Advisory from Disability Compensation Branch

No 4/2000

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 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.

ENGAGED IN OPERATIONS AGAINST THE ENEMY

Issue

What is meant by the qualifying service criterion requiring that a person be engaged in operations against the enemy while incurring danger from hostile forces of the enemy?

Introduction

In the recent AAT case of Corrick, Deputy President McMahon found that the veteran had not rendered qualifying service during WWII because it could not be said that he was engaged in operations against the enemy.

The applicant served as an Army clerk in a recruiting and mobilisation section in Sydney.  It was his habit to live at home with his parents in Bellevue Hill.  He was at his parents home on the night of 7-8 June 1942 when Bellevue Hill and Rose Bay were shelled by a submarine stationed off the coast.  The applicant stated that an unexploded shell landed some 150 metres from his parents home.

Deputy President McMahon found that the applicant was a member of the armed forces and had incurred danger, but he did not incur the danger as a result of being engaged in operations against the enemy.

Background - Willcocks and Burton

Cooper J considered the meaning of the phrase 'engaged in operations against the enemy' in Willcocks v Repatriation Commission (1992).  His Honour concluded that the word 'against' in the phrase requires service in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.  In this case the applicant arrived in Singapore in September 1945 to assist in the release and repatriation of prisoners of war after the Japanese surrender.  The court found that the activity of releasing and repatriating prisoners of war could not be characterised as military operations against the enemy. They were military operations that involved contact with the enemy, but were not operations against the enemy.

The reasoning of Cooper J was adopted and applied by Olney J in Repatriation Commission v Burton (1993).  The applicant in this case travelled to Papua New Guinea by sea, arriving in October 1945.  He journeyed by boat from Rabaul to Madang and then up a river for the purpose of returning native labourers to their villages. The court found that such service did not constitute 'operations against the enemy'.

DP McMahon stated that the reasoning in Willcocks particularly, compelled a conclusion that the operations in which the Mr Carrick was engaged (if any) on the night in question could not be said to be against the attacking enemy.

Conclusion

These cases serve as a reminder that there are two parts to qualifying service; 'engaged in operations against the enemy' and 'incurred danger'.  They are particularly relevant to claims based on single incidents in Australia during World War II.

It is very likely that qualifying service claims based on the shelling or bombing of Sydney, Townsville and Newcastle for example, will be based on danger incurred while simply being in the area.  This does not meet the requirement of 'engaged in operations against the enemy'.  A person must have been actively involved in an operation that was in opposition to enemy activity.

For example, manning a telephone exchange or radar set and relaying information during a period of enemy activity is 'engaged in operations against the enemy'.  Being off duty or taking cover in a trench or shelter is not.

Further Information

If in any doubt about what constitutes 'operations against the enemy', please contact Ann Donnelly in the Policy Eligibility and Research Section of National Office.  Her phone number is 02 289 6439.

John Douglas

Director

Policy Eligibility & Research

27 March 2000