B72/1993 DEEMED ALLOTMENT AND VIETNAM VETERANS

DATE OF ISSUE:  10 DECEMBER 1993

DEEMED ALLOTMENT AND VIETNAM VETERANS

Introduction.

1.The purpose of this instruction is to advise of the interpretation of the current legislation on allotment as it appears in section 6 (1) (e) of the Veterans' Entitlements Act 1986 which refers to those members of the Defence Force who were allotted and served in an operational area.  This instruction outlines how this is to be applied to those members who were deemed to have been allotted by the Minister for Defence's Instrument of 22 May 1986.  (See Ministerial Instruments and Determinations under the Veterans' Entitlements Act 1986  Issue No 2 of 1991).  It applies only to decisions to be made under the VEA and is not for any other purpose.

The "Hawkins" decision.

2.On 22 September 1993 the Full Federal Court handed down a decision in the matter of Repatriation Commission v Thomas James Hawkins.  The issue of substance in that appeal was the period of operational service under the Veterans' Entitlements Act 1986 for a veteran who served aboard HMAS SYDNEY at a time when the ship entered Vietnam waters.

3."Hawkins" was a pre 9 November 1990 case to which the "Doessel" law applied.  The Full Federal Court has now also considered and dealt finally with the issue of those deemed to have been allotted for duty under the Veterans' Entitlements Act 1986.  This aspect of the judgement applies to post November 1990 cases as well.  The effect of the decision is that a deemed allotment is to be treated the same way as any allotment under section 6(5) of the VEA.  The decision does nothing to disturb any decisions on allotment made for the purpose of the Defence Forces or the Defence Act.

THE PERIOD OF OPERATIONAL SERVICE.

4.The period of operational service, in most cases, extends from the last port of call before leaving Australia to the first port of call on return to Australia. This means that all those members of units of the Defence Force who are deemed to have been allotted by the Defence Minister's Instrument are to be treated exactly as if they were allotted and, as a consequence, the provisions of section 6 also apply to them.

5.It is clear that the amendments to the Act in November 1990 require that a person not only be allotted to an operational area but to have rendered full time continuous service in that operational area and while it was an operational area.

6.There are some special circumstances in the deemed allotment matters that must be considered where operational service does not extend from a port in Australia to the first port of call on return. (see section 6 (5) (b).  In situations where the ship was outside Australia the Defence Minister's Instrument may allot the ship only when the ship was in the operational area, such as the waters of Vietnam or from an earlier date.  Each case must be checked and the details of the allotment determined.

7.Operational service for such a circumstance as described in paragraph 6 ends if the unit or person

• is then deployed to another area outside Australia (on the day on which the ship leaves the operational area, for example Vietnam waters); or

• returns to Australia (on the day on which the ship reaches the first port of call in Australia); or

• is then deployed to another area before returning to Australia (on the day on which the ship reaches that other area, for example Singapore).

8.An example of a ship outside of Australia at the time of allotment is HMAS MELBOURNE.  The ship, while stationed in Manila, was sent to Vung Tau and returned to Manila.  The period of operational service must be decided with reference to the determination of the Minister for Defence of 22 May 1986.  (See Ministerial Instruments and Determinations under the Veterans' Entitlements Act 1986  Issue No 2 of 1991).

9.It is possible that other ships were outside Australia when ordered to Vietnam.  If such a ship  had been ordered to return to Australia via Singapore and perform other duties while there then the operational period may well have ceased on the day it reaches Singapore. Any such determination will need to be in accordance with the instrument of allotment or the ship's orders.  If the ship returned directly to Australia then operational service will cease on the day the ship entered the first Australian port.

The possible consideration of an extended period of operational service.

10.The Court also decided, in exceptional cases, that events occurring prior to that operational period can be causally connected to service. Their Honours said at page 4,

"Where the question is whether a disease is causally related to an event, a demonstrated relationship with matters inseparably bound up with that event, being inevitable concomitants of it, will in general suffice."

and later at page 5,

" ...the possibility that the seaman might have developed the habit of smoking as a result of being ordered to Vietnam without ever arriving there is not relevant.  The order, with its associated preparation and apprehension, formed an inseparable part of a total series of events, centred upon the presence of the ship at Vung Tau, as a result of which the habit of smoking was contracted."

11.This does not mean that the period of operational service is extended.  In order to consider this part of a journey the events prior to the actual period of operational service that give rise to a causal connection must be inseparably linked with the operational service.  In Hawkins' case, all of the relevant events occurred on the voyage to Vietnam.

Determining new claims following the decision.

12.Each new case, or any cases that were lodged after the November 1990 amendments, that involve the deemed allotment provisions must be considered in the light of this Departmental Instruction.  A check of the movements of the various vessels will need to be made afresh in order to determine the period of operational service.  There should be no reliance placed on earlier determinations of the period of operational service.

13.The decision in "Hawkins" deals directly with the deemed allotted cases and does not extend any further coverage to members of the defence Forces who served in other areas that were not operational.

14.Members of the Defence Force who were in Japan on 28 April 1952 (the date of the San Francisco Peace Treaty ending the war with Japan) were allotted for duty in Korea.  The legislation requires such members of the Defence Forces to actually serve in Korea before operational service is recognised.

16.In the case of members of the Defence Force who served in Singapore and the unit, or members of it, were allotted for duty in the Malayan operational area, there is still a requirement that a member of the Defence Forces actually serve in that operational area before operational service is recognised.

17.The provisions of section 6 require that actual service in the area must be undertaken.  There may be cases where in the past a different determination of operational service status was made.  Any new or further claims must have the operational service question looked at again and a fresh determination made.  However, this does not prevent an application for increase for already accepted disabilities being determined in the usual way.  Disabilities accepted under the Repatriation Act 1920 are deemed to be war-caused for the purposes of the Veterans' Entitlements Act 1986 because of the operation of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act.

Note:

The Department of Defence is working on the production of a list of the movements and dates of all ships likely to be of interest to the Department of Veterans' Affairs. The list will simply record the movements it will not be a new allotment of those ships.  When that list is available it will be distributed to all Branches.

NATIONAL PROGRAM DIRECTOR

(BENEFITS)