AN15 AUSTRALIAN MARINER - RESIDENT IN AUSTRALIA FOR 12 MONTHS

Advisory from Disability Compensation Branch

No 15 of 2000

This is an advisory note only.  Disability Compensation Branch. Income Support and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

AUSTRALIAN MARINER

"Resident in Australia for 12 months"

Background

The extension of the Gold Card resulted in claims from people who had a close connection with Australia prior to serving in Commonwealth or allied forces during World War II.

Under the VEA, members of the forces of Commonwealth and allied countries who were domiciled in Australia immediately before enlistment and mariners who were resident in Australia for 12 months prior to engagement on seagoing vessels may be deemed to be 'Australian'.  As a consequence they may be eligible for the Gold Card.

This Advisory does not affect anything concerning "veterans" and the question of "domicile".  The term "domicile" has quite a different meaning in very particular cases.  This Advisory is about “mariners” and “residency” only.

LEGISLATION AND POLICY

Section 5C of the VEA defines an Australian mariner in part as:

"(b) a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a ship registered outside Australia who was, or whose dependants were, resident in Australia for at least 12 months immediately before he or she entered into the agreement or indenture".

This had been interpreted to mean actual presence in Australia, that is, an unbroken period of 12 months in Australia.  Support for this view was thought to be in the Income Support eligibility provisions contained in section 36H, 37H and 38H of the VEA which require that in order for a claim for service pension to be a proper claim, the person must be:

1. an Australian resident; and
2. in Australia;

on the day on which the claim is lodged.

APPLICATION OF THE LAW

In a matter under review, and likely to go to the Federal Court, a merchant mariner claimed for recognition as an "Australian mariner".  Counsel's opinion was sought on the issue of the period of residence in Australia.

In the case examined by counsel, the applicant, a New Zealander, was employed as a mariner on merchant ships during World War II.  In April 1942 he discharged from a ship in Australia and made Australia his home.  Between April 1942 and October 1943 he spent approximately five months in Australia and the remainder of the time at sea.  In October 1943 he signed on as a seaman with the United States Army Transportation Corps (USATC).

Counsel's opinion concluded that "resident", within the legal meaning of that term, within Australia for 12 months prior to entering into an agreement in sea-going service on a ship, does not require that the person maintain a physical presence in Australia for 12 months.  What is required is that a person establishes a home in a particular place, retain a continuity of association with that place and has an intention to return to that place.

Other court cases and decisions on residence also provide that a person may be resident in more than one place at the same time.

A person's residency ends only when the criteria (s 5G of the VEA), that initially established that residency, are no longer met.  That is, where there are no longer any physical, financial, familial or social ties and no further intention to regard that place as home, the period of residency ends.

APPLICATION TO PARTICULAR CIRCUMSTANCES

In the particular case referred to the mariner commenced to be resident in Australia in April 1942 and joined the USATC in September 1943.  During that period he was physically absent from Australia between May 1942 and June 1943 when he served on the foreign registered merchant ship Westralia.

Provided the mariner's connections with Australia established that he was truly resident, in the legal sense, in Australia in April 1942, then the period of residence began from that date.  Having established his home in Australia, residence did not require his actual presence in Australia.  Consequently the period of residence was unbroken by his service at sea on the Westralia.

However, there is one further requirement and that concerns the length of the residency before service on the merchant ship can be considered.

From the time of taking up residence, a period of 12 months must pass before any service on a foreign registered ship can be considered.  Any service at sea during that 12-month period does not count as service on a foreign registered ship for the purposes of the definition of Australian mariner.  In the particular case the mariner had been resident in Australia for one month immediately before he entered into the agreement to serve on the Westralia, therefore that service is not taken into account for the purpose of serving on a ship.

However, the mariner had another period of service on a different ship.  He joined the USATC some 17 months after the period of residency began. His service with USATC was therefore service on a foreign-registered ship for the purpose of the definition of Australian mariner.

He therefore satisfied the requirement of 12 months residency in Australia immediately prior to signing on to a foreign registered ship.

CRITERIA TO BE MET

Any employment agreement, which was signed prior to the completion of 12 months residence in Australia, prevents a person meeting the residency requirement.  However, if, after completing 12 months residency, the person signed on for a further period at sea on another vessel or for a completely new period on the same vessel, this service satisfies the requirements of the VEA.

If the residency requirement is not met, a person may still be considered to be a Commonwealth or allied mariner provided they were employed on a Commonwealth or allied ship.  It is important to ensure that the ship belonged to an allied country and not a neutral country (eg Sweden), or a country at war with Australia.

COMMISSION POLICY

The Repatriation Commission considered the matter described above, including advice from counsel, and agreed that:

• "Resident in Australia for 12 months" does not require physical presence in Australia for 12 months;  and

• If residency commenced on a particular date, the period of residency is counted from that date and service on a Commonwealth or allied ship counts towards the 12 months residency as long as the intention to remain a resident of Australia continues; and

• If the mariner joins a Commonwealth or allied ship, before the 12 months residency is established that service is not service on a Commonwealth or allied vessel immediately after becoming a resident of Australia.

FURTHER INFORMATION

Further information on mariners and residency, (or veterans and domicile) can be obtained from Bob Loftus, Legal Officer, or Ann Donnelly, Policy Officer in the Disability Compensation Branch.

Delegates are advised that they should ensure that any mariner was in fact an allied mariner; that is that service was on a ship registered in an allied country.  A list of allied countries (in relation to merchant mariners) is included in CLIK.

John R Douglas

Director

Policy Eligibility and Research

14 December 2000