Defence Service Homes - - subsidy - certificate of entitlement - applicant served in Royal Australian Navy - whether applicant an "eligible person" - whether applicant an "Australian Soldier" - whether applicant or ship "allotted for duty in an operational area".

Acts Interpretation Act 1901 s.15AB

Administrative Appeals Tribunal Act 1975 s.37

Defence Service Homes Act 1918 ss.4(1), (2), 4AAA, 15, 17, 18

Veterans' Affairs Legislation Amendment Act 1990

Veterans' Entitlements Act 1986 s.5B(2), Sch 2

Repatriation Commission v Davis (1990) 94 ALR 621

Repatriation Commission v Doessel (1990) 95 ALR 704

Ms Sokolich

Solicitors for the Respondent: Australian Government Solicitor

P W JOHNSTON, S D HOTOP AND R D F LLOYD This is an application to review a decision of a delegate of the respondent, dated 10 June 1992, not to issue to the applicant a Certificate of Entitlement pursuant to ss.17 and 18 of the Defence Service Homes Act 1918 ("the Act").

2. At the hearing the applicant represented himself whilst the respondent was represented first by Mr E Carlose and, upon resumption, by Ms M Sokolich, each from the Australian Government Solicitor's Office.

3. The applicant gave evidence on his own behalf. No witnesses were called by the respondent. The documents filed with the Tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were admitted into evidence, together with Reports of Proceedings of HMAS Parramatta and HMAS Sydney, tendered by the applicant.

4. The applicant applied for a Certificate of Entitlement on 23 April 1992 for the purpose of obtaining a subsidised loan in order to finance home improvements. A delegate of the respondent decided, by determination dated 28 May 1992, that a Certificate of Entitlement should not be issued because the applicant was not an "eligible person", as defined by s.4(1) of the Act, and he (the delegate) was therefore precluded by s.18(1) of the Act from issuing such a certificate to the applicant.

5. The applicant, by letter dated 8 June 1992, applied to the respondent for review of that decision. On 10 June 1992, a Senior Delegate of the respondent affirmed the decision not to issue a Certificate of Entitlement to the applicant. The Senior Delegate decided that the applicant did not meet the definition of "eligible person" in s.4(1) of the Act since he was not an "Australian Soldier" as defined in that subsection. In particular, the Senior Delegate decided that the applicant: (1) was not "allotted for duty in an operational area" within the meaning of the Veterans' Entitlements Act 1986; and (2) was not a "regular serviceman" within the meaning of s.4AAA of the Act, as his service in the Defence Force ended before 7 December 1972. In relation to the first point the Senior Delegate stated:

"...Mr Lewis was not serving aboard one of HMA Ships at the time

it was deemed to be allotted for service in an operational area as

described in items 4 to 8 of Schedule 2 of the Veterans Entitlement

(sic) Act during the period specified in that item, as required by

Section 4(g) of the Defence Service Homes Act.

Having regard to all the evidence available to me I am satisfied

that on the basis of his continuous full-time service Mr Lewis

cannot be considered an "Australian Soldier" as defined in the

Defence Service Homes Act and therefore is not an "eligible

person" as defined in Section 4(1) of that Act."

In relation to the second point, the Senior Delegate said:

"The definition of "Australian Soldier" in the Defence Service Homes

Act also includes a person who is (a) "Regular Serviceman". Section

4AAA of the Act provides that a person is a regular serviceman if :

(a) he has served on continuous full-time service as a member of

the Defence Force, not being service that ended before 7 December

1972, and, during that service, has ..."

In view of the fact that Mr Lewis' service terminated before 7

December 1972, he is not a "Regular Serviceman" for the purposes of

the Act."

6. Section 15(1)(b) of the Act provides that "a person may apply to the Secretary for ... a certificate of entitlement in relation to subsidy on a subsidised advance that the person may seek from the Bank." Section 18(1) of the Act sets out the relevant criteria which an applicant must satisfy before a certificate is issued. Relevantly, an applicant must be an "eligible person": see s.18(1)(a). The phrase "eligible person" is defined in s.4(1) of the Act to mean a person who, inter alia, is an "Australian soldier".

7. The phrase "Australian soldier" is defined in s.4(1) of the Act, inter alia, to include:

"(g) a person who, as a member of the Defence Force, rendered

continuous full-time service outside Australia -

(i) as a member of a unit of the Defence Force that was allotted

for duty, within the meaning of the Veterans' Entitlements Act

1986 as provided in subsection 5B(2) of that Act; or

(ii) as a person who was allotted for duty, within the meaning of

the Veterans' Entitlements Act 1986 as provided in subsection 5B(2)

of that Act,

in an operational area described in items 4, 5, 6, 7 or 8 in

Schedule 2 to the Veterans' Entitlements Act 1986 during the period

specified in that item;

...

(i) a regular serviceman;..."

Section 4AAA(1) of the Act relevantly provides:

"Subject to this section, a person is a regular serviceman for

the purposes of this Act if -

he has served on continuous full-time service as a member of

the Defence Force, not being service that ended before 7 December

1972,..."

8. The key phrase, for the purposes of this case, in paragraph (g) of the definition of "Australian soldier" is "allotted for duty... in an operational area". That paragraph states that the relevant meaning of that phrase is to be found in s.5B(2) of the Veterans' Entitlements Act 1986. That subsection provides:

"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;

or

(b) in the case of duty that was carried out in an operational area

described in item 9 or 10 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 signed

by the Vice Chief of the Defence Force for use by the Commission in

determining a person's eligibility for entitlements under this Act;

or

(c) to a person, or unit of the Defence Force, that is, by

written instrument signed by the Minister for Defence, taken to

have been allotted for duty in an operational area described in

item 4 or 8 in Schedule 2 (in column 1)."

9. Only paragraph (a) of s.5B(2) of the Veterans Entitlements Act 1986 is relevant in this matter. Paragraph (b) refers to items 9 or 10 in Schedule 2 which relate to operational periods in 1989, 1990 and 1991, and paragraph (c) refers to items 4 and 8 in Schedule 2 which describe operational areas that clearly do not correspond with the applicant's service in the Defence Force in the relevant period.

10. A preliminary objection was raised at the outset by Mr Carlose on behalf of the respondent. He submitted that s.4(2) of the Act excluded the applicant from eligibility under the Act. That subsection reads:

"(2) For the purposes of the definition of 'Australian Soldier' in

subsection (1), a person shall not be taken to be an Australian

soldier in relation to the warlike operations in or in connection

with Korea after 26 June 1950, or the warlike operations in or in

connection with Malaya after 28 June 1950, unless -

(a) that person was allotted for duty in an operational area within

the meaning of subsection 5B(2) of the Veterans' Entitlements Act

1986 in connection with those operations before 1 September 1957

and, if he was so allotted while in Australia, or in the part of the

Queen's dominions other than the Commonwealth, as the case may be,

he left the last port of call in Australia or in that other part of

the Queen's dominions before that date for the purpose of serving in

connection with those operations; or

(b) that person, not being a person to whom paragraph (a) applies

served, on or after 1 September 1957 and before 28 May 1963, in an

area prescribed to be, or to have been, an operational area for the

purposes of this paragraph."

His point was that, to the extent that the applicant relied on service in Malaya, his service fell outside the dates specified in s.4(2) and, consequently, he was not an "Australian Soldier" within the meaning of s.4(1) and, therefore, not an "eligible person" for the purpose of s.18 of the Act. The Tribunal ruled that Mr Lewis was not caught by s.4(2) of the Act, and its oral ruling is transcribed in the Appendix to these reasons.

11. The key question to be determined by the Tribunal is whether the applicant is an "Australian Soldier" by reason of his circumstances falling within paragraph (g) of the definition of that phrase in s.4(1) of the Act. If that question is answered in the affirmative the applicant thereby becomes an "eligible person" (as also defined in s.4(1)) for the purpose of s.18 of the Act. It was common ground between the parties that the applicant's circumstances do not fall within any other paragraph of the definition of "Australian Soldier" in s.4(1).

12. The Tribunal states at the outset that it regards the applicant as an honest and reliable witness and accepts his evidence as true. The applicant served in the Royal Australian Navy from 6 January 1962 to 8 May 1967 as a Leading Airman Meteorological Observer. From 18 November 1963 to 23 February 1965 he was posted for sea service on HMAS Parramatta in the role of navigator's yeoman. As part of his duties he was responsible for the safe keeping of the navigator's equipment and charts, and the maintenance of the "red" (that is, secret) folios. Those folios were on board the ship whenever the ship was deployed for active duties. It was in the course of performing these duties that the applicant was in a position to know the current position of the ship and its destination.

13. The applicant told the Tribunal that Parramatta set sail from Sydney in January 1964. The applicant said that on the day prior to departure from Sydney, the crew were briefed by Australian Security officers. The briefing covered details of the political and military background of the South-East Asian region, particularly the problems between Indonesia and Malaysia. The crew were also informed of their rights in the event that they were arrested while ashore. They were told not to discuss details of the briefing once it was concluded.

14. The applicant told the Tribunal that Parramatta's first destination was Singapore. The route taken was via the Sundra Strait between the islands of Java and Sumatra and then through to the South China Sea and on to Singapore. The Report of Proceedings of Parramatta for April 1964, at paragraphs 6 and 7, states that Parramatta was engaged in exercises in "the Singapore Area" with HMS Victorious, HMS Lincoln and HMAS Yarra. At the completion of the exercises each day, Parramatta was given a patrol area off the coast of Malaya with the task of intercepting intruding Indonesian submarines and fast patrol boats. The applicant told the Tribunal that Parramatta did not make any contact with the Indonesian forces during these patrols.

15. On 30 May 1964 Parramatta sailed from Subic Bay in the Philippines were she was participating in exercises, to rendezvous with Sydney. The rendezvous was made on 2 June 1964. The applicant told the Tribunal that the function of Parramatta, in conjunction with Yarra, was to act as a screen for Sydney during the passage to Jesselton, on the west coast of Sabah.

16. The applicant told the Tribunal that, while escorting Sydney, the crew of Parramatta were placed on defence watches. Parramatta sailed in radio and radar silence. During the day communication between the ships was limited to lights or flags. At night, only signal lights were used. The applicant said that Parramatta travelled without lights on board ship, in contravention of regulations for the prevention of collision at sea. Cigarette lighters were confiscated from the crew to prevent the sighting of lights on the upper deck.

17. The applicant told the Tribunal that the ships arrived at Jesselton without incident. The task of Parramatta and Yarra on arrival was to form a screen around Sydney during the unloading of ammunition, equipment and troops. During the off-loading programme, continuous patrols of the ships were carried out by the crew of Parramatta and Yarra. This included bottom searches for explosive devices, and full searches of the ships at sunrise and sunset. Crew members assigned to duty watch would patrol the upper deck of the ships and drop scare charges at irregular intervals. These were designed to kill or severely disable hostile divers in the water. Crew members were armed while performing the patrols.

18. On 6 June 1964 Sydney, Parramatta and Yarra left Jesselton and proceeded to Singapore. At Singapore further equipment was off-loaded from Sydney. Once this was completed Parramatta escorted Sydney to Penang Island, off the coast of Malaysia. Equipment was unloaded, and the two ships sailed to the north and west of Sumatra for Fremantle, Western Australia.

19. Four days after leaving Penang on the journey to Fremantle, Sydney and Parramatta were diverted to avoid an Indonesian submarine. The applicant referred the Tribunal to paragraph 30 of the Report of Proceedings of Sydney for June 1964 which states:

"Temporary repairs were made and HMAS PARRAMATTA finally

topped up on the 22nd in worsening weather conditions. As HMAS

PARRAMATTA was casting off a signal was received from the Naval

Board ordering a diversion to avoid an Indonesian submarine. The

ships resumed defence stations, evasive steering and radio silence

until early a.m. on the 24th."

20. The first stage in deciding if the applicant was "allotted for duty" for the purposes of s.5B(2)(a) of the Veterans' Entitlements Act 1986 is to determine whether the applicant carried out his duties in an "operational area" described in Schedule 2 to that Act. Section 5B(2)(a) refers to items 1 to 8 in Schedule 2. However, this must be read subject to paragraph (g) of the definition of "Australian Soldier" in s.4(1) of the Act which qualifies the reference to "allotted for duty" in the Veterans' Entitlements Act by providing that only items 4 to 8 in Schedule 2 to that Act are applicable.

21. Ms Sokolich, for the respondent, conceded that the applicant's duties at Jesselton were in an operational area described in item 6 in Schedule 2. In the Tribunal's opinion, that concession was correctly made. Item 6 describes an area which, in general, traces the border between Sarawak and Kalimantan, and along the border of Sabah and Kalimantan to the east coast of Borneo, and then a line around the northern coast of Borneo at a distance of 80.5 kilometres from its shore to the starting point. Since the operational area covers a band of 80.5 kilometres around the northern coast of Borneo, a substantial proportion, if not all, of the service duties described by the applicant in his evidence and also by the Report of Proceedings of Parramatta are included in item 6. Certainly, those duties undertaken at, and in approaching and leaving, the port of Jesselton were within the area covered by that item.

22. The applicant submitted that, apart from service in northern Borneo, his duties in Singapore and along the coast of Malaysia, to a distance of 50 miles (80.5 kilometres), were within an operational area described in Schedule 2.

23. Item 7 in Schedule 2 describes an area which is defined by a line which is the border between Thailand and Malaysia, and by a line around the Malay Peninsula at a distance of 80.5 kilometres from its shore. This area includes the applicant's service in Singapore harbour and Penang as described earlier. However, it is unlikely that the diversion to avoid the Indonesian submarine fell within the operational area described in item 7. The Report of Proceedings of Parramatta for June 1964 states (at paragraph 12) that Parramatta left Penang to escort Sydney on 18 June 1964. On 26 June 1964 Parramatta arrived at Fremantle, the journey taking eight days. Four days into that journey, on 22 June, Parramatta had to divert from its course to avoid an Indonesian submarine. The report does not state the location in which the incident occurred but, given that the course of Parramatta was to sail to the north and west of Sumatra from Penang, it is likely that after four days Parramatta would have been more than 80.5 kilometres off the coast of the Malay Peninsula and probably to the south of Sumatra.

(1) the service at Jesselton and a short distance from Jesselton

was performed in an operational area described in item 6;

(2) the service in Singapore, and the journey from Singapore to

Penang, were performed in an operational area described in item 7

in Schedule 2;

(3) most of the journey from Jesselton to Singapore did not fall

within an operational area described in items 4 to 8 in Schedule 2;

and

(4) the action taken on 22 June 1964 to avoid an Indonesian

submarine did not fall within an operational area described in

items 4 to 8 in Schedule 2.

25. The next step is to determine the meaning of the expression "allotted for duty" in paragraph (g) of the definition of "Australian Soldier" in s.4(1) of the Act and s.5(B)(2)(a) of the Veterans' Entitlements Act 1986. That expression is not one to which a meaning is easily attributed, as the Full Federal Court observed in Repatriation Commission v Doessel (1990) 95 ALR 704 at 708 - a case involving the interpretation of the same expression in s.5(12) of the Veterans' Entitlements Act, which was the predecessor of s.5B(2). According to s.15AB(1)(b)(i) of the Acts Interpretation Act 1901, the use of extrinsic aids is permitted for the purpose of ascertaining the meaning of an ambiguous provision in an Act. In this matter the task of assigning a meaning to the expression "allotted for duty" is assisted by reference, not only to decisions of the Federal Court (including Doessel) concerning the former s.5(12) of the Veterans' Entitlements Act, but also to the explanatory memorandum accompanying the 1990 amendments to that Act, including s.5B(2).

26. Upon the commencement of the Veterans' Entitlement Act on 20 May 1986, s.5(12) provided:

"In this Act, a reference to a person, or a unit of the Defence

Force, that was allotted for duty in an operational area shall be

read as a reference to a person, or a unit of the Defence Force:

(a) that was so allotted for duty in accordance with

administrative arrangements applicable in the part of the Defence

Force in which the person was serving, or of which that unit formed

part, as the case may be; or

(b) that is, by an instrument in writing signed by the Minister

for Defence, deemed to have been allotted for duty in an area

described in item 4 or 8 in Schedule 2 during the period specified

in that item."

27. The meaning of the expression "allotted for duty" first arose at Federal Court level in Repatriation Commission v Davis (1990) 94 ALR 621. That case concerned the assignment of HMAS Queenborough and HMAS Quickmatch to an area described by item 2 in Schedule 2 to the Veterans' Entitlements Act. The Repatriation Commission contended that it was only by virtue of particular "administrative arrangements" in the Department of Defence that a person was "allotted for duty". French J stated (at p 633):

"... The allotment for duty contemplated is that which designates or

appoints as 'on duty' those who are allocated to operational service

in an operational area. Where no such designation or appointment is

shown, the fact of allocation to service in the operational area

will suffice to answer the statutory description.

Approached in this way the concept of 'allotted for duty' has no

special meaning. It raises in each case a question of fact..."

28. In Repatriation Commission v Doessel (1990) 95 ALR 704 the Full Federal Court confirmed (at p 710) that the expression "allotted for duty" was to be understood in its ordinary sense "as meaning simply 'posted' or 'assigned'".

29. Shortly after the Full Court's decision in Doessel, the Federal Government introduced amending legislation to overcome the effect of that decision. Section 5(12) of the Veterans' Entitlements Act 1986 was repealed, and in its place s.5(B)(2) was inserted, by the Veterans' Affairs Legislation Amendment Act 1990.

30. Ms Sokolich referred the Tribunal to the explanatory memorandum which accompanied the Bill for the Amendment Act. That explanatory memorandum (at pp.34-35) stated that the relevant amendments were made "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'. The memorandum continued:

"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 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 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."

31. The explanatory memorandum also stated (p 36) that the relevant amendments "would seek to confirm the intention that the phrase 'allotted for duty' has a special meaning by: (i) making a specific reference to allotment being made by written instrument issued by the Defence Force and to such instruments being for use by the Commission in determining a person's eligibility for entitlements under the Principal Act; and (ii) by providing that such allotments could have been made prospectively or retrospectively." The memorandum added (p 37):

"The reference... to a 'written instrument issued by the Defence

Force' is a reference to Military Board Instructions, Australian

Army Orders, Commonwealth Navy Orders, Australian Navy Orders and

written Instruments of the Royal Australian Air Force."

32. It is clear from the above-quoted extracts from the explanatory memorandum and, indeed, from the plain words of s.5B(2) of the Veterans' Entitlements Act 1 1986 that a person may be "allotted for duty in an operational area" within the meaning of that subsection only by "written instrument", whether issued by the Defence Force, signed by the Vice Chief of the Defence Force, or signed by the Minister for Defence, as the case may be.

33. The respondent provided to the Tribunal a copy of a Commonwealth Navy Order issued in 1972 in relation to service in the "North Borneo and Malay Peninsula Areas." The respondent advised the Tribunal that this was the only written instrument issued in relation to that area. The Order dealt with the allotment of persons and ships for "special duty" in the relevant area. "Special Duty" is defined in paragraph 3 of the Order in such a way as not to include, inter alia, "service in ships engaged in escort duties". Furthermore, Annex B to the Order lists the ships which were allotted for "special duty" and the periods of their allotment. Although Parramatta is one of the ships listed, the periods of its allotment specified in Annex B do not coincide with the applicant's period of service on that ship.

34. The Tribunal finds, therefore, that the applicant was not "allotted for duty" by the Commonwealth Navy Order referred to in paragraph 33 above. Since this was the only written instrument of relevance to the area of the applicant's service, it follows that the applicant was not "allotted for duty" within the meaning of s.5B(2) of the Veterans' Entitlements Act 1986. The Tribunal concludes that the applicant is not an "Australian Soldier", as defined in s.4(1) of the Act and, therefore, is not an "eligible person" as defined in that subsection. This being the case, the issue of a Certificate of Entitlement to the applicant is precluded by s.18(1) of the Act.

35. It seems clear to the Tribunal that the applicant's service on Parramatta in 1964 occurred at a time of international tension between Malaysia and Indonesia in which Australia was, to some extent, also involved. It was in this region of international tension that the relevant deployment of Parramatta occurred. Probably because of the fact that some of the relevant documents have been declassified only recently, there has to date been little public knowledge and recognition of the related activities in which Australian service personnel, such as the applicant, were engaged.

36. The Tribunal believes there must have been some kind of an order issued to take Parramatta out of a previously authorised naval exercise and to place her on protective duties with the capital ship, Sydney, which was proceeding to Jesselton on a special operational task. Though the Tribunal, by direction, sought advice concerning the existence of any written authority or order requiring Sydney and Parramatta to undertake the voyage in contention, searches by the respondent were unable to locate any relevant information prior to the resumption of the hearing, and hence no such information was available to the Tribunal. It is, however, almost inconceivable that those ships would have embarked on such a sensitive voyage without the highest authority of the Naval Command and the sanction of the Australian Government. The fact remains, however, that no relevant instrument of the kind required by s.5B(2) of the Veterans' Entitlements Act was issued relating to the allotment of Parramatta, or the service of her crew.

37. The Tribunal has some sympathy for the applicant's view that the circumstances of his service on Parramatta are deserving of greater official recognition - for example, in terms of eligibility for benefits under the Act. However, under the relevant statutory provisions and documentation, as they presently stand, the applicant's service does not qualify for the issue of a Certificate of Entitlement under ss.17 and 18 of the Act.

38. For the above reasons the Tribunal affirms the decision under review.

39. This is the oral ruling (slightly edited) referred to in paragraph 7 of these reasons.

40. The Tribunal... is not satisfied that section 4(2) operates as an exclusion. A close examination of section 4(2) of the Defence Service Homes Act discloses that it is concerned with service in two areas, Korea and what is described as Malaya. We would emphasise Malaya. It does not refer to any other entity, such as the Federation of Malaysia or anything of that nature. The exclusion operates by reference to specific dates between 1950 and 1957 and the particularity of both the dates and the specification of Malaya becomes intelligible when one refers to the second schedule of the Veterans Entitlements Act.

41. That schedule sets out a number of items where service in particular areas, or in particular zones, constitutes operational service. It will be noted that item 2 of that schedule refers to service in what is effectively the geographic area of Malaya, between 1950 and 1957, but item 6 which appears to the Tribunal to be the relevant item, refers to service in, or in connection with, the Federation of Malaysia, at a time period which is coincidental with the period served by the applicant. The designated area under item 6, which, we will need further information about, apparently includes Sabah and the waters, regional waters appurtenant thereto.

42. That seems to be the operational, or relevant operational service, with which the application is concerned. So, the bottom line is that the exclusion under the Defence Service Homes Act is a very limited exclusion and only refers to a person who was serving in Malaya; that service in that circumstance would have to be between 1950 and 1957. It does not speak at all to the situation of service in relation to an area described in item 6 of the second schedule of the Veterans' Entitlements Act.