C23/1997 EXTENT OF OPERATIONAL SERVICE WITH DEEMED ALLOTMENT

DATE OF ISSUE:  9 APRIL 1997

EXTENT OF OPERATIONAL SERVICE WITH DEEMED ALLOTMENT

INTRODUCTION

The purpose of this Departmental instruction is to provide advice in relation to the effect of recent amendments and the Repatriation Commission v. Hawkins case on the extent of operational service for deemed allotment cases.  Such service is now limited to only those days in an operational area.

BACKGROUND

2.The Repatriation Commission v. Hawkins (1993) case concerned the meaning of “allotted for duty” and the extent of operational service in section 6 of the Veterans' Entitlements Act 1986 (VEA), as the legislation was before the amendments made in November 1990.  Since then, the definition of “allotted for duty” has been replaced (see VEA subsection 5B(2)) and VEA subsection 6(5) has been amended.  To the extent of the changes effected by amending legislation, the Hawkins' case is no longer the applicable law.

3.Deemed allotment for duty applies where a claimant was neither “allotted for duty”, nor a member of a unit that was “allotted for duty”, but was a member of a unit that was deemed to be allotted for duty by instrument dated 22 May 1986, of the (then) Minister for Defence, the Hon K Beazley MP, made under former VEA subsection 5(12).  Section 8 of the Veterans' Entitlements (Rewrite) Transition Act 1991 deems such an instrument to have been made under paragraph 5B(2)(c) of the VEA.

4.Paragraph (a) of the instrument provides that the Minister deemed:

“each unit of the Defence Force specified in Part 1 of the Schedule hereto have been allotted for duty in the area specified at items 4 and 8 of Schedule 2 to that Act during each period between 31 July 1962 and 11 January 1973 (both dates inclusive) during which that unit was present in that area”.

5.Schedule 1 to that instrument lists a number of ships of the RAN.  These are listed at Attachment A

6.Paragraph 6(1)(e) of the VEA, which was amended since Hawkins, now provides:

“subject to subsections (5) and (6), a person who has, as a member of the Defence Force, rendered continuous full-time service outside Australia in an operational area ... as:

(i)a member of a unit of the Defence Force that was allotted for duty; or

2.          a person who was allotted for duty;

in that operational area, is taken to have been rendering operational service during the period in which the person or the unit was so allotted for duty”.

7.Subsection 6(5) of the VEA, which was amended since Hawkins, now provides:

“For the purposes of this Act, the operational service of a person in an operational area, being the operational service of the person described in paragraph (1)(e):

(a)shall be taken to have commenced:

(i)if the person was in Australia on the day as from which the person was allotted for duty in that area—on the day on which the person departed from the last port of call in Australia for that service; or

2.      if the person was outside Australia on the day as from which the person was so allotted for duty—on the day as from which the person was so allotted for duty; and

2. shall be taken to have ended at the expiration of:

(i)if the person was assigned for duty from an operational area to another area outside Australia (not being an operational area)—on the day which the person arrived at that other area or the day as from which the person was assigned to that other area at a time when the person was in that other area; or

(ii)in any other case—the day on which the person arrived at the first port of call in Australia on returning from operational service.”

EFFECT OF RECENT AMENDMENTS

8.In the Hawkins' case, the phrase “allotted for duty” was given the meaning adopted by the Full Federal Court in Repatriation Commission v. Doessel (1990), ie of being posted or assigned for duty.  The 1990 amendments were made to overcome this interpretation.  Thus those words now must be given the technical meaning set out in VEA subsection 5B(2), and persons covered by the instrument of Minister Beazley cannot now be regarded as having been actually allotted for duty under paragraph 5B(2)(a), as was found in Hawkins' case.  They must now be regarded as having been deemed to have been allotted under paragraph 5B(2)(c), and it is therefore necessary to have regard to the terms of that instrument to see how it interacts with, and affects the application of, subsection 6(5) of the VEA.

9.In the case of a deemed allotment, the commencement of operational service must be governed by subparagraph 6(5)(a)(ii), in that the veteran was “outside Australia on the day as from which” he was so allotted for duty.  Certainly, he was not in Australia, because the instrument provides that the unit is deemed “to have been allotted for duty ... during each period ... during which that unit was present in the area”.  The instrument thus deems the allotment to be a process that occurred when the unit was present in the operational area.

10.The end of operational service for a deemed allotment must be governed by subparagraph 6(5)(b)(i).  The basis for this is that if the veteran's ship was deemed to have been allotted for duty in the operational area, then it must be the case that by sailing out of that area to a non-operational area (ie, the area immediately outside the operational area), the ship (and the veteran) was assigned for duty to that other area outside Australia, and the operational service ends at the expiration of the day on which he arrived at that other area.  This is also the day as from which the ship (and the veteran) was assigned to that other area, at a time when he was in that other area.

CONCLUSION

11.The effect of these provisions, as amended after the 1990 Doessel and the 1993 Hawkins case, is to restore the original intention of the legislation, as argued on behalf of the Repatriation Commission both in Doessel and Hawkins concerning allotment and deemed allotment for duty.  In particular, for deemed allotment cases, the extent of operational service is confined to the day or days when they were in the operational area, and does not extend to the journey from and to Australia.

CONTACT OFFICER

12.The contact officer for enquiries regarding this instruction is Mr John Douglas, on (06) 289 6485.

PETER REECE

DIVISION HEAD

COMPENSATION AND SUPPORT

Attachment A

RAN Ships listed in Schedule 1

HMAS Anzac — HMAS Quiberon

HMAS Boonaroo — HMAS Stuart

HMAS Derwent — HMAS Swan

HMAS Duchess — HMAS Sydney

HMAS Jeparit — HMAS Torrens

HMAS Melbourne — HMAS Vampire

HMAS Parramatta — HMAS Vendetta

HMAS Queenborough — HMAS Yarra