying service” as defined by subsection 7A(1)(a)(iii) or 7A(1)(a)(iv) will be considered in turn.

WAS MR PARK “ALLOTTED FOR DUTY” IN AN “OPERATIONAL AREA”?

21. Although Mr Park served in the Royal Australian Navy for over four years, the only period which is relevant under subsection 7A(1)(a)(iii) is that during which Mr Park was serving overseas aboard HMAS Sydney in waters north of Australia (13 February to April or May 1956). Firstly, in order to fall within the definition of “qualifying service” the service must have occurred in an area described in Schedule 2 of the Act during a corresponding period also specified. The area of Malaya, including the waters contiguous to the coast of Malaya for a distance of 18.5 kilometres seaward from the coast is an “operational area” for the period from and including 29 June 1950 to and including 31 August 1957 (Schedule 2, Item 2).
22. In order to fall within the definition of “qualifying service” Mr Park’s service must have been rendered 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 the operational area: subsection 7A(1)(a)(iii). The “Instrument for Allotment of Persons under the Veterans’ Entitlements Act 1986 – Malayan Emergency 29 June 1950 to 31 August 1957 Schedule 2 Item 2” deems Defence Force units aboard HMAS Sydney from 21 September 1956 to 28 September 1956 and from 2 October 1956 to 13 October 1956 to be “allotted for duty” in the operational area described in Schedule 2 Item 2 of the Act. Mr Park’s service on HMAS Sydney does not fall within either of these periods. It cannot be said that he was allotted for duty in the operational area.
23. Thus Mr Park was not allotted for duty in an operational area. He is unable to rely upon subsection 7A(1)(a)(iii) in support of his claim for a Gold Card.

DID MR PARK RENDER WARLIKE SERVICE?

24. As I indicated at the hearing, whether or not Mr Park’s service in the RAN meets the definition of “warlike service” in the Act depends entirely upon whether the service has been determined in writing by the Minister for Defence to be warlike, irrespective of whether the personnel themselves may have considered the service to be ‘warlike’. In this I have no discretion.
25. Many determinations in writing have been made that particular service is “warlike”. For example, service in Vietnam (Southern Zone) from 12 January 1973 to 29 April 1975 has been determined by instrument to be “warlike” for the purposes of the Act. More recently, I was informed by the Respondent’s representative, service in East Timor at the time of its first elections had been determined to be ‘warlike’. No such determination exists in relation to the Malayan Emergency, or in relation to any of the service rendered by Mr Park.
26. In the absence of such a determination, Mr Park cannot be said to have rendered warlike service which meets the definition of “qualifying service”. He is unable to rely upon subsection 7A(1)(a)(iv) in support of his claim for a Gold Card.

CONCLUSION

27. Mr Park observed that his colleague had been unaware for 50 years that he had rendered qualifying service, and observed the irony that his colleague had, in any event, spent his entire qualifying service in the ship’s sick berth.
28. The Respondent’s representative advised that it was only in the last 10 years or so that the service aboard HMAS Sydney during two voyages in September and October 1956 had been recognised as qualifying service. He agreed that changes to the definition of qualifying service occur with some regularity. This particularly occurs with ships’ voyages. These changes, as with many changes to entitlement under the VEA, predominately occur as a result of lobbying by Ex-Service Organisations.
29. As I have said, I am bound by the legislation as it stands. It is not for me to comment if, applying some dictionary or commonsense meaning to the expression, Mr Park’s service aboard HMAS Sydney might amount to ‘warlike service’. Armed with more detail about HMAS Sydney’s role during that time, Mr Park, or others similarly interested or affected, may consider an approach to the appropriate Minister to be helpful.

DECISION

30. Mr Park did not render qualifying service as defined by section 7A(1) and thus he does not meet the criteria under subsection 85(4B) of the Act. He is therefore not entitled to a ‘Gold Card’, and the decision under review is accordingly affirmed.
    

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: .......................[sgd].........................................................

Associate

Date of Hearing 24 January 2011

Date of Decision 27 January 2011

Applicant Self Represented

Representative for the Respondent Mr N Bunn, Repatriation Commission

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[1] The term “Gold Card” refers to an identification provided to a person who is eligible for treatment for all injuries or diseases under section 85 of the Veterans’ Entitlements Act 1986 (Cth).
[2] “Malayan Emergency, 1950-60”, Australian War Memorial: www.awm.gov.au/atwar/emergency.asp