Veterans' Entitlements Act 1986, s. 5B, s. 7A, s. 6.

Repatriation Act 1920, s. 23, s. 84, s. 107B.

Acts Interpretation Act 1901, s. 15AA, s. 15AB.

Re Toyer and Repatriation Commission (1992) 16 AAR 508

Repatriation Commission v Hawkins (unreported, 22 September 1993, NG 353 of 1993, Judgment No 662/93, per Burchett, Einfeld and Beazley JJ).

Starcevich v Repatriation Commission (1987) 18 FCR 221

Solicitors for the Applicant: Legal Aid Commission of New South Wales

Solicitors for the Respondent: Compensation And Review Section,

1. Sets aside the decision of the Repatriation Commission dated 14

July 1992 which determined that the Applicant had not rendered

qualifying service for service pension purposes.

2. Substitutes therefor its decision that the Applicant has rendered

qualifying service for service pension purposes pursuant to sub

section 7A(1)(a)(iii) of the Veterans' Entitlements Act 1986.

M.T. LEWIS, D.W. LEACH AND I.R. WAY This is a review of a decision of the Repatriation Commission ("the Respondent") dated 14 July 1992 which determined that Robert Crawford Chasty ("the Applicant") had not rendered qualifying service for service pension purposes under section 7A of the Veterans' Entitlements Act 1986 ("the Act"). This decision affirmed an earlier decision by the Respondent dated 11 May 1992. The Applicant lodged an application for review by this Tribunal on 18 September 1992.

2. At the hearing the Tribunal had before it the documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (exhibit 1) and the following documents which were tendered by the Applicant: statement of the Applicant dated 31 August 1993 (exhibit A); report of Dr J Grey, senior lecturer in history, dated 31 August 1993 (exhibit B). The Tribunal also heard oral evidence from the Applicant.

3. The issue to be decided by the Tribunal is whether the Applicant has rendered "qualifying service" in accordance with the sub-section 7A(1)(a)(iii)(A) of the Act. The relevant provisions are set out in detail below:

"Qualifying service

7A (1) For the purposes of Part III, a person has rendered

qualifying service:

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

(i) rendered service, during a period of hostilities specified in

paragraph (a) or (b) of the definition of 'period of hostilities' in

subsection 5B(1), at sea, in the field or in the air in naval, military

aerial operations against the enemy in an area, or on an aircraft or ship

of war, at a time when the person incurred danger from hostile forces of

the enemy in that area or on that aircraft or ship; or

(ii) rendered service after 29 October 1945 in respect of which the

person has been awarded, or has become eligible to be awarded, the Naval

General Service Medal or the General Service Medal (Army and Royal Air

Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance

1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and

Mine Clearance 1945-56 Clasp; or

(iii) rendered service outside Australia:

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

or

(B) as a person who was allotted for duty;

in an area described in item 1, 2, 4, 5, 6, 7, 8, 9 or 10 of Schedule 2

(in column 1) during the period specified in column 2 of that Schedule

opposite to that description; or

. . ."

"SCHEDULE 2

OPERATIONAL AREAS

Description of operational areas Period

Column 1 Column 2

1. The area of Korea, including The period from and including 27

the waters contiguous to the June 1950 to and including 19

coast of Korea for a distance of April 1956

185 kilometres seaward from the

coast.

. . ."

"Allotted for duty

5B (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

the area (whether retrospectively or otherwise) by written instrument

issued by the Defence Force for use of the Commission in determining a

person's eligibility for entitlements under this Act; . . ."

4. At the hearing the parties lodged a statement of agreed facts. There was no dispute between the parties about the essential facts of the case, which were that the Applicant served as a member of the British Commonwealth Engineers' Regiment (Australian Component) in Japan from 9 July 1953 to 5 September 1955. The Applicant gave evidence that he was initially sent to Japan as a refrigeration mechanic, where he was stationed at Point Camp, Kure. After eleven months he was transferred to a firefighting unit in the camp. His duties as fire chief of the regiment included supervising and training fire crews, checking on all fire equipment and ensuring repairs were carried out on firefighting equipment. Equipment from Korea was also sent to Japan for repair.

5. It was agreed that the Applicant's unit was allotted for duty in the operational zone specified in item 1, Schedule 2 of the Act. The unit was an authorised unit in direct support of operations in Korea. It was further agreed that the Applicant did not personally enter the operational zone of Korea as specified in item 1, Schedule 2 of the Act. It was accepted, however, that other members of the Applicant's unit regularly entered the operational zone. The Applicant gave evidence that his sergeant was sent to Korea on firefighting training while he remained in Point Camp to look after the fire stations. He estimated that about half of the members of his unit were sent to Korea to replace fire fighting personnel there. It was possible that the Applicant could have been sent to Korea, particularly if there had been a serious fire.

6. The facts involved in this matter are very similar to those in the case of Re Toyer and Repatriation Commission (1992) 16 AAR 508. In Re Toyer the Applicant and his unit were also allotted for duty to Korea but he served in Japan without ever visiting Korea. The Applicant in this case submitted that the decision in Re Toyer should be followed by this Tribunal. Adopting the reasoning in Re Toyer, the Applicant argued that there was no ambiguity in the words of sub-section 7A(1)(a)(iii)(A) and they ought to be given their plain and literal meaning. It was argued that Mr Chasty was a person who had rendered service outside Australia as a member of a unit of the Defence Force that was allotted for duty in an area described in item 1 of Schedule 2. On its face, the section did not require an individual member of the unit to actually enter the operational area and therefore no such requirement ought to be read into the provision.

7. The Applicant cited passages from the decision in Re Toyer to support his contentions, and in particular drew the Tribunal's attention to extracts from the following passage in that decision, as quoted below (p 511) -

"The Tribunal is satisfied that ss 7A(1)(a)(iii) and 5B(2) of the Act

can be read in the manner contended for by the applicant without putting

any strain on their literal meaning. The applicant was a member of the

Defence Force who rendered service outside Australia as a member of a

of the Defence Force that was allotted for duty in an area described in

item 1 of Sch 2. Clearly the section cannot be read so as to link the

early part of the section `if the person has, as a member of the Defence

Force - rendered service outside Australia' with the latter part of the

section, that is, `in an area described in item 1 . . . of Schedule 2'.

Undoubtedly, this latter part flows on from parts (A) and (B). Hence, it

would be erroneous to say that the applicant's case failed because he did

not render service outside Australia in an area described in item 1 of

2. According to the section, his unit must have been allotted to such an

area. The section says nothing about individual members of the allotted

unit actually having physical presence in the allotted area.

Similarly, s 5B(2) of the Act does not say that individual members of the

allotted unit must have actually carried out service in the operational

area. It also distinguishes between the allotted individual and the

allotted unit, but does not draw any distinction between individual

members within the allotted unit. It simply says, in so far as is

relevant, that a reference to a unit that was allotted for duty in an

operational area is a reference: in the case of duty that was carried out

in an operational area described in item 1 of Sch 2 - to a unit that is

allotted for duty in the area".

8. In addition to the submissions that the Tribunal adopt the reasoning in Re Toyer, the Applicant compared the wording of sub-section 7A(1)(a)(iii) with sub-section 85(9) of the Act, which deals with a veteran qualifying for treatment of an injury or disease. Relevantly, section 85 provides -

"(9) Where -

(a) a veteran, while a member of the Defence Force, rendered

continuous full-time service outside Australia in the area described

in item 4 or 8 of Schedule 2 (in column 1) while that area was an

operational area, whether or not the veteran rendered that service -

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

duty; or

(ii) as a person who was allotted for duty,

in that area;. . . . . . . . "

9. The Applicant argued that this provision was an example where the Legislature required a veteran to render actual service in the operational area in order to get the benefit of the provision. Had the same requirement been intended to satisfy the term "qualifying service", the Legislature would have used appropriate words which, in the Applicant's submission, have not been used.

10. Finally, the Applicant submitted that if the Tribunal was of the view that the wording of sub-section 7A(1)(a)(iii) was ambiguous, it ought to consider the object and purpose of the Veterans' Entitlements Act 1986. Section 15AA of the Acts Interpretation Act 1901 was referred to, which provides -

"(1) In the interpretation of a provision of an Act, a construction

that would not promote the purpose or object underlying the Act (whether

that purpose or object is expressly stated in the Act or not) shall be

preferred to a construction that would not promote that purpose or

object."

It was submitted that the Act was beneficial legislation, its purpose being to provide pensions, treatment and other benefits to veterans and certain other people. The interpretation of section 7A submitted by the Applicant, it was argued, gave effect to the purposes of the Act and should be preferred by the Tribunal in accordance with section 15AA.

11. The Respondent in these proceedings sought to argue that Re Toyer was wrongly decided. The Respondent submitted that sub-section 7A(1)(a)(iii)(A) required a veteran not only to be a member of a unit that was allotted for duty in a specified area but also that the veteran must personally serve in that area. Consequently, the Respondent argued that as the Applicant had never entered the operational area specified in item 1 of Schedule 2, he had not rendered qualifying service within the meaning of the sub-section.

12. In support of these contentions, the Respondent sought to rely upon the intention of the legislation, the legislative history of the provision and the context in which sub-section 7A(1)(a)(iii) was found within the legislation. The Respondent put the view that the Tribunal in Re Toyer was not specifically referred to argument about sub-section 7A(1)(a)(iii), rather, it heard argument from the Respondent in that case on the interpretation of sub-section 5B(2). It was conceded that sub-section 5B(2)(a) did not require that a veteran personally serve in the operational area. It only required that the unit, of which the veteran was a member, carry out duty in the area.

13. The Respondent went on to submit that section 5B was only the first step in deciding the issue of "qualifying service". If the veteran satisfies the requirement in sub-section 5B(2) that he or she is "allotted for duty" (it is accepted that the Applicant satisfies this requirement) then section 7A is considered.

14. The submission of the Respondent was that the words -

". . . in an area described in item 1, 2, 4, 5, 6, 7, 8, 9 or 10 of

Schedule 2 (column 1). . .",

contained in sub-section 7A(2)(a)(iii) must be read as qualifying the words "rendered service outside Australia" as well as the requirements in sub-paragraphs (A) and (B). This leads, the Respondent argues, to a proper interpretation of the provision requiring -

1. that the veteran render service outside Australia and that the

service be in an area described in the relevant items in Schedule 2;

and

2. that service be as a member of a unit of the Defence Force that was

allotted for duty.

15. In support of these contentions, the Respondent referred the Tribunal to the Explanatory Memorandum of the Veterans' Entitlements Bill 1985, which was eventually passed by the Parliament as the Veterans' Entitlements Act 1986 (No 27 of 1986). Clause 36 of that Act introduced the term "qualifying service", and the Explanatory Memorandum states -

"Qualifying service will have the same meaning as 'served in a theatre

of war' in section 28 of the Repatriation Act 1920".

The clause goes on to outline what is required for qualifying service in different circumstances so that, for example, for World War I or World War II, the person had to incur danger from hostile forces of the enemy (now sub-section 7A(1)(a)(i)). The Respondent argued that there is a common element in the provisions preceding sub-section 7A(1)(a)(iii), namely that there is a requirement for danger to have been faced by the veteran. Sub-section 7A(1)(a)(ii) follows on from (i) and relates to people involved in mine sweeping or bomb clearing activities, activities which are by their nature dangerous. The Respondent argued that it would be inconsistent not to impart this element of "danger" into a proper reading of the paragraph which follows immediately from those provisions, so that it must have been intended that the veterans who came under the allotment provisions in sub-section 7A(1)(a)(iii) actually enter the operational area. The Explanatory Memorandum referred to above set out the following in relation to the provisions -

"Qualifying service for Australian veterans will be service :

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . .- .

in an area specified in Schedule 2 to the Bill - i.e. Korea, Malaya (up

31 August 1957) and Vietnam where the person was allotted for duty or was

a member of a unit allotted for duty; . . ." (emphasis added).

It was accepted by the Respondent that the Explanatory Memorandum did not expressly state that the member of the unit allotted for duty to an operational area had to enter the area personally in order to satisfy the provision.

16. The Respondent then referred the Tribunal to section 84(1)(a) of the Repatriation Act 1920 ("the 1920 Act"), the predecessor to the current Act. That section provided that a service pension may be granted to a male member of the Forces if he had reached the age of 60 and had "served in a theatre of war". The term "served in a theatre of war" was defined in section 23 of the 1920 Act to mean -

". . .served at sea, in the field or in the air, in naval, military or

aerial operations against the enemy in an area, or on an aircraft or ship

of war, at a time when danger from hostile forces of the enemy was

incurred in that area or on that aircraft or ship of war by the person so

serving;"

17. The Tribunal was then taken to Division 8 of the 1920 Act which extended the application of earlier divisions to include certain male members of the Forces in Korea and Malaya. Section 107A(2)(c) provided that any reference to service in a theatre of war included service in an operational area. "Operational area" was defined in section 107B(1) to mean -

". . .an area outside Australia that is prescribed to be an

operational area for the purposes of warlike operations in Korea

after 26 June 1950 or in Malaya after 28 June 1950".

The Respondent submitted that these provisions made it clear that, at least under the 1920 Act, an individual had to serve in the operational area in order to qualify for a service pension. The intention of these provisions, it was submitted, were expressly carried over into the 1986 Act by the amendments introduced by the Veterans' Entitlements Act 1986 (No 27 of 1986).

18. Reference was made by the Respondent to the general history and purposes of service pensions. The service pension was introduced from 1 January 1936 by the Australian Soldiers' Repatriation Act 1935 (Act No. 58 of 1935). The Respondent cited a passage from the Second Reading speech of Prime Minister Lyons when the Bill was introduced (Hansard 148, p 1814). Other Parliamentary speeches dealing with the subject of service pensions were also referred to by the Respondent. It was contended these speeches provided ample illustration of the notion that in order to be eligible for a service pension, the veteran has to render service which was considered dangerous or service which the legislation deemed to be dangerous.

19. A distinction was drawn between the concepts of "service in a theatre of war" and allotment. The latter was created because the conflicts in Korea, Malaya, Borneo and Vietnam did not lend themselves easily to the concept of a "theatre of war" because there was no declaration of war by Australia and no defined enemy. It was acknowledged that the "incurred danger" test was not appropriate because of the different nature of the war. The allotment provisions were an administrative convenience which simply removed the need to assess the claim of each individual veteran on the issue of whether they had incurred danger. It was a deeming mechanism based on assumptions that veterans serving in the specified area were likely to have incurred danger. The allotment provisions did not, however, remove the underlying need for there to be actual service by a veteran in an operational area.

20. The Applicant has submitted that the words used in sub-section 7A(1)(a)(iii) are clear and unambiguous and should be given their ordinary meaning when applying the provision. The Respondent has invited the Tribunal to construe the words of the sub-section in a way in which, it argues, is consistent with the intention of the Legislature as revealed by the legislative history and intention of the provision.

21. The question of whether it is open to the Tribunal to refer to extrinsic material when considering an issue of statutory interpretation has been the subject of considerable judicial discussion, and is specifically referred to in section 15AB of the Acts Interpretation Act 1901. The relevant parts of the section are as follows:-

"(1) Subject to sub-section (3), in the interpretation of a

provision of an Act, if any material not forming part of the Act is

capable of assisting in the ascertainment of the meaning of the

consideration may be given to that material -

(a) to confirm that the meaning of the provision is the ordinary meaning

conveyed by the text of the provision taking into account its context in

the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when -

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking

into account its context in the Act and the purpose or object underlying

the Act leads to a result that is manifestly absurd or is unreasonable.

(2) . . . .

(3) In determining whether consideration should be given to any

material in accordance with sub-section (1), or in considering the weight

to be given to any such material, regard shall be had, in addition to any

other relevant matters, to -

(a) the desirability of persons being able to rely on the ordinary

conveyed by the text of the provision taking into account its context in

the Act and the purpose or object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without

compensating advantage."

22. Deputy President R K Todd considered the adoption of the course of referring to extrinsic materials when interpreting the provisions of the Superannuation Act 1976 in a taxation appeal, Case U114 (1987) 1 ATC 682. The Deputy President said that consideration had to be given to common law rules of statutory interpretation and the relevant provisions of the Acts Interpretation Act 1901. In relation to section 15AB, he said (at p 685) -

"As s 15AB(1)(b) envisages that the 'meaning of the provision' must be

determined, it presupposes a situation in which the meaning of the

provision is ambiguous or obscure. If, however, the provision in

has an 'ordinary meaning', which I take to mean a natural or literal

reading, there is neither need nor warrant for resorting to extrinsic

material, other than for the purpose of confirming that ordinary meaning.

The only result of so doing would be to create a doubt that was not

present when the 'ordinary meaning' of the provision was apparent on its

face. The fact is that if the words of the legislation are clear, it is

simply not correct to resort to extrinsic materials, or to experience

and/or knowledge of the circumstances in which the legislation was drawn,

to create a doubt that is not apparent on the face of the legislation.

There is no warrant for the use of extrinsic materials to create

ambiguities that are not there.

There is no ambiguity, for present purposes, in such of the provisions of

the 1976 Act as are here under consideration, and it is therefore not

to the applicant to produce extrinsic material in an attempt to show that

he 'used his lump sum to purchase the additional pension'. It follows

also that neither is there any room for application of the common law

rules as to construction of ambiguous or obscure statutory

provisions".

23. We agree with those comments of the Deputy President and consider that they apply directly to the present case. In our view, the words of sub-section 7A(1)(a)(iii) are unambiguous and we agree with the submissions made by the Applicant in relation to their construction. We agree with the decision in Re Toyer regarding the effect of the words, and there is no warrant for the Tribunal to refer to extrinsic material to assist it to interpret the provisions. In the light of the clear and unambiguous words of the sub-section, the Tribunal cannot read into the legislation words which are not there and cannot construe the provision in a manner which is not supported by those words. We agree with the comments in Re Toyer about the construction of sub-section 7A(1)(a)(iii)(A)-

"Nevertheless, there is nothing in the Act allowing the Tribunal to

differentiate between those persons who rendered service as part of an

allotted unit, whether in or outside the allotted area, in respect of the

hazardous nature of their service". ( p 512)

24. Since the hearing of this matter, there has been a recent decision of the Full Federal Court in Repatriation Commission v Hawkins (22 September 1993, NG 353 of 1993, Judgment No 662/93 per Burchett, Einfeld and Beazley JJ). Although not directly dealing with the provision which is the subject of this application (the issue before the Court was "operational service" not "qualifying service"), the case is relevant insofar as it discusses the concept of allotment for duty in the context of section 6 of the Act.

25. In Hawkins, the veteran had served on the HMAS Sydney when it was sent to Vung Tau in South Vietnam with supplies and reinforcements. One of the issues in the appeal was whether the HMAS Sydney had been "allotted for duty in an operational area". This issue was important as it related to whether the veteran had operational service. Sub-section 6(1)(e) provides that for the purposes of the Act -

"a person who has, 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; or

(ii) as a person who was allotted for duty,

in an operational area (not being service rendered, as a member of the

Naval Forces in the complement of a sea-going vessel, in the area

described in item 2 or 3 of Schedule 2 (in column 1) while that area was

an operational area), shall be taken to have been rendering operational

service during the period in which the person or the unit was so allotted

for duty;"

Sub-section 6(5) goes on to define when the operational service of the person will be taken to have commenced and ended. The wording of sub-section 6(1)(e) is almost identical to that of sub-section 7A(1)(a)(iii), the relevant provision before this Tribunal.

26. In Hawkins the Commission argued that the veteran's unit was not "allotted for duty" in Vung Tau as it was not placed within the structure of local control which governed the movement and duties of servicemen in the operational area. The Full Court rejected this argument, noting that the Act does not require a claimant to have rendered continuous full-time service in an operational area for any particular period, nor is it necessary that an allotment for duty was for any particular period. The discrimen selected by the Act relates to the area in which the service is performed, not the nature of the duties.

27. The Court also rejected the Commission's submission that section 6(5) did not apply to this case. Sub-section 6(5) extends the period of operational service so that where a person was allotted for duty in an operational area at a time when the person was in Australia, the period commences on the day of departure from the last port of call in Australia. The Commission sought to distinguish between a personal allotment for duty and the allotment for duty of a unit of which the person was a member. The Court rejected this distinction after examining sub-section 6(1)(e) and sub-section 6(4). The reference in sub-section 6(5) to a person being allotted for duty in an area, includes both a personal allotment and an allotment by virtue of a unit of which the person is a member being allotted for duty in that area.

28. Even if there was any doubt about the construction of the section, the Full Court considered that it should be resolved in favour of the seaman having regard to the Explanatory Notes and the fact that the Veterans' Entitlements Act 1986 is beneficial legislation. The Court cited the views of Fox J in Starcevich v Repatriation Commission (1987) 18 FCR 221, at p 225. His Honour said -

"It is hardly necessary to say so, but the legislation should in my

view be given a reasonably liberal interpretation; it has often been

pointed out that it is a matter of great public importance to provide

adequately for incapacitated ex-servicemen".

29. The Tribunal believes that the approach taken by the Full Court in interpreting the provisions which were relevant in Hawkins supports the approach we have taken in the interpretation of sub-section 7A(1)(a)(iii). We would add that if there was any doubt about the construction we have placed on sub-section 7A (we firmly believe that there is no doubt) it should be resolved in favour of the Applicant in this case on the basis that, as their Honour's put it, the provision is plainly one which is intended to operate by way of extension of the benefits conferred by the Act.

30. The parties have agreed that the Applicant was a member of the Defence Force and rendered service outside Australia as a member of a unit that was allotted for duty in an area described in Item 1 of Schedule 2 of the Act. Accordingly, the Tribunal finds that the Applicant has rendered qualifying service pursuant to sub-section 7A(1)(a)(iii)(A) of the Act and therefore sets aside the decision under review.