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[2010] AATA 581
appellant. The Tribunal set aside the decision under review (the delegate's internal review decision of 12 February 2010) and remitted the matter to the Secretary to consider the applicant's 30 October 2009...
The Tribunal found that Warrant Officer Barry Conroy remained a member of the Defence Force when he applied for a further home ownership subsidy on 30 October 2009 because he had been validly transferred to the Army Reserves and there was no evidence his service had been terminated. The Tribunal held that s 5 of the Scheme Act does not operate to treat him as no longer a member for the Scheme's purposes. Because the delegate's internal review decision assumed he had been discharged, the Tribunal set that decision aside and sent the matter back to the Secretary to reconsider the application treating Mr Conroy as a Defence Force member.
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1,879 words · generated 01/07/2026
Warrant Officer Barry Conroy, a long-serving member of the Australian Army who transferred from permanent service to the Army Reserves in mid‑2008, sought a further subsidy certificate under the Defence Home Ownership Assistance Scheme (the Scheme). The applicant had previously been granted a subsidy certificate on 14 July 2008 (Reasons). He applied for another subsidy certificate on 30 October 2009. The Department of Veterans Affairs (DVA) refused the application on 2 November 2009. The Secretary's delegate, on internal review under the Scheme, confirmed the refusal on 12 February 2010. The delegate's reasoning rested on an assumption that the applicant had 'stopped being a member of the ADF' and therefore was a 'separated member' within the meaning applied by the delegate. The applicant sought review by the Administrative Appeals Tribunal (AAT) under s 76 of the Defence Home Ownership Assistance Scheme Act 2008. The Tribunal (Senior Member Dr P McDermott) held that the applicant remained a member of the Defence Force on 30 October 2009, that s 5 of the Scheme Act did not operate to deem him not to be a member for the Scheme's purposes, and set aside the delegate's internal review decision, remitting the matter to the Secretary for reconsideration treating the applicant as a 'member of the Defence Force' for the purposes of s 17(1)(c) (Decision).
2 cited instruments linked from this judgment.
Key documentary facts: a Discharge or Transfer Certificate dated 19 March 2008 recorded approval to transfer the applicant to the Reserves effective 7 July 2008 under regulation 56 of the Defence (Personnel) Regulations 2002 (Reasons). There was no evidence the applicant's service had been terminated under the Defence (Personnel) Regulations. The Tribunal accepted the transfer certificate and absence of termination as evidence that the applicant remained a member of the Defence Force (in the Reserves) at the time of the application.
Procedural posture: AAT review of an internal review decision made under s 75(2) of the Scheme Act (AAT review permitted under s 76(1)). The Tribunal set aside the delegate's decision and remitted the application to the Secretary for reconsideration.
Two principal legal determinations underpinned the Tribunal's decision.
Membership status under defence law must be determined with reference to the Defence Act and relevant Defence Regulations rather than by an internal deeming or administrative gloss in the Scheme. The Tribunal noted that 'Defence Force' is not defined within the Scheme Act and considered the Defence Act 1903 and the Defence (Personnel) Regulations as necessary to understand the concept of membership (Reasons). The transfer certificate was evidence that the applicant had been moved from permanent service to the Reserves under reg 56; that transfer does not equate to termination of service. There was no evidence of regulatory termination. On that basis the Tribunal found the applicant remained a member of the Defence Force at the time he applied.
Section 5 of the Scheme Act does not operate as a deeming provision that displaces actual membership. The Secretary had submitted that s 5 should be read to treat the applicant as having ceased to be a member for the Scheme's purposes. The Tribunal examined the statutory text, context and the Explanatory Memorandum and concluded s 5 was intended to enable variations to subsidy authorisations under s 45 and to operate 'for the purpose of the Scheme' rather than to end a person's engagement in the Reserves (Reasons). The Tribunal therefore rejected the Secretary's contention that s 5, read purposively, meant the applicant was not a member for Scheme purposes.
Because the delegate relied upon the erroneous assumption that the applicant had been discharged or had 'stopped being a member' when the evidence indicated otherwise, the delegate's internal review decision was found to be unsound. Administrative review powers allowed the Tribunal to set aside that decision and remit the matter with a direction to treat the applicant as a member for s 17(1)(c) purposes.
In short: the Tribunal treated the statutory architecture governing Defence membership as determinative; it treated the Scheme's internal provision (s 5) as purpose-limited and not a statutory engine for re‑defining membership; and it corrected the delegate's error of fact/law by setting aside and remitting the decision.
Before this decision, the Scheme had been administered in at least some instances by treating transfers to the Reserves (or related administrative events) as concluding membership for Scheme purposes, with internal reviewers treating particular applicants as 'separated members' and applying s 17(1)(c) accordingly.
This AAT decision clarifies two points:
The meaning of 'Defence Force' for the Scheme is to be informed by the Defence Act and Defence (Personnel) Regulations. A transfer to the Reserves under the Regulations is consistent with continued membership of the Defence Force unless there is evidence of termination under those Regulations.
Section 5 of the Scheme Act is not a broad deeming provision to reclassify a person's membership status; rather it serves within the Scheme's architecture to enable the Secretary to vary authorisations (linked to s 45) and operates 'for the purpose of the Scheme' without purporting to terminate service.
After this decision, practitioners can point to the AAT's reasoning when contesting administrative decisions that rely on s 5 to deny membership-based entitlements to persons who have transferred to the Reserves without regulatory termination. The decision requires decision‑makers to identify and address actual evidence about regulatory termination before concluding someone has 'stopped being a member' for Scheme purposes.
Quoted passage (Tribunal finding): "In my opinion, for the following reasons, he was at that time a member of the Defence Force." Plain English: The Tribunal concluded the applicant was still a Defence Force member when he applied for the subsidy.
Quoted passage (construction point): "The expression 'Defence Force' is not defined in the Act. In my view, to understand that expression it is necessary for me to have regard to the Defence Act 1903 (Cth)." Plain English: Since the Scheme does not define 'Defence Force', the Tribunal looked to the Defence Act and Regulations to decide what 'Defence Force' means.
Quoted passage (on transfer): "Having regard to the evidence before me, I find that the applicant when he made his application on 30 October 2009 was a member of the Defence Force." Plain English: Because the applicant had a valid transfer to the Reserves and no proof of termination, he remained a member when he applied.
Quoted passage (on s 5): "I have taken the view that the purpose of s 5 is to enable the Secretary to vary the authorisation of subsidy to a member under s 45 of the Act. In my opinion the terms of s 5 does not operate to deem an applicant to be no longer be a member of the Defence Force." Plain English: Section 5 is about how subsidies are authorised and adjusted within the Scheme; it does not change whether someone is a member of the Defence Force.
Quoted passage (disposition): "I set aside the decision under review and remit the matter to the Secretary ... in accordance with the direction that the applicant is 'a member of the Defence Force' for the purposes of s 17(1)(c)." Plain English: The Tribunal cancelled the delegate's decision and sent the application back, telling the Secretary to consider it again treating the applicant as a Defence Force member.
This decision is directly relevant where:
A defence member has transferred from permanent service to any Reserve category (including inactive Reserves) under the Defence (Personnel) Regulations, and subsequently applies for an entitlement under a scheme that depends on 'membership' status.
An administrative decisionmaker relies on an internal clause of a scheme to treat the person as having ceased to be a member for scheme eligibility, rather than examining the Defence Act/Regulations and the actual transfer/termination documentation.
A delegate's decision is founded upon an assumption that a person has 'stopped being a member' without documentary proof of termination under the Defence (Personnel) Regulations.
Practitioners should ensure the decision-maker has direct evidence of regulatory termination, and not merely a change of category from permanent to Reserve, before accepting that an individual is no longer a member for an entitlement that depends on membership.
This decision is an AAT determination and is directly binding only on the parties. It interprets how the Scheme Act interacts with Defence legislation and emphasises fact-based findings about membership. Subsequent tribunals and decision-makers facing similar fact patterns will be able to rely on the reasoning as persuasive AAT authority: check for later AAT or judicial decisions that apply, distinguish or overrule the AAT's approach. The judgment itself cites Millar v Bornholt [2009] FCA 637 (see Reasons, fn [8]) in relation to matters of termination under the Regulations; the AAT treated that higher-court material as relevant background rather than as controlling authority for the Scheme's construction.
Practitioners should monitor whether cases in the Federal Court or full Federal Court consider the same interplay between s 5 of the Scheme Act and membership status, because judicial confirmation would give the construction stronger precedential effect. Until such judicial decisions appear, this AAT decision is an important administrative precedent requiring proper evidential assessment of transfer/termination under the Defence Regulations.
The precise statutory interaction between the Scheme's internal provisions (such as s 5) and other Commonwealth legislation dealing with Defence membership has been clarified in this case only as to its purposive effect. A higher court could further define the limits of s 5, for example whether any particular factual configurations could lead s 5 to operate as a deeming provision in rare circumstances.
The decision relies on absence of evidence of termination under Defence regulations. There remains a question as to what specific documentary proof will suffice to establish termination in other fact patterns, for example, whether administrative notes, personnel system entries, or other communications short of a formal termination certificate might suffice.
The AAT treated the Explanatory Memorandum as informative of the purpose of s 5. Future cases might test the extent to which extrinsic materials can determine eligibility when the Scheme Act itself is silent about particular boundary questions.
Re‑joining member issues were notified during the hearing as potentially relevant for eligibility. The Tribunal did not decide entitlement issues beyond membership status. Questions remain about how the Scheme treats re‑joining members and whether procedural fairness or other equitable considerations (for example, reliance on DVA advice leading to detrimental action) may create further entitlements or remedies.
Finally, while this AAT decision requires decision-makers to attend to the Defence Act and Regulations, there will be factually close cases, for example where transfer paperwork is ambiguous, that require fine-grained factual assessment and may invite appellate review for clarification of the standards of proof and interpretation to be applied.
Practitioners should, when advising clients or preparing judicial review material, gather clear documentary evidence of transfer and of any regulatory termination, analyse the Scheme Act provisions in context (including s 5 and s 17), and be prepared to argue the purposive and textual limits of any deeming or 'for the purpose of the Scheme' provisions relied upon by decision-makers.
DECISION AND REASONS FOR DECISION [2010] AATA 581
The Tribunal sets aside the decision under review and remits the matter to the Secretary to consider the application dated 30 October 2009 by Warrant Officer Barry Conroy for assistance under the Defence Home Ownership Assistance Scheme in accordance with the direction that the applicant is "a member of the Defence Force" for the purposes of s 17(1)(c) of the Defence Home Ownership Scheme Act 2008 (Cth).
...............[Sgd]...............................
DEFENCE - Defence Home Ownership Assistance Scheme - Application for Subsidy Certificate - Whether the applicant as a member of the Army Reserve is a member of the Defence Force - Applicant held to be a member of the Defence Force - Decision under review remitted.
Defence Act 1903 (Cth) Div 1, Pt 3, s 32A
Defence Home Ownership Scheme Act 2008 (Cth) ss 5, 12, 14, 16, 17, 44, 45, 71, 73, 75, 76
Millar v Bornholt [2009] FCA 637; (2009) 257 ALR 263
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ................[Sgd].............................................................
Solicitor for the Respondent Michael Palfrey, Clayton Utz
[1] Certificate of Service, 24 April 2009, fol 81.
[3] Respondent's Statement of Facts and Contentions, 28 May 2010, para 9.
[4] Respondent's Statement of Facts and Contentions, 28 May 2010, para 13.
[8] See Millar v Bornholt [2009] FCA 637; (2009) 257 ALR 263 at 282 [72] per Logan J
[9] Respondent's Statement of Facts and Contentions, 28 May 2010, para 14.
[10] Defence Home Ownership Assistance Scheme Bill 2008 (Cth) Explanatory Memorandum p 5.
Millar
Bornholt
(2009) 257 ALR 263
The Tribunal set aside the decision under review (the delegate's internal review decision of 12 February 2010) and remitted the matter to the Secretary to consider the applicant's 30 October 2009 application in accordance with the direction that the applicant is 'a member of the Defence Force' for the purposes of s 17(1)(c) of the Defence Home Ownership Assistance Scheme Act 2008.