VETERANS' AFFAIRS - application for Gold Card - claim for eligible service under s 7A(1) Veterans' Entitlement Act 1986 - whether Royal Australian Navy ships he served were 'allotted for duty' in operational areas - whether award of Australian Active Service Medal Clasp 'MALAYSIA' satisfied eligibility for warlike service - decision under review affirmed

Administrative Review Tribunal Act 2024 (Cth)

Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59

Bellamy v Repatriation Commission [2005] AATA 134

Burton v Repatriation Commission [2003] AATA 186

McAndrew and Repatriation Commission [2022] AATA 3205

Park and Repatriation Commission [2011] AATA 31

Re Lewis and Secretary, Department of Veterans' Affairs [1993] AATA 165

Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327

Stewart-Moore and Repatriation Commission [1999] AATA 573

1. On 4 June 2025, the applicant, Mr Horobin, made an application for review[1] to the Tribunal of the decision by a delegate of the respondent (the Commission) dated 5 March 2025 to affirm the determination that Mr Horobin was not eligible for a 'Gold Card' under ss 85(4A) or 85(4B) of the Veterans' Entitlement Act 1986 (Cth) (VEA) as he had not rendered qualifying service[2].
2. The parties requested the Tribunal to decide the application for review on the papers, and after directions for filing documents and submissions, the Tribunal was satisfied that it was appropriate to decide the application without a hearing pursuant to s 106 of the ART Act, because the parties consented to such, and the issues for determination can be adequately determined in the absence of the parties.
3. The Tribunal admitted into evidence the 'joint hearing bundle' as exhibit R1. References to page numbers in the decision are references to the PDF page numbering as the document is not paginated throughout the document.

1. The Commission framed the issue before the Tribunal, and the Tribunal accepts the issue before the Tribunal is, whether Mr Horobin rendered 'qualifying service' under s 7A(1) of the VEA. [3]

(a) Mr Horobin was born in September 1943 and is currently 82 years of age.

(b) Mr Horobin served in the Royal Australian Navy (RAN) for 33 years, in the permanent RAN for approximately 15 years from 1960 to 1985, and then in the RAN Reserves for approximately 18 years from 1985 to 2003.[4]

(c) Mr Horobin served aboard:[5]

(i) HMAS Melbourne from 1 August 1963 to 15 September 1963;

(ii) HMAS Yarra from 16 September 1963 to 23 November 1963;

(iii) HMAS Yarra from 6 January 1964 to 26 May 1964; and

(iv) HMAS Melbourne from 27 May 1964 to 31 August 1964.

(d) On 23 July 2010, the Commonwealth Gazette[6] (the 2010 Determination) titled 'Declaration and Determination under the Australian Active Service Medal 1945-1975 Regulations' states relevantly that:

(b) declare, under regulation 3 of the Regulations the following warlike operations in which member of the Australian Defence Force were engaged in the Indonesian Confrontation during the following periods be a prescribed operation for the purpose of the Regulations:

(ii) Defence Force activities in Sabah, Sarawak and Brunei during the period that commenced on 24 December 1962 and ended on 14 September 1966; and

(iii) Defence Force activities in the Malay Peninsula/Singapore during the period that commenced on 17 August 1964 and ended on 11 August 1966.

(c) determine, under subregulation 4(2) of the Regulations, that the conditions for award of the Australian Active Service Medal 1945-1975 with Clasp 'MALAYSIA' ("the Medal") for the prescribed operation are:

(i) the Medal may be awarded to a member of the Australian Defence Force who rendered service as such a member while allotted and posted as a member of the Australian element for duty to the prescribed operation;

(e) On 6 May 2024, the Commission denied eligibility for the Gold Card (the Primary Determination)[7].

(f) On 5 March 2024, the Commission affirmed the Primary Determination, which is now under review before the Tribunal (the Reviewable Decision)[8].

(g) On 27 August 2025, the Directorate of Honours and Awards, Department of Defence, wrote to Mr Horobin, stating:[9]

Thank you for your letter of 11 August 2025 concerning your entitlement to campaign and service awards, in particular the Australian Active Service Medal (AASM) 1945-75 with Clasp 'MALAYSIA' and the Returned from Active Service Badge.

In accordance with the Commonwealth of Australia Government Gazette No. S141, Friday, 23 July 2010, the Australian Active Service Medal 1945-75 with Clasp 'MALAYSIA' may be awarded for warlike operations in which members of the Australian Defence Force were engaged in the Indonesian Confrontation during the following periods to be the prescribed operation for the purpose of the Regulations:

• Defence Force activities in Sabah, Sarawak and Brunei during the period that commenced on 24 December 1962 and ended on 14 September 1966:

An examination of your service record confirms that that you were posted to HMAS Y_arra_ from 6 January 1964 to 26 May 1964. During this posting HMAS Yarra entered the qualifying area for the AASM 1945-75 with Clasp 'MALAYSIA' in April 1964 on two separate occasions, therefore qualifying you for the medal and the Returned from Active Service Badge.

Further examination of records confirm that you qualified for and have been issued with the following awards:

• Australian Active Service Medal 1945-75 with Clasp 'MALAYSIA'

• Australian Service Medal 1945-75 with Clasp 'FESR'

1. Relevantly for present purposes, s 7A of the VEA establishes the criteria for a veteran to have rendered qualifying service for the purposes of an entitlement to a Gold Card under s 85(4A) of the VEA.
2. It is accepted by the parties that the criteria that may apply to Mr Horobin are s7A(1)(iii) and (iv) that provide:

(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

(a) if the person has, as a member of the Defence Force:

(iii) 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

1. The reference to 'Schedule 2' in s 7A(1)(a)(iii) of the VEA is to 'Schedule 2 - Operational area' in the schedules to the VEA, relevantly to Mr Horobin, is:

(a) Item 5 that states the description the operational area for the 'period from and including 1 August 1960 to and including 16 August 1964' is:

All that part of the Federation of Malaya contained within the area bounded by a line commencing at the intersection of the western shore of the Federation of Malaya at high - water mark and the boundary between the States of Perlis and Kedah; thence proceeding generally north - easterly along that boundary to its intersection with the railway line from Arau to Penang Tunggal; thence following that railway line generally southerly to its intersection with the northern boundary between the States of Penang and Kedah; thence proceeding along the boundary between those States generally easterly, southerly and westerly to the intersection of the boundaries of the States of Penang, Kedah and Perak; thence following the boundary between the States of Penang and Perak to its intersection with the railway line from Penang Tunggal to Taiping; thence following that railway line generally southerly, easterly and southerly to its intersection with the parallel 4 degrees 51 minutes north latitude; thence proceeding due south in a straight line to the intersection of that line with the parallel 4 degrees 30 minutes north latitude; thence proceeding along that parallel to its intersection with the eastern bank of the Perak River; thence following that bank of that river to its intersection with the parallel 4 degrees 47 minutes north latitude; thence proceeding in a straight line to the intersection of the boundaries of the States of Perak, Kelantan and Pahang; thence proceeding along the boundary between the States of Kelantan and Pahang to its intersection with the meridian 101 degrees 48 minutes east longitude; thence proceeding in a straight line to the intersection of the eastern bank of the Raya River with the eastern bank of the Nenggiri River; thence following that bank of that river to its intersection with the western bank of the Galas River; thence proceeding in a straight line due east to the eastern bank of that river; thence following that bank of that river and the eastern bank of the Kelantan River to its intersection with the eastern shore of the Federation of Malaya at high - water mark; thence following that shore at high - water mark to its intersection with the boundary between the Federation of Malaya and Thailand; thence proceeding along that boundary to the western shore of the Federation of Malaya and Thailand at high - water mark; thence following that shore of the Federation of Malaya at high - water mark to the point of commencement.

(b) Item 6 that states the description the operational area for the 'period from and including 8 December 1962 to and including 16 August 1964' is:

All that area of land and waters (other than islands and waters forming part of the territory of the Republic of the Philippines) bounded by a line commencing at the intersection of the northern shore of Borneo at high - water mark with the boundary between Kalimantan and Sarawak; thence proceeding generally south - easterly, easterly and northerly along that boundary to its junction with the boundary between Kalimantan and Sabah; thence proceeding generally easterly along that boundary to its intersection with the eastern shore of Borneo at high - water mark; thence proceeding in a straight line easterly to the intersection of the western shore of the island of Sebatik at high - water mark with the boundary between that part of that island that forms part of Sabah and that part of that island that forms part of Kalimantan; thence proceeding generally easterly along that boundary to its intersection with the eastern shore of the island of Sebatik at high - water mark; thence proceeding in a straight line easterly to a point 80.5 kilometres east (true) of the intersection of the eastern shore of Borneo at high - water mark with the boundary between Kalimantan and Sabah; thence proceeding generally northerly and south - westerly parallel to and at a distance of 80.5 kilometres from the eastern and northern shores, respectively, of Borneo at high - water mark to a point 80.5 kilometres north (true) of the point of commencement; thence proceeding in a straight line southerly to the point of commencement.

1. As found above, there is no contest that Mr Horobin was a 'member of the Defence Force' pursuant to s 5C(1) of the VEA for the period in item 5 and 6 to Schedule 2 of the VEA.
2. The phrase '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' in s 7A(1)(a)(iii) is defined in s 5B(2) of the VEA to mean:

(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:

(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)--to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act;

1. The written instrument referred to in s 5B(2)(a) for present purposes is the instrument issued by the Vice Chief of the Defence Force on 13 August 2002[10] for the period between 8 December 1962 to 16 August 1964 in respect to item 6 to Schedule 2 of the VEA that provides HMAS Yarra was allotted for duty for the period 28 May 1964 to 8 June 1964 (the VCDF Instrument).

1. The phrase 'rendered warlike service' in s 7A(1)(iv) of the VEA is defined in s 5C(1) as meaning 'service in the Defence Force of a kind determined in writing by the Defence Minister to be warlike service'.
2. The 'Veterans' Entitlements (Warlike Service) Determination 2019'[11] made on 15 August 2019 by the Minister for Veterans and Defence Personnel under s 5C(1) of the VEA provides that no named operations in Malaya or Borneo during 1963 and 1964 are designated as 'warlike service' (the Minister's Warlike Service Determination).

My situation is most clearly summarised by the Delegate on pages 10, 11, and 12 of their review of 5 March 2025 (T1.2 pages 26, 27 and 28).

It is agreed that I was a member of the Royal Australian Navy serving on board HMAS Yarra from 6 January 1964 to 26 May 1964.

I believe it is also agreed that Yarra was in Operational Area 6 on 14 March 1964 (T13.4 (para 14. p87)), and from 22 - 25 April 1964 (T13.4 (para 31 - 33 p 105).

However, based on advice from the Department of Defence dated 28 December 2000 (T9 p 52 and 53) and 13 August 2002 (T10, p55) Yarra was not "allotted for duty" in VEA Operational Area 6 until after I had left the ship.

The Gazette (T13.4 (p137 - 139)) describing the criteria for the award of the Australian Active Service Medal with clasp MALAYSIA was signed by the Governor General on 13 July 2010, eight years after the advice from the Department of Defence. The Gazette was also signed by the Parliamentary Secretary for Defence on behalf of the Minister for Defence.

The Gazette uses similar language and criteria to the VEA to describe "... the following warlike operations in which members of the Australian Defence Force were engaged in the Indonesian Confrontation during the following periods to be a prescribed operation for the purpose of the Regulations:

.... (ii) Defence Force activities in Sabah, Sarawak and Brunei during the period that commenced on 24 December 1962 and ended on 14 September 1966;"

.. determine, under subregulation 4(2) of the Regulations, that the conditions for award of the Australian Active Service Medal 1945-1975 with Clasp 'MALAYSIA' ("the Medal") for the prescribed operation are:

• the Medal may be awarded to a member of the Australian

Defence Force who rendered service as such a member

while allotted and posted as a member of the Australian

Medallic Eligibility is Separate from and Distinct to Eligibility for Repatriation Benefits

The Delegate (T1.2 (p27) has observed "Medallic eligibility is separate from and distinct to eligibility for repatriation benefits.

Whether a person has been awarded an Australian Active Service Medal (AASM) does not necessarily indicate that they will be eligible for benefits under veterans' legislation as they are provided under different regulations. An AASM may be awarded for service on an operation or in connection with that operation.

It appears the latter circumstance is applicable to the granting of the award in this case."

The Criteria for "Qualifying Service" in Each Case are Nearly Identical

The basis for the Delegate's assumption that the AASM in my case was awarded "in connection with" an operation is not clear in the Gazette. The Gazette is clear that to qualify for the Australian Active Service Medal 1945-1975 with Clasp 'MALAYSIA', one must:

• For the _prescribed operation ("..._activities in Sabah, Sarawak and Brunei ..."

• In the nominated period ("... 24 December 1962 - 14 September 1966 ...";

The Gazette also describes the "prescribed operation" as "warlike operations" and it is co-signed on behalf of the Minister for Defence.

These criteria are nearly identical to that describing qualifying service for the award of a Gold Card in the VEA. The variance is the qualifying period1. My service is within the VEA period.

1 The qualifying period in VEA Schedule 2 Area 6 is 8 December 1962 to 16 August 1964, while the AASM is 24 December 1962 to 14 September 1966.

I have written to the Department of Defence asking that it verify that I am qualified for the award of the AASM.

AASM i.a.w. Commonwealth Gazette S141 of 23 July 2010

Qualify for a Gold Card i.a.w. Veteran's Entitlement's Act

If the Department of Defence confirms my eligibility for the award of the AASM, what steps must be taken to align the veterans' legislation with the direction given by the Governor General in the Gazette?

The decision by the Delegate was based on advice from the Department of Defence dated 13 August 2002, that HMAS Yarra was not allotted for duty in an area described in the Veterans Entitlement Act while I was serving in the ship.

I say that the ship's Report of Proceedings for March and April 1964 show that Yarra was conducting operations in the Sarawak, Brunei and Sabah area, and that the Commonwealth Gazette S141 of 23 July 2010 supersedes the advice of the Vice Chief of the Defence Force of 13 August 2002. The Gazette describes the type of operations undertaken by Yarra in the Sarawak, Brunei and Sabah area as "warlike operations". Ships in the Royal Australian Navy do not conduct these types of activities unless they are so directed by an appropriate authority, and therefore, Yarra must have been "allotted for duty".

The response to my letter to the Department of Defence of 11 August (Enclosure 2) seeking verification of my entitlement to the Australian Active Service Medal 1945 - 75 with Clasp "MALAYSIA" would seem to support my view. The Defence Department response is at Enclosure 3.

(a) Whether Mr Horobin rendered qualifying service is a question of fact for the Tribunal to determine to its reasonable satisfaction pursuant to s 120(4) of the VEA.[15]

(b) The Tribunal's jurisdiction is limited to determining whether Mr Horobin rendered qualifying service, not whether he is eligible for a Gold Card[16], because:[17]

s 175 allows for review of decisions made by the respondent under s 57, which includes review of decisions that have been made in relation to a claim for qualifying service determination under s 35B (ss 35(1)(a)).

(c) Mr Horobin did not render qualifying service because:

(i) even if he was within the operational areas in item 5 and 6 of Schedule 2 of the VEA during the prescribed period, he does not satisfy s 7A(1)(iii) because he was not on a ship 'allotted for duty' at the prescribed time, as evidenced by the VCDF Instrument[18];

(ii) his service on HMAS Yarra and HMAS Melbourne in Malaya and Borneo is not 'warlike service' as defined in s 5C(1) of the VEA because it is not included in the Minister's Warlike Service Determination; and

(iii) despite Mr Horobin being awarded the Australian Active Service Medal, Clasp 'MALAYSIA' (AASM) pursuant to the 2010 Determination for 'warlike service' in Sabah, Sarawak and Brunei during the period commencing on 24 December 1962 and ending on 14 September 1996, that determination and award of the AASM to Mr Horobin do not meet the statutory requirements of s 7A(1) of the VEA for qualifying service.

(d) The Tribunal (and the Commission) does not have the discretion to determine Mr Horobin has rendered warlike service based on other criteria.[19]

1. The Tribunal is a creature of statute, and its jurisdiction and powers are limited by the legislative scheme in the Administrative Review Tribunal Act 2024 (Cth) and the enabling act a reviewable decision is made under.
2. Put another way, the Tribunal's jurisdiction and powers are not 'at large', allowing it to go beyond its statutory power.[20]
3. The Tribunal states this up front because of the circumstances of this application for review.
4. Mr Horobin has been recognised for his 'warlike service' on a 'prescribed operation' by the award of the AASM. Yet that 'warlike service' is not recognised by the legislative scheme in the VEA by the statutory requirement to fit within Schedule 2 therein, the VCDF Instrument or the Minister's Warlike Service Determination.
5. Accepting Mr Horobin's contentions about his RAN service aboard HMAS Yarra or HMAS Melbourne in the operational areas in item 5 and 6 of Schedule 2 of the VEA does not alter the statutory requirement for the VCDF Instrument to name the RAN ships he served within the prescribed period as 'allotted for duty'. It does not.
6. The facts in this case[21] are analogous to those before Deputy President Sosso in McAndrew and Repatriation Commission [2022] AATA 3205 where he cited the explanatory memorandum to amendments in respect to the phrase 'allotted to duty' made to the VEA in 1990 at [51]:

This clause, clause 38 and clause 42, would amend relevant parts of sections 5, 6 and 36 of the Principal Act to overcome the Federal Court decisions in Davis and Doessel where the court construed the phrase 'allotted for duty' as being equivalent to 'posted for duty'. Such a construction, if not reversed, would result in an unintended extension of the benefits under the Act to all service personnel who were in an operational area during a relevant period irrespective of the duration of that service, of the purpose of their presence in the area, of the actual duties undertaken during that period and of the fact that the Defence Force, apart from posting them to that area, had not formally allotted them for service in that area.

The concept of 'allotment for duty' is a special one which was developed to cater for and identify service which attracted Repatriation benefits. It has been developed in respect of service undertaken in response to the war - like situations that have arisen since World War II and in respect of which there has been no formal declarations of war by Australia.

The Federal Court decisions overlook the terms of the existing legislative provisions and the object and purpose of those provisions. The proposed amendments are intended to overcome the Federal Court decisions by clarifying that the 'allotment"' process (past and present) is, firstly, a distinct administrative arrangement, separate from the normal 'posting' process which governs the movement of Defence Force personnel and, secondly, an administrative arrangement for the specific purpose of determining whether a person's service was sufficiently hazardous to entitle the person to benefits under the Principal Act.

1. In McAndrew, Deputy President Sosso observed at [85]:

the question of whether the Veteran should be recognised as having rendered warlike service in Cambodia is a policy question, and as Senior Member Isenberg opined, the Veteran is at liberty to put his case to the Executive Government. Insofar as there are inconsistencies in the enactments referred to above, it may be that favourable consideration could be given to his submissions.

1. The Tribunal respectfully agrees with the observation of Deputy President Sosso. The anomaly is perverse and disadvantages veterans who have rendered operational service for their country.
2. However, the Tribunal is bound to apply the clear statutory construction of s 7A(1) of the VEA.
3. The Tribunal is not reasonably satisfied that Mr Horobin has rendered qualifying service pursuant to s 7A(1) of the VEA because:

(a) To satisfy s 7A(1)(iii) of the VEA:

(i) requires that an instrument issued by the Defence Force that states that the ships that Mr Horobin served upon were 'allotted for duty' during the prescribed period in Schedule 2 of the VEA;

(ii) the VCDF Instrument does not specify that HMAS Yarra and HMAS Melbourne were allotted for duty pursuant to Schedule 2 of the VEA for the periods that Mr Horobin served on those ships; and

(iii) it matters not whether, as Mr Horobin asserts, that during his service on HMAS Melbourne and HMAS Yarra he was within the operational areas as specified in Schedule 2 of the VEA (item 5 and 6), because the Tribunal has no statutory power to change the application of Schedule 2 of the VEA or the VCDF Instrument.

(b) To satisfy s 7A(iv) of the VEA:

(i) requires that Mr Horobin's 'warlike service', as defined in s 5C(1) of the VEA, is satisfied by a determination in writing by the Defence Minister.

(ii) the Minister's Warlike Service Determination does not specify that Mr Horobin's service during the prescribed period is warlike. In fact, the determination does not mention the 'Indonesian Confrontation' campaign at all.

(iii) It matters not whether Mr Horobin has been awarded an AASM with clasp 'MALAYSIA' because, despite the 2010 Determination specifying it is for 'warlike service' for a 'prescribed operation', it is not contained within Minister's Warlike Service Determination as required by s 5(C)(1) of the VEA.

(c) It follows that Mr Horobin does not meet the statutory requirement of s 7A(1) of the VEA that he has rendered qualifying service.

1. The Tribunal affirms the decision under review.

[3] Respondent's Statement of Facts, Issues and Contentions, dated 30 October 2025 (Respondent's SFIC) at [16].

[11] Veterans' Entitlements (Warlike Service) Determination 2019 - Federal Register of Legislation

[14] Respondent's SFIC at [27]-[61].

[15] Citing Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327 at 334.

[16] Citing Stewart-Moore and Repatriation Commission [1999] AATA 573.

[18] Citing Re Lewis and Secretary, Department of Veterans' Affairs [1993] AATA 165.

[19] Citing McAndrew and Repatriation Commission [2022] AATA 3205 at [79]- [80].

[20] See Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 at [36].

[21] See also Park and Repatriation Commission [2011] AATA 31.