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Federal Court of Australia |
Last Updated: 25 February 1999
Nolan v Repatriation Commission [1999] FCA 130
Veterans' Entitlement Act 1986 (Cth) ss 5C(1), 5R(2), 7A, 35B
Geneva Conventions Act 1957 (Cth) Sch 3,A(4)
Standard Oil Co of California v Johnson [1942] USSC 132; 316 US 481 (1942) referred to
United States v Hopkins [1976] USSC 138; 427 US 123 (1976) referred to
Army and Air Force Exchange Service v Sheehan [1982] USSC 103; 456 US 728 (1982) referred to
Joseph v Repatriation Commission (1991) 100 ALR 549 discussed
Boots v Repatriation Commission [1993] FCA 178; (1993) 42 FCR 108 referred to
Re Marinucci and Repatriation Commission (1991) 23 ALD 632 discussed
HELEN FLORENCE NOLAN v REPATRIATION COMMISSION
NG 343 OF 1998
O'LOUGHLIN J
ADELAIDE (HEARD IN SYDNEY)
24 FEBRUARY 1999 IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Appellant AND: Respondent JUDGE:
NEW SOUTH WALES DISTRICT REGISTRY NG 343 OF 1998
HELEN FLORENCE NOLAN
REPATRIATION COMMISSION
O'LOUGHLIN J DATE OF ORDER: 24 FEBRUARY 1999 WHERE MADE: ADELAIDE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 343 OF 1998 |
|
BETWEEN: | HELEN FLORENCE NOLAN
Appellant |
|
AND: | REPATRIATION COMMISSION
Respondent |
|
JUDGE: | O'LOUGHLIN J |
| DATE: | 24 FEBRUARY 1999 |
| PLACE: | ADELAIDE (HEARD IN SYDNEY) |
1 The appellant, Helen Florence Nolan ("Ms Nolan"), an Australian National, served with an American body called the Army and Air Force Exchange Service ("AAFES") in Vietnam from 31 December 1968 to 21 April 1970. In 1996 she wanted to establish that she had rendered "qualifying service" as that term is defined in the Veterans' Entitlement Act 1986 (Cth) ("the Act"). She claimed that she was then suffering from a post-traumatic stress disorder which, so she said, was attributable to her experiences whilst working in Vietnam. On 2 October 1996, Ms Nolan lodged a formal application to have her qualifying service determined but, two days later, a Delegate of the Repatriation Commission decided that she was not a "veteran" within the meaning of that word as it is defined in subs 5C(1) of the Act. The Delegate had come to that conclusion on the ground that Ms Nolan was not a member of a defence force that had been established by an allied country. A review of the Delegate's decision was conducted under s 57A of the Act and, on 5 March 1997, the decision was confirmed.
2 Ms Nolan, having applied unsuccessfully to the Administrative Appeals Tribunal ("the Tribunal") to review the respondent's decision, now appeals to this Court against the Tribunal's decision.
The Army and Airforce Exchange Service
3 Ms Nolan was employed by the AAFES in several locations in Vietnam; that organisation is commonly referred to as "the PX". An outline of the history and structure of the organisation, including an outline of its activities, is contained in the reasons of the Tribunal. They are set out hereunder:
4 Counsel for the appellant referred to three decisions of the United States Supreme Court: Standard Oil Co of California v Johnson [1942] USSC 132; 316 US 481 (1942), United States v Hopkins [1976] USSC 138; 427 US 123 (1976) and Army and Air Force Exchange Service v Sheehan [1982] USSC 103; 456 US 728 (1982). Each of these cases contributes to a further understanding of the operation and status of the AAFES and those who work for it. The following facts can be extracted from those cases:
"8. The Army and Air Force Exchange Service (AAFES) has been known by this name since 26 July 1948. According to its home page on the Internet, it was established on 25 July 1895 when a General Order was issued by the War Department of the United States of America, directing Post Commanders to establish an exchange at every post where practicable. The home page explains that this General Order set the standard for the concept and mission of today's exchange service. On the basis of the evidence put before us, it would seem likely that the organisation continues to be constituted only by an administrative arrangement with the US Department of Defence. As such, it is sometimes referred to as an agency of that Department, although perhaps this is not an accurate use of the word agency according to common US Government parlance.
9. The service operates in two theatres, namely in Europe and in the Pacific. The Pacific Exchange Service (PACEX) is divided into various strands such as Japan Regional Exchange, Hawaii Regional Exchange, Korean Exchange and Vietnam Regional Exchange. These bodies are again subdivided into area exchanges. At the relevant time in Vietnam, there were exchanges known as the Cam Ranh Bay Area Exchange, Da Nang Area Exchange, China Beach Area Exchange and so on. According to the home page, all of these area exchanges have been referred to as the PX since 1919.
10. The organisation provides retail services to members of the U.S. (and sometimes other) armed forces. In the more remote exchanges, the goods sold would be basic comfort goods. However, the organisation now has many outlets and products. It has 10,878 facilities throughout the world, supporting 25 separate businesses in 25 countries and overseas areas, as well as in every State in the United States. These facilities include, 1,423 retail outlets and 218 military clothing stores on army and air force installations around the world. AAFES also runs 1,809 food facilities, mobile units, snack bars, name brand fast food franchises and concession operations. Other AAFES activities include theatres, personal service concessions, vending centres, class 6 stores and the overseas school lunch program which serves approximately 27,000 lunches daily to Department of Defence school children.
11. Although it is sometimes described as an agency of the US Department of Defence, the AAFES is clearly not part of the regular naval, military or air forces of the United States. It employs some members of those forces. It also employs civilians who are non-combatants. It is essentially self funding from cash flow. It does not depend upon funds appropriated by Congress. Employment of uniformed personnel does not make it a segment of the army. The evidence of Dr Grey, a specialist military historian, was that at the relevant time, there were five types of PX staff in Vietnam:
(a) Officers and enlisted personnel from the two services concerned;
(b) US civilians posted from the United States known as US universal salary plan exchange employees;
(c) locally engaged US civilians who were often family members of US officials;
(d) third country nationals recruited from various parts of the region such as the applicant; and
(e) local nationals, that is to say Vietnamese civilians."
* Exchanges are created and administered pursuant to the general authority granted to the Secretary of the Army and the Secretary of the Air Force by Statute.
* Exchanges operate under regulations of the Secretary of War pursuant to Federal Authority.
* In 1970 the Congress of the United States amended the Tucker Act, 28 U.S.C. 1346 so as to provide that:
* Exchanges are arms of the government, deemed by it essential for the performance of governmental functions; they are integral parts of the War Department.
"For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service . . . should be considered an express or implied contract with the United States."
* The commanding officer of an Army Post has complete authority to establish and maintain an exchange; he details a post exchange officer to manage its affairs.
* The AAFES is a non-appropriated fund instrumentality of the United States, that is, one that does not receive funds by congressional appropriation.
* Although the government assumes none of the financial obligations of an exchange, government officers handle, and are responsible for, all funds of the exchange.
* Profits of an exchange are not distributed; they are used to improve the soldiers' mess, to provide various types of recreation, and, in general, to add to the pleasure and comfort of the troops.
* The regulations governing the AAFES state that ordinary employees are deemed to be employees of an instrumentality of the United States and hold their positions by appointment.
* Employees of the AAFES can also be employed by contract in lieu of appointment; a contract may be an employment contract or a "service contract" which AAFES regulations define as meaning:
"A contract whereby a contractor performs a service for AAFES off a military installation, such as laundry, dry cleaning, photo processing, and repair service. This type of contract may also include procurement of direct services such as janitorial and window cleaning service."
The Facts
5 Ms Nolan joined the AAFES as a result of her responding to an advertisement in The Sydney Morning Herald in 1968. The position that had been advertised was for a secretary in the exchange service. She was interviewed by a uniformed soldier in Sydney and, after being accepted for the position, was flown to Vietnam at the expense of the United States Army. The Army also arranged for her visa. In Vietnam, she was inducted by a uniformed person, given details of her duties and issued with a card for identification. That card was described by the Tribunal in its reasons as a "US Department of Defence non-combatant's certificate of identity" ("the identity card"); that card contained the following endorsement:
6 The rank to which Ms Nolan was entitled was that of a non-commissioned officer. For the purposes of the Geneva Convention, Ms Nolan's grade or status was, therefore, that of a non-commissioned officer in the United States Army. According to the findings of the Tribunal, that did not mean that she was, in fact, a non-commissioned officer in the army - the Tribunal found that it "simply indicated the level of treatment she was to be accorded if an appropriate situation arose".
"THE BEARER OF THIS CARD IS A CIVILIAN NONCOMBATANT SERVING WITH THE ARMED FORCES OF THE UNITED STATES, WHOSE SIGNATURE, PHOTOGRAPH AND FINGERPRINTS APPEAR HEREON. IF THE BEARER OF THIS CARD SHALL FALL INTO THE HANDS OF THE ENEMIES OF THE UNITED STATES HE SHALL AT ONCE SHOW THIS CARD TO THE DETAINING AUTHORITIES TO ASSIST IN HIS IDENTIFICATION. IF THE BEARER IS DETAINED HE IS ENTITLED TO BE GIVEN THE SAME TREATMENT AND AFFORDED THE SAME PRIVILEGES AS AN INDIVIDUAL IN THE GRADE, RATE OR RANK OF THE MILITARY SERVICE OF THE UNITED STATES INDICATED BELOW, WITH ANY AND ALL RIGHTS TO WHICH SUCH PERSONNEL ARE ENTITLED UNDER ALL APPLICABLE TREATIES AGREEMENTS AND THE ESTABLISHED PRACTICE OF NATIONS."
7 The Tribunal made several other findings of fact, all of which are important in helping to understand the nature of Ms Nolan's duties whilst she was in Vietnam. For example, she was under the direct control of the United States military in that she was bound to obey any general curfews and any military rules that applied to her. Her supervisors within the PX included service personnel as well as civilians. Her salary was paid directly by the United States Department of Defence into a bank account in San Francisco and if she needed funds locally the military issued vouchers for her use. She was in danger on a number of occasions; in fact, on one such occasion she was injured and was taken to a military hospital.
8 The Tribunal also found that whilst employed by the PX Ms Nolan did not wear a uniform nor was she required to do so. She did not carry a military weapon nor was she trained in the operation of any such weapon.
The Law
9 Section 35B of the Act is found in Div 2 of Pt III; that is the Part that deals with Service Pensions. Subsection 1 of that section introduces the concept of "qualifying service" by saying that:
"A veteran who wants to establish that he or she has rendered qualifying service must make a proper claim for a determination that he or she has rendered such service."The word "veteran" when used in Pt III of the Act includes an "allied veteran": subs 5C(1).
10 Section 7A of the Act sets out various tests, compliance with anyone of which will mean that a person has rendered qualifying service. The only provision that would apply to Ms Nolan in par 7A(1)(c). It is in the following terms:
11 To be entitled to a veteran's pension under Australian law therefore, Ms Nolan must qualify as an "allied veteran".
"(1) For the purposes of Part III, a person has rendered qualifying service:
(a) ...
(b) ...
(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."
12 An allied veteran is defined in subs 5C(1) as a person:
13 In terms of par (a) of the definition of "allied veteran", the United States of America was "an allied country" but was Ms Nolan a person who had been appointed as "a member of the defence force established by an allied country"? (It was not suggested that she had ever "enlisted").
"(a) who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b) who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c) in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(d) in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia."
14 Subsection 5C(1) defines the expression "defence force established by an allied country" as meaning:
15 It is common ground that the only means by which Ms Nolan could come within that definition would be by a finding that the PX was an "auxiliary service" of the United States regular military forces.
"(a) the regular naval, military or airforces; and
(b) the nursing or auxiliary services of the regular naval, military or airforces of the country; and
(c) the women's branch of the regular naval, military or airforces;
raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d) were formally appointed to, or enlisted in, those forces or services; and
(e) were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f) were required to carry arms openly; and
(g) were subject to the rules and conventions of warfare."
16 The obligation to wear a uniform or insignia and to carry arms openly as provided for in pars (e) and (f) of the definition of "defence force established by an allied country" are qualified by the provisions of subs 5R(2) of the Act. It provides:
17 The fundamental proposition that is to be extracted from the legislation is that a "veteran" can include an "allied veteran" so long as the "allied veteran" fulfils the requirements of the legislation. Initially one looks to the definition of "allied veteran" and moves from it to the definition of "the defence force established by an allied country"; (to avoid having to repeat that lengthy term I will sometimes refer to it as "the definition"). At that stage "the definition" establishes (among other things) an obvious "military" aspect. The force or services must be raised and operated "with regular military-like lines of command"; its members must wear uniforms or insignia, carry arms openly and be subject to the rules and conventions of warfare. However, and within that context, one must bear in mind that the definition of "allied veteran" is modified by subs 5R(2). If the person satisfies the Commissioner that she or he was not required to wear a uniform or insignia or to carry weapons and if the Commissioner is satisfied that it would have been unreasonable to so require her or him - but the person otherwise meets the tests in "the definition" --then, but only then, the Commissioner must determine that the person is "for the purposes of the definition of allied veteran" to be treated "as a person who has been appointed or enlisted as a member of the defence force established by that allied country or that Government-in-exile."
"(2) If a person who is a claimant for an age service pension or an invalidity service pension, satisfies the Commission:
(a) that the person had been appointed or enlisted as a member of the services or forces of
(i) an allied country, being forces or services of a kind referred to in the definition of defence force established by an allied country; or
(ii) the government in exile of an allied country, being forces or services of a kind referred to in subsection 5C(3); and
(b) that those forces or services were raised and operated in such a manner that the members of those forces or services:
(i) were formally appointed to, or enlisted in, those forces or services; and
(ii) were subject to the rules and conventions of warfare;
and
(c) that the person was not required, as such a member, to wear a uniform or insignia distinguishing the person as a member of those forces or services or to carry arms at all or to carry arms openly; and
(d) that it would have been unreasonable, having regard to the conditions existing, at the time the person served in those forces or services, in the parts of that country in which the person so could serve, for the person to have been required to wear a uniform or insignia or to carry arms or to carry arms openly;
the Commission must determine that the person is, for the purposes of the definition of allied veteran in subsection 5C(1) to be treated as a person who has been appointed or enlisted as a member of the defence force established by that allied country or that government-in-exile.
18 Subject to determining the critical issue, that is, did Ms Nolan come within the definition of "an allied veteran", the balance of the factors that are mentioned in par 7A(1((c) do not appear to be in contention. Thus, if she is found to be "an allied veteran" it will be because she was "a member of the defence force established by an allied country"; there is no dispute that the United States is and was an allied country, and it is accepted that the forces of Australia were engaged in the Vietnam war at the time when Ms Nolan was serving in Vietnam. It can also be accepted that in this period Ms Nolan rendered, "in connection with a war or war-like operations ... service ... being service in respect of which [Ms Nolan] incurred danger from possible forces of the enemy."
19 Thus the debate in this case centres upon the definition of "allied veteran" and if it be accepted that Ms Nolan "rendered continuous full-time service ... during a period of hostilities" was she, nevertheless a person who had been appointed as a member of "the defence force established by an allied country".
The decision of the Tribunal
20 Before the Tribunal, Ms Nolan submitted that she had earned "qualifying service" because of the following factors:
* she was an allied veteran in that she had been appointed as a member of the defence force established by the United States of America;
* the PX was an auxiliary service of the regular naval, military or airforce raised by an allied country;
* the PX was subject to the rules and conventions of warfare but it was operated in such a manner that Ms Nolan was not required to wear a uniform or to carry arms: (see par 5R(2)(c) of the Act);
* it would have been unreasonable, having regard to the conditions existing at the time when Ms Nolan served in the forces in Vietnam, for her to have been required to wear a uniform or insignia or to carry arms or to carry arms openly: (see par 5R(2)(d) of the Act.
21 The Tribunal rejected these arguments, holding that the references to "forces" and "services" in the definition of "defence force established by an allied country" were not intended to refer to a service such as the PX. The Tribunal relied upon the evidence of Dr Grey (which was uncontested) "that in military parlance, the term "auxiliary service" was intended to denote a formed body of uniformed personnel that was not part of the mainstream forces but was generally subject to military discipline." Dr Grey is an Associate Professor in History in the School of History, University College, Australian Defence Force Academy, Canberra. His speciality is Military History and he is the author or editor of twelve books in the field of modern military history. It was Dr Grey's opinion that the AAFES was not a unit of the United States forces; he regarded it "an administrative service within the Department of Defence". Nor did he consider it to be an "auxiliary service". His evidence on that subject under cross examination was as follows:
The Notice of Appeal
"Well the legislation is silent on a definition of the word auxiliary but I will assist you here with the ordinary dictionary meaning and that is a person or thing that gives help, would you agree with that? ... I would suggest that that is a very broad definition and not necessarily the definition that most military people would accept auxiliary services to mean. It has a fairly precise organisational meaning in many armed forces. For example women's armed services, that is women in uniform were generally regarded for much of the 20th century as being auxiliary services to the main armed forces. They were uniformed, they were enlisted, they were under military discipline but they were nonetheless regarded as auxiliary services and in military organisational terms that would be the generally accepted meaning of an auxiliary service. It is a full body of uniform personnel that is not generally part of the main regular forces. Often it's only raised in wartime.
So would you agree that Ms Nolan worked for the auxiliary services? ... Under my definition just given, no I would not.
Because your definition is that the services that Ms Nolan worked for did not provide assistance or support to the US army and airforce. Is that what you are saying? ... No. What I've said is that an auxiliary service is one that is a formed body, a uniformed personnel generally enlisted and subject to military discipline.
On what authority do you rely on for drawing that definition? Where does that come from? ... It comes from my understanding of the organisation of auxiliary services in Western Armed Forces.
So that is your own understanding? ... It's my own understanding but I think you would find that it's one that would be broadly shared by military historians of the subject, yes."
22 The aspects of the Tribunal's decision that were challenged by Ms Nolan in her amended Notice of Appeal may be summarised in the following manner:
* On its true construction the term "auxiliary services of the regular naval, military or airforces of the country" appearing in the definition of "defence force established by an allied country" included the AAFES and, accordingly, she was a member of the services or forces of an allied country, ie, the United States of America, thereby satisfying the requirements of subpar 5R(2)(a)(i) of the Act;
* On the true construction of the word "appointed" appearing in subpars 5R(2)(a)(i) and (b)(i) of the Act, it applied to members of AAFES as that service was raised and operated in such a manner that its members, including Ms Nolan, were formally appointed to it: see par (d) of the definition of "defence force established by an allied country";
* During the period in which she served in the AAFES, she had been "subject to the rules and conventions of warfare": see par (g) of the definition of "defence force established by an allied country";
* As a member of the AAFES, she was not required to wear a uniform or insignia distinguishing her as a member of an auxiliary service (ie the AAFES), nor was she required to carry arms and it would have been unreasonable in all the circumstances for her to have been required to wear a uniform or insignia or to carry arms: see pars (c) and (d) of subs 5R(2) of the Act.
Auxiliary Services
23 Counsel for Ms Nolan referred to the Geneva Conventions Act 1957 (Cth) which has given effect to certain conventions done at Geneva. One such convention - that relative to the treatment of prisoners of war - includes the following category of people within the definition of "Prisoners of War":
24 Counsel for Ms Nolan submitted that members of the AAFES would fall within this category and therefore would, if captured by enemy forces, be entitled to be afforded the status of prisoner of war. Whilst I do not have difficulty in accepting this proposition, I do not see it as conclusive in any sense. It is one factor, along with other factors that are present and which collectively afford a measure of assistance to the appellant in her claims. But I do not think that it can be put any higher. I do not accept, as counsel for Ms Nolan submitted, that all the persons coming within the definition of "Prisoners of War" as quoted above are therefore to be regarded as members of an auxiliary service of the regular armed forces of an allied country. I believe that Ms Henderson, counsel for the respondent, was correct when she submitted that an auxiliary service must normally be a uniformed service, otherwise there would be no point in enacting subs 5R(2) to relieve a member of that auxiliary service in appropriate circumstances from the obligation to wear a uniform or an insignia and to carry weapons.
"(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model."
25 Mr McKeand, counsel for the appellant, submitted that the language used in the definition of "defence force established by an allied country" was materially different to the language that appears in subs 5R(2). In particular, he laid stress on the presence of words:
"raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of these forces and services ..."
in the definition and their absence in subs 5R(2). Thus said McKeand, in a consideration of Ms Nolan's application, one is obliged to ignore that part of the definition that I have quoted. In its concluding remarks, the Tribunal had said of the AAFES that it was not "operated with regular military-like lines of command". Mr McKeand said that this was an error on the part of the Tribunal as it should have ignored the quoted passage. This argument cannot be correct. It overlooks, first, the fact that the words in the quoted passage are descriptive of the forces and services that are listed in pars (a), (b) and (c) of the definition and secondly that in subpar 5R(2)(a)(i) the legislature connects the language in the definition by referring to "forces or service of a kind referred to in the definition ...". Far from creating a contradictory position, the use of the words "of a kind" form a connection that allows the language of the definition and subs 5R(2) to be read in harmony. Subsection 5R(2) does not supplant the definition as Mr McKeand submitted; it qualifies it; and with its qualification, it is to be read in conjunction with the definition. In comparing the language that has been used in the drafting of the definition of "defence force established by an allied country" with that used in subs 5R(2), it would be wrong to assume that the requirement to wear uniforms or insignia and the requirement to carry arms openly have been abolished. They have not; the correct situation is that these requirements will continue to exist unless there are two factors present. The first of these factors is that Ms Nolan, as the person who is applying for the pension, must satisfy the Commissioner that she was not required by the controlling authority to wear a uniform or insignia and was not required to carry arms. The second factor is that the Commissioner must be satisfied, having regard to all the circumstances that are mentioned in par 5R(2)(d) "that it would have been unreasonable" for Ms Nolan "to have been required to wear a uniform or insignia or to carry arms or to carry arms openly." In my opinion Ms Nolan has been unable to point to any error on the part of the Tribunal when it concluded that the PX was not part of the "forces" or "services" that are referred to in the definition.
Appointment or Employment
26 By letter dated 3 April 1970, Mr Nolan's engagement with the AAFES came to an end. The terms of the letter suggest that the more appropriate language to describe her engagement would be a contract of employment - not an "appointment". The letter said:
27 The Tribunal considered that a contract terminable on thirty days notice was not consistent with the ordinary meaning of either "appointed" or "enlisted". It relied on the decision of Spender J in Joseph v Repatriation Commission (1991) 100 ALR 549, a case where a former merchant seaman failed in his attempt to obtain a disability pension. Spender J took a restrictive view of the meaning of words "appointed" and "enlisted". He said:
"... your employment with the Vietnam Regional Exchange ... will be terminated under the provisions of par 5 of your employment agreement which states "The Exchange may terminate this agreement at any time by giving 30 days notice to the employed"."
28 Counsel for the appellant spent some time in reviewing the US authorities including the Army Regulations, all of which showed, quite clearly, that employees of AAFES are able to be "appointed" to their positions of employment. Save for establishing this base premise these authorities do not offer Ms Nolan any further assistance. The critical question is one that is exclusively personal to her. Was she appointed to a position or was she employed under a contract for services?
"That sub-section contemplates a person's appointment or enlistment in the regular naval, military or air forces of the Commonwealth or allied country. The words "appointment" or "enlistment" are apt to convey service in such a force and are more appropriately used in such a denotation than to indicate service in a particular country's merchant marine. Such latter service does not involve the same degree of discipline or absence of choice as does service in the Royal Navy or the Royal Norwegian Navy. A merchant seaman is able to choose on which ship he sails and for how long; he is not subject to military discipline nor military pay, and a choice by a seaman to join such a merchant service is not ordinarily described as "appointment" or "enlistment" to that merchant service."
29 The evidence before the Tribunal was sufficient to justify a finding that Ms Nolan was engaged for a term of twelve months but terminable by the AAFES on thirty days notice. Ms Nolan has lost her copy of her contract and it was not possible therefore for the Tribunal to make any further findings about the terms of her engagement. In particular, it was not possible to find whether the terms of that engagement amounted to an appointment or a contract for services.
30 Counsel for Ms Nolan advanced the broad proposition that most employees of AAFES are appointed by virtue of the provisions of the Army Regulations. He submitted that the identity card gave a specific status to Ms Nolan which was more consistent with an appointment than a mere contract for services. He submitted, relying on the three decisions of the US Supreme Court to which I have referred, that the exceptions to this proposition were incidental contractors who performed services "off a military installation, such as laundry, dry cleaning, photo processing and repair services" and the "procurement of direct services such as janitorial and window cleaning services". It is true that such services have been identified as service contracts but they can only be treated as examples: they are not to be considered as exclusive, leaving all other engagements to be classified as "appointments". I am not persuaded that the Tribunal fell into error in coming to the conclusion that Ms Nolan was neither appointed nor enlisted.
The Rules and Conventions of Warfare
31 Counsel for the applicant submitted that Ms Nolan - and, indeed all civilian as well as military personnel in Vietnam - were both entitled to benefit from and obliged to adhere to the rules and conventions of warfare. Counsel accepted the evidence of Dr Grey that the reference to "the rules and conventions of warfare" was a reference to the terms and conditions of the Hague and the Geneva Conventions. If the words "appointed" and "enlisted" were interpreted as having a limited application to officers and other ranks as was suggested by counsel for the respondent, it would follow that the reference to "the rules and conventions of warfare" would relate only to military personnel and not to civilian non-combatants. However, I see no reason to adopt such a restrictive interpretation. In my opinion that expression "the rules and conventions of warfare" would apply to civilians as well as military personnel: c.f. Boots v Repatriation Commission [1993] FCA 178; (1993) 42 FCR 108.
Wearing a uniform or insignia and bearing arms
32 Upon the basis that Ms Nolan was a civilian and a non-combatant, it was submitted on her behalf that she was not required to wear a uniform or an insignia and she was not required to carry arms. That proposition is not disputed. The dispute rests in the fact that par 5R(2)(d) lays down, as an additional requirement, that it would have been "unreasonable" in the circumstances there mentioned for Ms Nolan "to have been required to wear a uniform or insignia or to carry arms or to carry arms openly". The case for the appellant is that because she was not required to do these things, it would have been unreasonable to require her to do so. But, as the Tribunal said, that is circular reasoning. The combined effect of pars 5R(2)(c) and (d) is that these things are not required of a person because it would be unreasonable to require them. Expressed in this fashion, it can be seen that the legislature has not left the decision to the employing party; it is not simply a case of inquiring whether or not a person was required to wear a uniform or carry arms. One has to go a stage further. If the initial inquiry reveals that the person is not so required, one must then ask whether it would have been unreasonable to require it. If the answer is that it would not have been unreasonable then, even though there was no requirement, the Commissioner could not be satisfied that there had been a compliance with subs 5R(2). In those circumstances one would revert back to "the definition", noting that to come within "the definition" a person would have to show that she or he (amongst other things) was required to wear a uniform or insignia and to carry arms openly. In my opinion, the Tribunal was correct in concluding that Ms Nolan was unable to avail herself of the terms contained in par 5R(2)(d). Because of this, she had to satisfy the tests contained in "the definition". This she failed to do because, as was conceded on her behalf, she was not required to wear a uniform or an insignia nor was she required to carry arms.
33 Counsel for Mrs Nolan accepted that the protection of partisans was an explanation for the presence of pars 5R(2)(c) and (d) of the Act but, so he submitted, it was merely one explanation and the Tribunal fell into error in proceeding upon the premise that it was the only explanation. What the Tribunal said on this subject was as follows:
34 Section 5R was introduced as an amendment to the Act by Act No 72 of 1991 and the decision of the Tribunal in Marinucci was given on 14 May 1991. If the Tribunal in the present case proceeded on the premise that s 5R was introduced as a result of the decision in Marinucci, it was wrong. The bill for the introduction of s 5R was in circulation, at the latest, in April 1991. Furthermore, the applicant in Marinucci would not have been successful even if his case had been decided at a time after the introduction of s 5R. He was unsuccessful because of various factual issues; first, his work as a partisan was in Italy at a time when Italy was still an enemy; secondly, the evidence did not establish that he had engaged in "continuous full-time service" - the Tribunal saying of partisans generally:
"The ameliorative provisions of section 5R(2) were introduced to deal with the situation of partisans of allied countries, such as those considered in Re Marinucci and Repatriation Commission (1991) 23 ALD 632. The coupling of the concepts of regular forces of both allied countries and governments in exile in circumstances where no uniform would be expected indicates the situation the legislature had in mind when enacting this section."
35 The applicant in Marinucci also failed because the Tribunal was not satisfied of his appointment or enlistment. Finally, there has been a provision in the legislation since 1986 relating to the entitlement of persons who served with allied forces but who did not wear uniforms or bear arms. Thus it can be seen that it is not correct to say, as the Tribunal said, that the section was introduced to "deal with the situation of partisans of allied countries, such as those considered in Re Marinucci ...". The passage in bold, read in isolation would have been a correct statement of the position; it is the additional words and the reference to re Marinucci that has caused confusion. If the Tribunal meant, by the inclusion of those words that subs 5R(2) of the Act was introduced after re Marinucci and because of it, then it is plain that the Tribunal made an error, though not one that affected the ultimate outcome of the proceedings in the Tribunal. If, as is more likely, the Tribunal merely intended to refer to re Marinucci as an example of how the ameliorating provisions might have worked, then the passage is still objectionable, for as I have pointed out the appellant in re Marinucci failed because he was not able to satisfy the Tribunal that he fell within the definition of "allied veteran". One can readily see that affording a measure of help to those who have been engaged in partisan warfare would have been an obvious object of the amending section. As the explanatory memorandum that accompanied the Bill is silent on the purpose or object of the amending section, it affords no help. In my opinion an object of s 5R was to provide for partisan fighters; there may have been other objects; if there were I cannot think of them and counsel were unable to offer any examples. I do not therefore regard this error of the Tribunal as critical.
"However, in between those meetings they lived their normal lives at home with their families. It is difficult to see them as having rendered continuous service."
36 In my opinion, Ms Nolan has failed in her attempts to show that the Tribunal fell into error. The appeal is therefore dismissed with costs.
|
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice O'Loughlin . |
Associate:
Dated: 24 February 1999
|
Counsel for the Applicant: | Mr R McKeand & Ms K Poulos |
| Solicitors for the Applicant: | Willis & Bowring |
| Counsel for the Respondent: | Ms R Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 27 August 1998 |
| Date of Judgment: | 24 February 1999 |
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