AN01 THE COASTAL WATERS POLICY AND INCURRED DANGER

Please note: For further information in relation to military service in World War 2 within Australia refer to DI C32/08.

Advisory from Disability Compensation Branch

No 1/2000

This is an advisory note only.  Disability Compensation Branch 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 represents a considered view of the interaction between an earlier policy decision by the Repatriation Commission and a later series of cases that provided binding precedent for the determination of certain claims for qualifying service.   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.

THE COASTAL WATERS POLICY AND INCURRED DANGER

Introduction

A policy decision issued by the Repatriation Commission 20 years ago and based on the then current knowledge of the law and decisions of the Courts cannot stand against any later decisions of the Courts or changes to legislation.

Local directions that seem to have been passed down from person to person eventually become completely out of touch with the law.   In any event no local instruction can override a Commission Guideline, a Departmental Instruction or the proper application of the law.

Policy or law the decider?

The coastal waters policy has been misunderstood and misquoted for sometime and has been exacerbated by the Gold Card exercise.  Delegates who had never had to deal with the coastal water issue may have missed the important qualifiers. We hope to have a fresh Repatriation Commission decision soon to replace the earlier policy statement.

The original decision of the Commission contained a qualification that the "coastal waters policy" was to be subject to decisions of the Courts.  Ann Donnelly will organise a package for everyone that will contain the correct documentation and references to the original decision of the Commission.

The law to be applied

The law takes precedence over all policy.

The Federal Court decisions in Marsh and Thompson

and others are the leading cases.  Not only are they persuasive they are binding authority on any decision-maker answering any application of policy to the legislation.

The relevant passage from the Full Federal Court decision in Thompson is binding on the Repatriation Commission and all delegates.  These are the actual words used by the Court.

“The words "incurred danger" therefore provide an objective, not a

subjective, test.  A serviceman incurs danger when he encounters danger, is in

danger or is endangered.  He incurs danger from hostile forces when he is at

risk or in peril of harm from hostile forces.  A serviceman does not incur

danger by merely perceiving or fearing that he may be in danger.  The words

"incurred danger" do not encompass a situation where there is mere liability

to danger, that is to say, that there is a mere risk of danger.  Danger is not

incurred unless the serviceman is exposed, at risk of or in peril of harm or

injury.

The danger incurred must of course be more than a merely fanciful danger

or a danger so minimal that the rule of de minimis applies.  But to say that

is not to give a flavour to the word.  Rather it is to use it in its ordinary

sense.

The above appear to have been the principles applied by the Tribunal in

its decision.  The Tribunal said:-

        "The section talks about 'at a time when the person

         incurred danger', not at a time when the person might

         have incurred danger or might have thought that danger

         might be there.  Danger must be real and not fanciful.

         It must consist of more than the shadows of the night.

         It must arise as a direct result of the activities of

         hostile forces of the enemy.  It must arise in the area

         in which the applicant serves.  A feeling of dread is not

         sufficient to base a claim under this section.  There

         must be established an actual risk of physical or mental

         harm."

The coastal waters policy

The “coastal waters” policy applies only to a person whose service was in coastal waters and in the periods described in the policy.  Note that there are two requirements for each part of the policy, a specified area and a specified time.  If a person did serve in coastal waters in the periods described in the policy, then whether the person can objectively be found to have incurred danger must be determined.

Why did the Commission specify the waters and the dates?

At those times and places mentioned in the “policy” there was a potential risk from enemy submarines and ships, both Japanese and German.  The assessment of potential risk was based on actual attacks on ships, sightings of enemy vessels and knowledge of the operations of both German and Japanese submarines.  However, that does not mean that, as a matter of course, every person in those areas at those times can objectively be found to have incurred danger from hostile forces of the enemy.  The policy is a pointer to times when a person may have been in danger.  It is a flag or alert that a decision-maker needs to consider whether it can be objectively said that the person incurred danger from hostile forces of the enemy.

A person who did not sail in the coastal waters at the times specified in the policy has no initial presumption of a risk of danger.  There is no evidence that there was any potential risk of danger at any time other than the periods specified in the policy.   Therefore, such a person could not establish qualifying service on the basis of their voyages in coastal waters.

However, the policy requires the application of the law.  It is therefore open to a person to argue that, notwithstanding that they were not in an area of known risk of danger (eg from submarines) at the specified times, nevertheless at some other time and location they did incur danger from hostile forces of the enemy.

What are coastal waters?

Bays and inlets and water between Australian islands and the mainland are not "coastal waters" for the purpose of the policy.  For example Spencer Gulf in SA, Port Phillip Bay, Sydney Harbour, the strait between Rottnest and WA mainland are not "coastal waters”, they are internal waters.  The Gulf of Carpentaria is too big to be classed as internal water.  Bass Strait had and has an international right of passage for all ships

.

Territorial Australia is defined by reference to the baselines so that everything between two points of land, including peninsulas and islands is sovereign territory and the coastal waters are on the sea-side of that line.

However, even if the waters a person travelled through were regarded as "coastal waters" there is no escaping the mandatory requirement to apply the legislation as the courts have interpreted it.

The questions that must be answered in all cases

1. Was the person a member of the Defence Force?
2. While a member of the Defence Force, did the person, render service during a period of hostilities?
3. Was such service in naval, military or aerial operations?
4. Were the naval, military or aerial operations against the enemy?
5. Did the person incur danger?
6. If so, was the danger incurred from hostile forces of the enemy?

Other areas of policy to watch

Watch out for claims involving service

• in the Northern Territory,
• on Horn, Thursday, Rottnest and Garden Islands
• across Bass Strait
• at Cowra
• on Sydney Harbour or in the Eastern suburbs
• in Newcastle
• in Townsville

And remember that other important point the person must be in operations at sea, in the field or in the air against the enemy.

More information is available

The Fact Sheets can be invaluable in sorting the issues to be considered.

National Office has the services of Ann Donnelly (02 6289 6439) to assist you in getting information and to point to suitable researchers who may be able to provide a complete report.   Policy., Eligibility and Research Section holds information gleaned from many earlier cases, including historians' reports, on all the main areas in dispute.

John Douglas Director Policy, Eligibility and Research

Geoff Johannes Director Legal Services Group

24 March 2000