Place holder node for 2000
Please note: For further information in relation to military service in World War 2 within Australia refer to DI C32/08 [3].
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
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.
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 takes precedence over all policy.
The Federal Court decisions in Marsh and Thompson
[1] [4] 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.
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.
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."
[2] [5]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.
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.
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
[3] [6] .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.
Watch out for claims involving service
And remember that other important point the person must be in operations at sea, in the field or in the air against the enemy.
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
Marsh v Repatriation Commission (1987) 82 ALR 341 and Repatriation Commission v Thompson (1988) 82 ALR 352
[1] (go back) [7]Note that there are special requirements for certain other specified areas such as Horn Island, Bass Strait and even Rottnest Island. Service on or in these areas is not covered under the “coastal waters” policy.
[3] (go back) [9]
Advisory from Disability Compensation Branch
No 2/2000
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.
The Repatriation Commission requested the Repatriation Medical Authority (RMA) to consider whether “alcohol habituation” could be categorised as “a particular injury, disease or death” under the Veterans' Entitlements Act 1986 (VEA).
The Repatriation Commission also requested that, if this were the case, the RMA conduct an investigation, under section 196E of the VEA, into “alcohol habituation”.
The area of specific interest for the Repatriation Commission was whether a 'habit' of alcohol drinking continues from the service environment into the community after discharge from service.
The members of the RMA considered this matter. The advice is that “habituation” to alcohol, or indeed any other habit, which falls within the spectrum of normal human activity, is not a disease under the VEA. Habits should be considered under the psychology of normal human behaviours.
The relationship between the normal human behaviours (such as habits), social environments (for example military service) and individual biological and genetic vulnerability to disease is complex. This relationship can influence differently the exposure of each individual and thus the development of disease.
The link to service for the consumption of low doses of alcohol not defined as alcohol dependence or alcohol abuse must be considered on an individual case by case basis.
The answer is simply, no. There is and will not be any SoP on alcohol habituation. Therefore a claim cannot be based on an investigation of the cause of habituation and the non-SoP rule applied. Each case would need to be examined to see if there is a connection between service and the consumption of alcohol. What those connections might be will depend on the claim submitted.
Alcohol abuse and alcohol dependence are two of the possible connections to service but are separately recognised diseases according to the International Classification of Diseases and have SoPs issued. Alcohol abuse/and/or dependence are not the inevitable end result of a 'habit'.
The following is a summary provided by the RMA on its investigation.
Claims Assessors must treat each application on merit, according to the law, the interpretations of the Courts and the content of SoPs.
John R Douglas
Director
Policy, Eligibility and Research
Disability Compensation Branch
7 April 2000
Advisory from Disability Compensation Branch
No 3/2000
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.
REVIEW OF SERVICE ENTITLEMENT ANOMALIES IN RESPECT OF SOUTH-EAST ASIAN SERVICE 1955-75
On 5 May 1999 the Minister for Veterans' Affairs announced Mr Robert Mohr, a retired judge and a former Judge Advocate General in the ADF would conduct an independent review of service entitlement anomalies. The review was of service entitlement anomalies affecting those members of the Australian Defence Force who served in South-East Asia between 1955 and 1975. This review was to provide a Report containing information and recommendations for subsequent assessment of entitlements by the Departments of Defence and Veterans' Affairs.
The review considered service units and individuals with regard to the nature of the service rendered. It made recommendations about each case having regard to the nature of overseas deployments that will be looked at along side the modern criteria of warlike, non-warlike or peacetime service.
The Report has some specific comments concerning 'qualifying service'. Those comments do not currently represent either the policy or the law. All current policy advice on 'qualifying service' remains in place.
If there are any specific issues arising in matters being dealt with by SPOCs then further advice can be sought through Ann Donnelly (02 6289 6439).
The review had particular regard to the following areas of service:
There are other periods and types of service brought to the attention of the Review and for which there are some comments. Some of these matters will be further investigated by the department of Defence.
The Report, Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75, was released on 2 March 2000 to a meeting of the major organisations that contributed submissions to the Review. A copy of the Minister's Press release is attached.
Copies of the Report were sent to all States for distribution to Income Support, Disability Compensation, VAN offices, Libraries and Advocacy areas.
The Report contains recommendation not decisions. The Federal Government will make decisions on all aspects of the Report and prepare legislative amendments for approval by the Parliament of the Commonwealth of Australia. Unless and until such legislation is passed and has both achieved Royal Assent and the implementation date is known there is no change to the current policy and law.
The contents of the Report do not represent the law, as it is currently understood in the Veterans' Entitlements Act 1986. Nor does the Report represent a point of view that can be held contrary to current decisions of the Federal Court. It must not be assumed that because of a recommendation in the Report that the law as it currently stands can be altered or ameliorated. A decision-maker cannot make a decision that is based on what may change.
Any current claim must be decided under the current law. It is neither proper nor lawful to delay making a decision pending what are only possible changes to the Veterans' Entitlements Act 1986. A fresh claim will need to be lodged by anybody with a current claim.
No claims can be held over until there is some announcement on the Government's intentions. This applies to Administrative Appeals Tribunal matters as well.
Those writing ministerial responses may wish to refer to the Report when answering questions on qualifying service in South-East Asia.
Copies of the Report are available to the public and veterans' organisation from all AUSINFO Bookshops.
Updates on information can be provided by contacting Anthony Staunton in National Office, Policy Eligibility and Research (02 6289 6640).
John R Douglas
Director
Policy Eligibility and Research
March 2000
INDEPENDENT REVIEW INTO VETERANS ENTITLEMENTS
I have today made public the Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 conducted by retired SA Supreme Court Judge and Army Reservist Major General Bob Mohr and assisted by retired Naval officer Rear Admiral Philip Kennedy.
The independent Review was announced in April 1999 as a result of a large number of representations made to me by individuals and concerned organisations that felt that there were anomalies in entitlements given to Navy, Army and Air Force personnel who served in South East Asia during the period 1955-75.
The Review team called public hearings in all capital cities and some country areas, receiving more than 400 oral submissions and 750 written submissions from veterans and ex-service organisations including the RSL, the Naval Association, the Air Dispatch Association of Australia and RAAF Ubon Reunion-Recognition Group.
The Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 has provided interested parties an opportunity to present their case.
This process has brought to light new evidence and information on the conflicts considered by the Review team, which adds to the understanding of the conditions of service encountered by some veterans.
I am grateful for the work of General Mohr and Admiral Kennedy who have recorded and catalogued the written and oral submissions into a detailed report with a total of 53 recommendations. The Review has now been passed to the Department of Defence and the Department of Veterans' Affairs for detailed analysis.
I expect to be in a position to announce the Government's response to the Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 by mid year.
The Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 can be purchased from Government Info Shops throughout Australia. Copies of the Executive Summary of the Review can be accessed on the Internet at http://www.minister.defence.gov.au/2000/sea.html [12]
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
Advisory from Disability Compensation Branch
No 5/2000
This is an advisory note only. This is the considered view of Disability Compensation and Income Support. 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 claims assessors, investigators and SPOC delegates.
East Timor Australian Federal Police Contingents
Under the terms of the Veterans' Entitlements Act 1986 (VEA) members of peacekeeping forces such as the Australian Federal Police (AFP) are Members of the Forces and veterans for all purposes of the Act.
However, the nature and content of the Instruments issued govern all AFP entitlements.
On 25 February 2000, the Minister for Veterans' Affairs signed two instruments for the purposes of s.68 (1)(b) of the Veterans' Entitlements Act 1986 (VEA). The first assigned the Australian Federal Police Contingents to UNAMET (United Nations Assistance Mission in East Timor). The second assigned them to UNTAET (United Nations Transitional Administration in East Timor). Both were as “Peacekeeping Forces”.
As required by the VEA, both instruments were published in the Commonwealth Gazette, 15 March 2000. The Peacekeeping Forces will be added as items 25 and 26 to Schedule 3 of the VEA. This amendment will appear on the electronic version before appearing in any reprint of the Act.
Copies of these instruments as well as other instruments relating to East Timor can be found on CLIK in the Legislation Library at 'Other Legislation'/'Ministerial Determinations'. The instruments relating to the Australian Police Contingents to UNAMET and UNTAET can be found under s.68 (1) Peacekeeping Force.
Claims for disability pension received prior to the gazettal of the instrument can now be determined. The date of effect of these claims is determined by reference to the date the claim was lodged and not the date of the Gazettal notice (see s.20).
This allows a maximum of three months backdating prior to the date of claim but no earlier than the starting date under the relevant Instrument. The earliest possible dates will be 21 June 1999 for AFP members of UNAMET and 25 October 1999 for AFP members of UNTAET.
The date of injury /death or clinical onset of the disease is the earliest date allowed under compensation law. If the date of injury/death or clinical onset of the disease was only two (2) months prior to the claim, then the claim can only be backdated two (2) months.
Peacekeeping service can only ever be 'non-warlike' service. Non-warlike service attracts disability pension but not service pension. Any claim from a member of the AFP for service pension or qualifying service should be referred to National Office for the latest advice.
In contrast, ADF personnel currently with the International Force in East Timor (INTERFET) are engaged in peace enforcement, which is 'warlike' service. Under s.7A(1)(a)(iv) warlike service constitutes qualifying service, and thereby entitles them to both disability pension and service pension.
Records
Confirmation of service must be sought from AFP Headquarters in Canberra.
Written enquiries should be made to:
Australian Federal Police
Peace Operations
GPO Box 401
CANBERRA ACT 2601
If it is necessary to make contact by phone the general enquiries number is:
(02) 6246 3518.
Any request for confirmation must include a specific request that the AFP declare that the member actually served in East Timor. This is because the AFP counts its area of operations as including Darwin. AFP members who served only in Darwin are not eligible for cover under the VEA.
When a claim is received, State Offices should contact COMCARE to see if a claim has also been received by that organisation. When the claim is about to be decided the claims assessor should go back to COMCARE, to check the progress of any claim about to be decided and deal with any dual compensation and offsetting issues that arise.
States will be asked to provide information on AFP claims for the purpose of answering questions asked in Parliament. It would be advisable to keep some record or identifier for AFP cases.
Any additional information can be obtained by contacting Policy, Eligibility and Research Section in National Office.
John R Douglas
Director
Policy, Eligibility and Research
Disability Compensation Branch
2 May 2000
Advisory from Disability Compensation Branch
No 6/2000
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 judgement of the Full Federal Court in the matter of Repatriation Commission v Keeley. It may be subject to change as a result of further interpretation by the Courts of the legislation. Nevertheless it represents the considered views of both Branches and should be taken into account by all delegates of the Repatriation Commission.
APPLICATION OF THE FULL FEDERAL COURT DECISION IN KEELEY
At the moment the full implications of Keeley are not well understood. The Commission is yet to consider its options concerning the case itself. Nevertheless the Court's decision is binding.
Our advice is that at the AAT level we have to agree with any position put by the AAT that because of the Full Court's decision the SoP to be considered in all entitlement matters is the one in force at the time of the original decision.
This is in spite of perhaps a later SoP being more advantageous. If the other side wants to interpolate this into the Keeley decision then they will have to provide the justification for doing so.
This means, until such time as any other view is taken, that a concession at the AAT on the basis of a later SoP being more advantageous is not possible.
Naturally this would also apply to s31 reviews as well. To be specific a request for a review of a decision on the basis of a new SoP could not be met under the Keeley provisions.
It would seem that on the basis of Keeley a review on a later SoP is not possible.
In practice the only advice that we could provide to a person or representative is that to take advantage of a later more generous SoP a new application would have to be made and that cannot be done while a current application is under review. They must also be told that if they withdraw the appeal then the date of effect will be based on the new application.
I attach two documents to assist in your understanding of the current situation.
The first is an advice from the Policy and Legal areas of the Department to the Repatriation Commission that discusses the case and looks at the implications and possible responses.
The second is a paper by Bruce Topperwien provided to the VRB that comes to the same conclusion and that is that the VRB must apply the same SoP that the Commission used at the primary level.
John R Douglas
Director
Policy, Eligibility and Research
Disability Compensation Branch
4 May 2000
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Minute Department of Veterans' Affairs NATIONAL OFFICE |
File No. Phone Fax |
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KEELEY – FULL FEDERAL COURT DECISION
PRESIDENT
DEPUTY PRESIDENT
Through:DH(C&S)
BH(LSG)
BH(DC)
CCSLA
Purpose
To provide brief initial advice on the outcome of the Commission's appeal to the Full Court of the Federal Court in the Keeley matter.
2.In September 1986, the late Mr Keeley died from multiple myeloma. He had World War 2 service in the RAAF, including service in the South-West Pacific and hence he had operational service. His widow lodged a claim for war widow's pension on 14 December 1994 and thus the claim had to be determined under the RMA SOP regime. The basis for Mrs Keeley's claim was the veteran's occupational exposure to paints and/or lacquers while on service. At the time of the Commission delegate's decision, SOP No1 of 1995 was in force and the delegate decided against the claim. The delegate's decision was upheld by the VRB whereupon Mrs Keeley applied for review by the AAT. Before the claim came before the AAT, SOP No 134 of 1996 was made, which more closely defined the levels of exposure required than had the earlier SOP.
3.The AAT (per Senior Member Webster) concluded that it should apply the SOP in force at the time of its decision and refused the claim. Mrs Keeley appealed to the Federal Court, which in a decision by Heerey J, found that there was an accrued right to have the claim decided on the SOP in force at the time of the primary decision. The Full Court (Lee, Cooper and Kiefel JJ) has now upheld this position.
Difficulties arising from the Federal Court's decisions
4.In brief, the requirement that decision-makers in the review chain (ie. the VRB and the AAT) confine consideration of the matters before them to the SOP position at the time of the primary decision precludes the application of later SOPs. Since later SOPs embody the latest medical and scientific research then available on the condition in question, it is clearly anomalous that this material cannot be used in deciding the claim. Indeed, such an approach could work to the disadvantage of many claimants since, as Heerey J's decision indicates and on which point the Full Court is silent, the accrued right is to have the claim decided on the SOP in place at the time of the primary decision. Thus, in relation to the claim on foot, the veteran cannot take advantage of any later more beneficial SOP eg. several smoking-related SOPs where the quantity of cigarettes smoked has been reduced as has the length of time from smoking cessation to clinical onset of the disease. Of course, this problem can be overcome by a new claim but this may involve a loss of backpayment.
5.The Court's approach runs contrary to whole thrust of the SOP/RMA/SMRC legislative package, which was designed to have claims considered on the most up-to-date medical-scientific evidence. Similarly, it runs contrary to the normal VRB and AAT decision-making approach which provides for the de novo hearing of matters before those bodies based on the latest evidence available to the point of VRB or AAT consideration. Moreover, the Court's approach reverses the situation that pertained under the VEA as it stood before the SOP regime and as it stands now where there is no SOP covering a condition ie. in the latter situation and pre-SOPs, claims are decided directly under the ss120(1) and (3) (and ss120(4) where applicable) with the most up-to-date evidence being considered by the VRB and AAT.
6.Further, the Full Court's decision in Ogston means that there will be circumstances where delegates will have to act on the latest medical-scientific evidence, namely where a formal RMA investigation is underway per ss120A(2). Thus, with Keeley we now have conflicting lines of authority on the point.
7.Also, the Court's discussion of the occurrence provision of VEA paragraph 8(1)(a) suggests that in some instances a claimant could avoid the application of the SOP altogether. It is to be expected that some claimants will seek to rely on the Court's comment in this area to by-pass the SOP regime. This was never intended.
8.While it is nice to see the judge at first instance expressing concern about the preferability for the Commission's “orderly management, planning and budgeting” (Heerey J at para 40) “that potential liability for claims be ascertainable as early as possible”, it is clear he has no comprehension of the administrative chaos that can flow from his decision, a decision now confirmed by the Full Court. Arguments will surely now be made that a veteran can choose which of the SOPs is more beneficial to his claim, and even arguments allowing he/she to pick and choose between factors spanning different SOPs will be put. With claims on the same condition lodged at different times, it is very possible that different decisions can be given on the same condition on the same date since the claims may be governed by different SOPs. Where the claim relies on a sequence of SOPs the difficulty is exacerbated. Clearly also, the Commission will not wish to see veterans denied the benefit of later SOPs but on the law as it now stands this is not possible in relation to an ongoing claim.
9.As a matter of urgency, an opinion from Counsel has been sought on this decision. Commission will be advised as soon as the opinion is received. It is expected that reference will be made in the course of that opinion to a wider Government interest in having the High Court reconsider its decision in Esber's case (for further discussion separately).
10.Subject to that opinion and Commission deliberations, it may be appropriate as a protective measure to lodge an application in the High Court for Special Leave to appeal the Keeley decision. In parallel, consideration should be given to an urgent legislative amendment to resolve this issue once and for all.
11.To maintain our options, the Merits Review Committee has agreed, subject to contrary instructions, to prepare for the lodgement in the High Court of an application for Special Leave to appeal.
12.In respect of legislative amendment, there is a window of opportunity to effect such amendment through a non-Budget bill that has priority on the legislation programme for the next sittings of Parliament. Drafting instructions must be lodged with the Office of Parliamentary Counsel by 12 May 2000. The addition of these amendments will require the Prime Minister's approval and the agreement of the Parliamentary Business Committee. Commission approval is sought now to commence work on this approach.
4 May 2000
Lee and Cooper JJ wrote a joint judgment. Kiefel J wrote a separate judgment, concurring in the result. The disagreement between the two judgments appears to be the nature of the accrued right as discussed in Esber's case (1992) 174 CLR 430.
The joint judgment begins with a general discussion about the applicability of Statements of Principles and the standard of proof. It makes the observation that even though a SoP upholds a reasonable hypothesis, it might be disproved beyond reasonable doubt (para 13). (This point is also made in Discussion paper No. 8.)
There is some discussion of the applicability of SoPs to questions arising under s 8(1)(a), suggesting that in some circumstances, SoPs might not be applicable and need not be applied because of the temporal rather than causal connection required by that provision especially if no medical issue is involved. Lee and Cooper JJ made no reference to the fact that the terms of s 8(1)(a) are repeated in s 196B(14), which the RMA must consider in making a SoP and which are included in the phrase “related to service” both in s 196B and in the SoPs. This discussion is clearly obiter as it has nothing to do with the circumstances of Keeley's case. Lee and Cooper JJ recognised that the only issue before the Court was 'whether the Tribunal erred in failing to apply the revoked Statement' (para 32).
Lee and Cooper JJ, citing Esber, noted that 'a right to have a decision reconsidered and determined by the Tribunal was not merely a power to take advantage of an enactment nor a mere matter of procedure; it was a substantive right that may be said to have accrued under that enactment.' (para 38) They indicated that the right that accrued upon the lodgment of a claim, to have the claim determined under the Act by the Commission, was 'affected' by the making of a SoP. (para 42)
They held that s120A(2) shows a clear intention to affect an accrued right (para 44), but that circumstance does not apply after a claim has been determined (para 45). The right that has then accrued is the right to have the determination reviewed. There is no provision equivalent to s 120A(2) in relation to the investigation of the RMA when reviewing a SoP (para 45).
Lee and Cooper JJ then concluded by saying:
'Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood. (See Esber per Mason CJ, Deane, Toohey, Gaudron JJ at 440-441.)'
Kiefel J said that 'the first enquiry in any case must be as to whether a right had accrued prior to the repeal or amendment.. ... A right may vest in or be held by a person prior to the repeal or amendment in question by the application of the law then in existence to the facts as they had already occurred. The law will then have 'defined' the right, as Dixon CJ said in Maxwell v Murphy.' (para 67).
Kiefel J then quoted Dixon CJ again, this time in Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 at 652, in which he said: 'liabilities that are fixed, or rights that have been obtained, by the operation of the law upon the facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends'. (para 67)
Kiefel J held that, 'Statements of Principles operate generally as a bar or threshold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connexion between death and service as a minimum, in each case. ... The introduction of the second SoP affected the right to pension under s 13, as had the first.' (para 76)
At para 78, Kiefel said, 'The repeal of the first SoP affected the content of Mrs Keeley's right. It follows, in my view, that s 50 AIA operates, subject to the further question whether any intention to the contrary is discovered by the second SoPs as the repealing provision.'
Kiefel J agreed with Heerey J that 'the need for consistency of decisions of lay tribunals is ... met by applying the SoP existing at the time of the primary decision.' (para 81)
Kiefel and Heerey JJ both clearly state that the law as at the date of the Repatriation Commission's decision must be applied.
Lee and Cooper JJ appear to agree, but not so clearly. They say that the accrued right is to have the decision reviewed and determined by the law that applied at the time of the Commission's decision, and the right that the claimant had at the time of the Commission's decision was 'the right to have the claim determined' (para 42). That right was affected by the making of a new SoP, but section 50 AIA prevents that right been overridden by the new SoP. If the right is to have the claim determined on the law when that right accrued, then it cannot permit a view that there is also a right to have a later SoP applied. The only right that has accrued to the claimant is the right to have the claim determined on the previous law.
Kiefel J differs from Lee and Cooper JJ in that she says that the relevant right would be a right to a pension rather than a right to have the claim determined upon review (para 79). However, she recognises that the facts have not been found by the AAT to decide whether Mrs Keeley would actually succeed under the first SoP (para 62), and said that 'I have not found it necessary, in applying s 50 AIA, to consider the nature of Mrs Keeley's rights to review as “rights” which had 'accrued' for the purposes of that provision' (para 79). Nevertheless, on the important question of what SoP applies, she comes down on the side that says it is always the SoP at the time of the Commission's decision (unless a contrary intention appears in the Act, and she did not find one).
If this is the proper analysis of these judgments, then the VRB is bound to apply the SoP that was in force at the time of the Commission's decision.
Bruce Topperwien
Executive Officer
28 April 2000
Advisory from Disability Compensation Branch
No 7/2000
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.
REPUBLIC OF VIETNAM
NATIONAL POLICE FIELD FORCE
POPULAR FORCES AND REGIONAL FORCES
STATUS AS AN ALLIED DEFENCE FORCE
What was the status of the National Police Field Force (NPFF) and the Regional Force (RF) and Popular Force (PF)? Were they auxiliary forces or elements of the Army of the Republic of Vietnam (ARVN)? Other forces involved in the conflict also examined.
Following an inquiry from a State Office as to the status of the PF and RF, the National Office policy area re-considered a report by Professor Grey
[4] [17] and consulted with Legal Services Branch. In addition views were obtained from various former members of the ADF who served in Vietnam.The status of the Popular Forces (PF), Regional Forces (RF) and National Police Field Force (NPFF) of the Republic of Vietnam has been an outstanding matter for some time.
The relationship between the Republic of Vietnam Armed Forces (RVNAF) and various paramilitary groups depends on from whose point of view the answer is sought. From the point of view of the former Republic of Vietnam all efforts directed at fighting a revolutionary war might be seen to be auxiliaries. However, the perspective required is an Australian one. In that regard only the legislation can determine what maters are to be taken into account.
A report was commissioned from Dr Jeffrey Grey
[5] [18] as part of the Department of Veterans' Affairs preparation for a review by the Administrative Appeals Tribunal of a former member of the South Vietnamese forces.“Expansion of the National Police began in 1964, and the National Police field Force was created in January 1965. It was designed as a lightly armed, highly mobile formation that could attack the Viet Cong in the villages. It received both military and civil police training at an NPFF Training Centre, usually located in the regional capital. The National Police organisation was divided into six main 'blocks' for functional purposes: the NPFF constituted a separate and discrete block within the organisation, and it is apparent from a number of sources that a delineation was made between the NPFF and the National Police more generally, of which they were a part. thus one Australian report notes that 'some confusion exists between their activities and those of the RF, RD National Police and other organisations. Hunt describes them as 'a separate police branch',, and notes that their function was to fill the gap in operational terms between the ARVN and 'regular police forces'; Andrade describes them in similar terms. McNeil admits to the ambiguity of their position, located between the regular military and the regular police.
There is no question that the NPFF was never a formal part of the RVNAF, although it is worth noting that the GVN certainly gave consideration to this option. It is equally clear that NPFF companies were regularly used as though they were part of the ARVN command structure, despite the complaints and protests of American advisers who wanted them used to attack the VCI, as they were intended to do. That the NPFF was used in conventional combat is underlined by the award of a posthumous Silver Star Medal for gallantry to National Policeman Vu Viet Thu, who was killed defending a machine gun position against an attack by two battalions of Viet Cong in Hau Nghia province in May 1966. The recommendation was made from the relevant US Army Advisory Team (Team 43) through US Army channels. The citation emphasises the confusion in distinction between ARVN and NPFF: 'His unimpeachable valor in close combat against superior enemy forces is in keeping with the highest traditions of the military service and reflects great credit upon himself, his unit and the armed forces of the Republic of Vietnam. Whilst it is possible to award the Silver Star to a civilian, in practice very few have been made, and while the language of the citation is formulaic to some extent, it is clear that no distinction was being made between Vu Viet Thu and an ARVN other rank.
The biggest problem which the NPFF faced was attracting recruits of sufficient calibre and in sufficient numbers, because eligible men of the right quality were directed first to the ARVN under the draft laws and regulations. Overall the National Police expended dramatically between 1964-70, from a total of 19,000 to 88,000, and the NPFF expanded also, not least in line with its additional responsibilities under the Phoenix program. The ARVN was ordered to make a compulsory transfer of personnel to boost the size of the police. In pursuance of the General Mobilisation Law in 1968, between 6,000 and 9,000 men aged between 18-20 (ie within draft age) were sent to the NPFF and not to the ARVN. Further, all personnel within the National Police aged between 21-33 (within draft age) were gradually to be transferred to the NPFF with the agreement of the Ministry of Defence. In other words, in terms of personnel policy and in keeping with the requirements of the laws governing the draft, the NPFF was treated as an extension of the armed forces, specifically the ARVN. In December 1969 total assigned strength was 15,184, a shortfall of 2816 below the projected target of 18,000. At first the NPFF struggled to meet its enlistment targets because the ARVN proved reluctant to make further block transfers of its own personnel, although brief mention has been found of continuing transfers of ARVN personnel to the RF/PF and NP, but by the end of 1970 the NPFF seems to have been meeting its manpower targets through these mechanisms.”
[6] [19]“The original Regional Forces/Provincial Forces were created late in the French war for pacification tasks, and by 1 January 1954 numbered over 144,000 men, larger than the French-created Vietnamese National Army. They were revived under Diem as the Civil Guard (CG), which in turn was split in 1956 to create the Self-Defence corps (SDC). In 1960 Diem had them incorporated directly into the defence budget. In 1964, after Diem's ouster and murder, the CG was redesignated the Regional Forces while the SDC became the Popular Forces. At the same time, they were integrated into the RVNAF and placed under the command of the JGS (Joint General Staff).
The RF was controlled by the province chief while the PF was controlled at the district level. Regional Forces companies were generally commanded by an ARVN officer, while the PF platoons were commanded by an NCO. Service in both was on a full-time basis and the soldiers underwent a five-week training course at one of the two RF and 15 {F training facilities scattered around the country. They were poorly paid and, until 1967, poorly armed and equipped. However, Krepinevich points out that except during Tet
[7] [20] the RFs consistently suffered a higher rate of casualties than the ARVN, while they accounted for between 12-30 percent of enemy combat deaths while consuming only 2-4 percent of the resources expended to fight the war.As a result of two decrees signed by President Thieu on 2 July 1970, the RVNAF was reorganised and the RF/PF became components of the ARVN on a formal basis. There was no intention of raising the RF/PF to ARVN standards of training or equipment, although when the 3rd Division was formed in the northern provinces in late 1971 the RF were used to provide a number of battalions for newly-formed regiments, while in mid-1974 the Marine Division had no less than eight RF battalions under its operational control and the Airborne Division controlled a further seven. The combined strength of the RF/PF in 1968 was in excess of 300,000.”
[8] [21]
Professor Grey's report dealt with the organisational relationships between the Republic of Vietnam Armed Forces (RVNAF) and the various paramilitary units and formations. The roles and structures of these groups were taken into account when assessing the claim to be a part of the regular forces or at least an auxiliary force.
Professor Grey reported that it was appropriate to view the NPFF as an auxiliary force of the RVNAF. This opinion was based on the fact that the NPFF was deployed on military operations, was trained and equipped along military lines, and its functions went well beyond those of the uniformed civil police. The Field Force operated in conjunction with units of the armed forces and this was specified as part of its operational mission.
In his report, Professor Grey outlined the direct command and control relationship between the RF/PF and the Joint General Staff (JGS). He states that these two forces were incorporated directly into the defence budget and in 1964 were integrated into the RVNAF and placed under the command of the JGS. As a result of two decrees signed by President Thieu on 2 July 1970, the RVNAF was reorganised and the Regional Forces and Popular Forces became components of the ARVN on a formal basis.
These findings are enough to satisfy the legislative requirements of the VEA.
The findings of the Grey Report indicate that the role of the National Police Field Force (NPFF) would also satisfy the terms of the legislation. This finding relates only to the NPFF and not to any other branch of the Police Force.
A decision-maker should also be able to be satisfied that the Popular Forces (PF) and Regional Forces (RF) were auxiliaries of the regular Defence Forces of the Republic of Vietnam (ARVN).
There may be claims from Vietnamese veterans with service in:
In general these units are a mixture of service types and not considered as meeting the full test for auxiliary forces. In some cases membership of such a force merely deferred the military draft. Other forces were funded by the United States (CIA) and/or were not under the direct control of the Ministry of Defence.
Nevertheless, any such claim must be treated on its merit. The service of any particular Vietnamese claimant within these units could be quite distinct from another person's experience.
Decision-makers are reminded that a person may not gain access to benefits under the VEA if they served at any time with the enemy forces. In this situation we are talking of service with the North Vietnamese Army (NVA), the Peoples' Army of Vietnam (PAVN) or the Viet Cong (VC).
During the course of the conflict many former cadres and members of the enemy forces were captured and some were recruited or turned and performed service for the Republic of Vietnam or the United States. This was The Hoi Chanh program. Any person who was turned, that is any one who was a member of a Hoi Chanh unit (sometimes the person is referred to as a Chieu Hoi) is prevented from accessing benefits under the VEA.
Within the program were Armed Propaganda Teams (APT), the Kit Carson Scouts (KCS), Civilian Irregular Defence Groups (CIDG) and Mobile Strike Forces (MIKE).
Members of these groups were the first to experience the extreme retribution followed by the new government of a united Vietnam. In fact so dangerous was their position that they were amongst the first to seek escape from Vietnam. Persons in this position are no different to those who had served with the Italian Army before joining the partisans in World War 2.
However, any suspected instance of a Chieu Hoi applicant needs to be considered in the light of the law and the decisions of the Tribunals and Courts. In circumstances where the enemy makes compulsory conscription but the person seeks to leave that force (escape) at the earliest opportunity there may by some scope for still being able to satisfy the requirements of the VEA
[10] [23] .This advisory does not detract from any other instruction concerning the determination of claims from allied veterans. Decision-makers are still required to ask for military and/or civilian documentation, obtain proof of identity and proof of 10-year residency.
In the absence of any documentation a Statutory Declaration is the very least that is required.
The original Report is held in National Office. Selected portions have been included in this Advisory. A complete copy may be obtained on request to National Office (Ann Donnelly on 02 6289 6439).
John R Douglas
Director
Policy Eligibility and research
31 May 2000
'The Armed Forces of the Republic of Vietnam and the para militaries.' by Professor Jeffrey Grey, Australian Defence Force Academy, Canberra, 19 May 1999.
[4] (go back) [24]The Vietnamese New Year based on the Lunar cycle. Usually in late January or February.
[7] (go back) [27]See also 'Service with the enemy'. PRU were often composed of former Viet Cong members. They would therefore be ineligible under the VEA.
[9] (go back) [29]Advisory from Disability Compensation Branch
No 8/2000
This is an advisory note only. It is not a Repatriation Commission Guideline or a Departmental Instruction. It is provided for your information and intended only as a guide. It is not meant to replace any fully researched material. Additional material may be added from time to time. Readers are asked to supply corrections and additions to National Office.
HISTORICAL INFORMATION RELEVANT TO THE PERIOD OF THE MALAYAN EMERGENCY AND INDONESIAN CONFRONTATION
Malayan Emergency
1 February 1948 - The Federation of Malaya constituted
The Federation comprised the four Federated Malay States of Pahang, Perak, Negri Sembilan and Selangor, and the five Non-Federated States of Johore, Kedah, Kelantan, Perlis and Terengganu, also the two British Settlements of Malacca and Penang.
18 June 1948 - Malayan Emergency begins
The Malayan Government declared an official 'State of Emergency'. Communist Terrorists ('CTs') had been attacking isolated towns and farms. A campaign of intimidation and propaganda by the 'CTs' commenced.
1950
Australian air forces committed to defend the Malayan Federation.
1952
The Emergency was slowing down by this time as the 'CTs' lost support and influence and were forced to retreat into jungle areas.
1955 - Far East Strategic Reserve Formed
FESR was formed with the intention of deterring Chinese aggression against the countries of South-East Asia by having substantial forces on the spot. Whether or not Australian ground forces would be used in the Malayan Emergency was much debated and coloured by political developments in Australia, Singapore and Malaya.
Australian ground and naval forces committed to fighting the last of the 'CT' forces. By the end of the year the Emergency was largely over but trouble continued to break out periodically for the next 5 years.
31 August 1957 - Malayan Independence
The Federation of Malayan States became an independent nation.
31 July 1960 - Emergency Ended
On this date the Government of Malaya officially declared the Emergency at an end.
Indonesian Confrontation
'Konfrontasi'
December 1962 - Brunei Revolt
A revolt broke out in Brunei against its inclusion in the proposed Malaysian Federation. Indonesia supported the revolt.
The revolt is considered as the start of Confrontation. It was suppressed with the help of British and Gurkha troops. Some Australian personnel were attached to these forces.
In the end Brunei did not join the Malaysian Federation.
20 January 1963 - Confrontation Began
This date represents the declaration of confrontation policy ('Konfrontasi') by the Indonesian Foreign Minister, Dr Subandrio.
16 September 1963 - Federation of Malaysia
The Federation came into being and comprised the former Federation of Malaya, Singapore, Sarawak and North Borneo (Sabah). Brunei was not included.
Confrontation with Indonesia
The Philippines (which claimed Sabah as a former dependency) and Jakarta refused recognition of the Federation of Malaysia. Indonesia rejected the findings of the UN Mission to Borneo, and adopted a 'Crush Malaysia' stand. The brunt of confrontation fell on Sabah and Sarawak where the Indonesians made military incursions along their common borders.
Commandos also landed on the Malayan peninsula in August and September 1964. On 29 October 1964 two parties of infiltrators landed at the mouth of the River Sungei Kesang, just south of Malacca. There were several landing scares along the coast in November-December 1964 and March and May of 1965.
9 August 1965 - Independence for Singapore
Singapore withdrew from the Federation of Malaysia to become the independent Republic of Singapore.
11 August 1966 - Confrontation Ended
The Treaty of Bangkok was signed on 11 August 1966. This officially ended 'Confrontation'.
Description of Periods in Schedule 2
Malayan Emergency and Indonesian Confrontation
Item 2 of Schedule 2 - 29 June 1950 to 31 August 1957 - Malaya
This covers the period of the emergency from the beginning of Australian involvement to the date the Federation of Malaya acquired independence on 31 August 1957. It represents the period of highest activity. By 1955 the situation had become mainly a clean-up operation.
Item 3 of Schedule 2 - 1 September 1957 to 27 May 1963 - Malaya & Singapore
The start date is a continuation from Item 2. The end date represents the day before the commencement of the Repatriation Special Overseas Service Act 1962 (SOS Act).
Although the Emergency ended in 1960, the possibility existed that the remnants of the CT forces could possibly pose a threat to Australians stationed in Malaya. However these forces only posed a threat to Australian personnel in operations on the Thai-Malay border.
Item 5 of Schedule 2 - 28 May 1963 to 19 April 1967 - North Malaya/Thai border (Not Butterworth)
The start reflects the commencement of the SOS Act. The significance of the end date has not been able to be established.
Australian involvement on the Thai border came to an end on 30 November 1964.
Item 6 Schedule 2 - 8 December 1962 to 30 September 1967 - Borneo
The start date is the date the rebellion broke out in Brunei. The end date is on advice from Defence. The significance of this date has not been able to be established. (see also Item 7)
No Australian units served in Brunei during the rebellion, however individual members of the ADF were attached to British units in Brunei.
Order for all British and Commonwealth units to crease operations came into force on 12 August 1966 following signing of the accord to end hostilities. The withdrawal was completed in November 1966.
Item 7 Schedule 2 - 17 August 1964 to 30 September 1967 - South Malaya & Singapore
The start date reflects the first Indonesian landing on Malay Peninsula. End date is on advice from Defence. The significance of this date has not been able to be established. (see also Item 6)
On the night of 1-2 September 1964, Indonesians parachuted into Johore. On 29 October 1964 two parties of infiltrators landed at the Sungei Kesang river mouth, just south of Malacca. There were several landing scares along the coast in November-December 1964 and March and May of 1965.
Acts Relating to Service in
South-East Asia
This Act provided benefits to certain members of the Forces who served in Malaya with, or in connection with, the British Commonwealth Far East Strategic Reserve, and for purposes connected therewith. Assented to 1 September 1957.
The Act was amended in 1962 to say that Malayan service of a member of the forces does not include service after the commencement of the Repatriation (Special Overseas Service) Act 1962.
Repatriation (Special Overseas Service) Act 1962, which came into effect on 28 May 1963, was to provide benefits for certain members of the Defence Force who served on 'Special Service' outside Australia, and for purposes connected with that service. This service includes Malaya and Vietnam. The Act gained Royal Assent on 14 December 1962.
The GSM 'Malaya' was awarded to Army and RAAF for service in:
The Naval GSM 'Malaya' was awarded to the RAN for service between 16 June 1948 and 31 July 1960:
The medal was awarded to approximately 4,500 veterans of the Australian Defence Force including about a dozen RAN personnel. All Australian Defence personnel who have either the GSM 'Malaya' or Naval GSM 'Malaya' are also eligible for the Australian Active Service Medal 'Malaya'.
Qualifying criteria:
The Australian Service Medal (FESR) is awarded to the RAN for 30 days or periods amounting in aggregate to 30 days service between 2 July 1955 and 30 October 1971 for service with the Far Eastern Strategic Reserve.
It is proposed that Naval GSM with clasp 'Malaya' and AASM 1945-75 with clasp 'Malaya' and the Returned from Active Service Badge (RASB) be awarded for RAN service with FESR between 1955 and 1960.
Contacts
All contacts concerning medals should be by the claimant direct to the respective Medals Areas.
RAN personnel or Merchant Mariners
Navy Medals Section
Queanbeyan Annex
Department of Defence
CANBERRA ACT 2600
Australian Army personnel
Army Medals Section
GPO Box 5108BB
MELBOURNE VIC 3001
RAAF personnel
Air Force Medals Section
Queanbeyan Annex
Department of Defence
CANBERRA ACT 2600
The Official History of Australia in SouthEast Asian Conflicts 1948-1975 has three parts that are of interest
“Emergency and Confrontation”, Peter Dennis and Jeffrey Grey, Allen and Unwin, Sydney, 1996. This is Army operations.
“Up Top”, Jeffrey Grey, Allen and Unwin, Sydney, 1998. This is Navy action.
“The RAAF in Vietnam”, Chris Coulthard-Clark, Allen and Unwin, Sydney, 1995. This is RAAF beginning in Thailand and ending in Vietnam.
Acknowledgments
Thanks to Ann Donnelly and Anthony Staunton for the summaries provided for this advice.
If you have any additional information please contact them on (02) 6289 6439 (Ann) or (02) 6289 6640 (Anthony).
John R Douglas
Director
Policy Eligibility and Research
31 May 2000
Advisory from Disability Compensation Branch
No 9/2000
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, the Administrative Appeals Tribunal Act 1975 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.
This Advisory is intended for Directors, Team Managers and Advocates. A simpler version is available for Claims Assessors and those with a lesser exposure to the law and decisions in the Tribunals and Courts.
Section 25 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act') provides the Administrative Appeals Tribunal ('the AAT') with the power to review certain decisions. The extent and nature of the power of the AAT power to review decisions has been the subject of numerous court and AAT decisions. Mr Justice Smithers in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 rejected the proposition that the role of the AAT is to simply satisfy itself that that the decision under review was one that an administrator acting reasonably might have made. The Court held that the role of the AAT is to decide for itself that a decision made by the administrator was the right decision. The duty of the AAT is to satisfy itself that that the decision under review is a decision that, in its view, was objectively the right decision one to be made.
Other provisions of the AAT Act further add to the extent and nature of the AAT's power to review a decision. Subsection 43(1) of the AAT Act provides that, for the purpose of reviewing a decision, the AAT may exercise all the powers and discretions that are conferred on the original decision-maker and has the power to affirm, vary or set aside the decision under review. Section 33(1)(c) of the AAT Act provides that the AAT “may inform itself on any matter in such manner as it thinks appropriate”. Mr Justice Gray in Calderaro v Secretary, Department of Social Security (1991) 14 FCR 244 held that the AAT is not bound to accept evidence merely because it is uncontradicted. The duty placed on the AAT is to be persuaded as to the truth of that evidence. In Adamou v Director-General of Social Security (1985) 3 AAR 321 the AAT stated that it must directly inform itself upon all matters relevant to its decision.
Accordingly, the AAT Act itself requires the AAT to stand in the shoes of the original decision-maker and make a decision taking account of all of the evidence that is available up to the date that it hands down its decision. Unlike judicial review (which is limited to a review based on finding an error of law), the AAT review is a merits review which results in a de novo review of the facts and law by the AAT. This approach is to the advantage of the applicant since the applicant can bring forward material that was not put to the original decision-maker.
The colloquy is that the whole decision is under review and that it is possible that additional information may lead to a reduced outcome for the applicant. This is a matter for the applicant and his or her representative to take into account when pursuing the appeal. This potential “risk” was shown in the case of Re Fitzmaurice and Repatriation Commission (1987) 13 ALD 723. In that case it was held that it was not open to an applicant to challenge only that part of the decision of the Veterans' Review Board assessing the rate of pension and not also the Board's finding on the entitlement question. The AAT found that this was one decision under section 25 of the AAT Act and that the AAT was required to review the finding of both the rate of the pension and the actual finding of incapacity.
In specified circumstances, the Repatriation Commission has the power under section 31 of the VEA to review entitlement to a pension or attendant allowance and, if appropriate, to cancel, suspend or vary the pension or attendant allowance payable to a person. For example:
Where an application for review has been made to the AAT (other than by the Commission) but has not been determined by the Tribunal, the Commission may review the decision under review. However, in these circumstances the Commission can only vary the decision with the consent of the applicant: subsection 31(2).
It is not the usual practice of the Commission to have a matter that is before the AAT referred back for a section 31 review. The Commission takes the view that a matter at the AAT is able to be determined on the basis of the 'final facts', that is there are no appeals based on the facts after the AAT.
Referral back to the primary decision-maker would create three further levels of fact finding, s31, VRB and AAT. It is certainly possible to do this and this is supported by the ability of a claimant to appeal a s31 decision to the VRB and therefore to the AAT.
The Repatriation Commission policy is that any matter is open at the AAT where the material reveals a materially different fact or basis for the original grant MUST be re-examined in accordance with the provisions of the Veterans' Entitlements Act 1986.
In matters where a dispute arises as to the original facts the issues MUST be settled in the Administrative Appeals Tribunal and not referred back to the primary level
[11] [33] .The claimant and the representative should be advised of this at the first preliminary conference. This includes advice that if at any time during the course of the proceedings, even after the first PC, matters come to light that would throw material doubt on any part of the original decision, the original decision may be reconsidered.
Where there is any doubt as to the significance or materiality of the new facts, the opinion of the State Office Compensation area should be sought. If there are still unresolved concerns the matter should be referred to National Office.
Director
Policy Eligibility and Research
2 June 2000
See the provision of section 42D of the Administrative Appeals Tribunal Act 1975.
[11] (go back) [34]
Advisory from Disability Compensation Branch
No 10/2000
This is an advisory note only. Disability Compensation Branch, Income Support 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.
It represents the considered and agreed view of all three Branches and should be taken into account by all delegates.
PAYMENT OF
TEMPORARY SPECIAL RATE (TTI)
AND
INVALIDITY SERVICE PENSION (ISP)
Two payments that cannot be made concurrently
This advisory is for the information of delegates of the Repatriation Commission who are responsible for determining a veterans' rate of Disability Pension or payability for an Invalidity Service Pension.
2.It outlines the relationship between Invalidity Service Pension (ISP) and the Temporary Special Rate, commonly referred to as the Temporary Total Incapacity (TTI) rate of disability pension. Although there is no specific legislative bar, the effect of the rules for these pensions mean that veterans should not be able to receive both at the same time.
3.This document contains:
4.The criteria for ISP contained in the Repatriation Commission determination, made under subsection 37AA(1) of the Veterans' Entitlements Act 1986 (the VEA), include the requirement that a veteran's impairment is permanent. Permanency was also a requirement for ISP prior to the introduction of these new criteria on 1 January 2000.
5.There is no provision in the VEA to grant ISP on a temporary basis, although there may have been a practice some time in the past to grant ISP to temporarily disabled veterans. It is clear that such veterans are now obliged to go to Centrelink for appropriate income support.
6.It follows that a veteran who has been correctly assessed as TTI cannot receive an ISP. TTI implies that the veteran satisfies the 'alone' test in s.24 - that is, there are no significant disabilities other than accepted conditions affecting employment. TTI also implies that the incapacity from these is temporary.
7.Conversely, a veteran who is correctly receiving an ISP should not qualify for TTI because the payment of ISP implies that the veteran suffers permanent incapacity.
If the permanent incapacity for ISP is from accepted conditions alone the veteran may be eligible for the Special Rate, Totally & Permanently Incapacitated (TPI) pension. If the permanent incapacity includes a significant non-accepted condition, then the 'alone' requirement probably cannot be met where required for a TPI pension. However, the operation of subsection 24(2)(b) may still enable a TPI pension grant if the veteran has been genuinely seeking to obtain work and accepted conditions are the substantial cause preventing further job search. In either case, the presence of permanent incapacity at a level that satisfies the ISP incapacity criteria would preclude a TTI pension grant.
8.Commission Guideline CM 5011 discusses the section 24 criteria in detail.
9.The notion of permanency suggests that a veteran's incapacity will last forever with little prospect of improvement. However, the existence of the Veterans' Vocational Rehabilitation Scheme, which includes special pension preservation entitlements for ISP and TPI, reflects that some motivated 'permanently incapacitated' veterans can hope to benefit from appropriate rehabilitation and support and possibly re-enter the work force.
10.So decision-makers must decide, to their reasonable satisfaction, whether the present evidence means that it is likely or not likely that a veteran's level of incapacity will continue indefinitely or for the foreseeable future.
11.Commission Guideline CM5011 on the criteria for special rate pensions states (on page 7), “for the 'degree of incapacity' to be permanent, it must be likely to continue indefinitely. (Emphasis added.)
12.Determining the outcome of a veteran's claim is the responsibility of the delegate of the Repatriation Commission after critically examining all of the material available.
13.The best material to assist in determination of permanency will vary, but in many cases would be a report from the veteran's general practitioner who may have a good knowledge of the veteran's medical and work history, complimented by a report from an occupational physician or similar professional. For cases where the veteran suffers a significant psychiatric disease, the current opinion of a treating psychiatrist, if not already held, should be sought.
14.If the evidence indicates that the permanency of the veteran's 'degree of incapacity' is at issue, the decision-maker should assess whether:
(i)The veteran can reasonably update past skills or undertake a program of retraining within a reasonable time; or
(ii)The veteran's condition would improve following a program of medical rehabilitation or course of treatment.
15.It is important to remember that the decision must be based on the evidence. Hence the decision on permanency can only be made after reasonable investigation of these issues and should be based on the opinion of professionals qualified to make such judgements. In the end permanency should be conceded unless the weight of evidence points to the probability of an improvement. For example, medical or psychiatric opinions that merely leave open a 'possibility' or state that a veteran 'might' be able to improve and again be fit for work should not be taken by themselves to mean a probability or likelihood.
16.On this basis it is not acceptable to classify a veteran as TTI simply on a 'wait and see' basis rather than grant a TPI pension. To do so is poor application of the law; it denies Veterans Children Education Benefits, the assurance of eligibility for an automatic war widows pension grant and incentives that can be provided under the Veterans' Vocational Rehabilitation Program.
17.Conversely, a decision to grant ISP or TPI cannot be made if there is evidence shows a probability of improvement.
18.If later information suggests that the original decision was wrong or that circumstances have changed the case can be reviewed A person returning to work or demonstrating a capacity to do so can always be reviewed under section 31 or sections 54A and 54AA.
Dealing with an ISP claim when TTI is in payment (and vice versa)
19.A common sense approach should be taken and a decision-maker must ensure that one decision is not made without regard to the other. The evidence for a pension claim includes supporting material provided with the claim, information already held and information gathered after the claim is made.
20.In this context a first step may be to identify whether the significant conditions causing the veterans incapacity are the same for both claims.
21.An ISP claim that includes evidence that non-accepted conditions contribute to incapacity for work should be reason to review a veteran's TTI pension if in payment. Additionally, new information on the ISP claim that points to permanent incapacity, should be reason to review the TTI decision with a view to considering TPI.
22.On the other hand, a claim for special rate should have regard to the conditions and incapacity for which an ISP was granted and, if they are the same, the evidence that indicated that no improvement was likely. If the evidence for permanency has changed – that is, there is now evidence that improvement is likely – the ISP decision should be reviewed.
23.Where claims for ISP and Special Rate are made concurrently, it is sensible for the investigation and decision on both claims be coordinated and for the decisions to be made concurrently. This should put the veteran to the least inconvenience in attending medical examinations and should also preclude double medical examinations.
24.Whenever it appears that the issue of permanency may result in refusal of an ISP the veteran (or advocate) should be given the opportunity to provide additional evidence. Similarly the medical practitioners concerned should also have the opportunity to review their opinion.
25.From 1 January 2000, the Repatriation Commission determination under section 37AA(1) provides for assessments using the “Guide to the Assessment of Rates of Veterans' Pensions” (GARP) as part of the criteria for ISP. In these circumstances, any prior GARP assessments made for disability pension purposes are evidence that must be taken into consideration.
26.Significant improvement or decline from the last assessment may be reason to review either a ISP or a TTI determination.
27.Delegates of the Repatriation Commission cannot be instructed to make certain decisions. However, if you as a delegate make a decision either to grant TTI or ISP when the other payment is already in existence without referring the mater to the other Branch then you have not fulfilled the duties of a delegate. You must resolve the conflict in evidence. Whatever decision is made reasons are expected to be clear, precise and easily understood.
28.All decisions that are in contradiction to this joint approach will be reviewed through the normal quality assurance processes.
29.Quality Assurance officers have been instructed to check all cases where TTI and ISP payments co-exist.
30.When it is possible a warning flag will be introduced on both processing systems to notify the existence of the conflicting decisions.
31.In the first instance the normal resources within Sate Offices should be used; Team Leaders, Managers and Delegates working within review areas. If a matter remains unresolved National Office may be contacted for further advice. Present contacts are;
For Income Support questions |
For Disability Compensation questions |
Robyn del CasaleIncome Support IS Policy (08) 8290 0321 |
Perry Phillips Disability Compensation Policy Eligibility & Research (02) 6289-6483 |
Fiona Thompson Income Support IS Policy (07) 3223 8766 |
Bob Hay Branch Head Income Support 7 June 2000 |
Bill Maxwell Branch Head Disability Compensation 1 July 2000 |
Jeanette Ricketts Director Income Support Policy 7 June 2000 |
John Douglas Director Policy, Eligibility and Research 11 July 2000 |
Advisory from Disability Compensation Branch
No 11of 2000
This is not an ordinary advisory note. It is a Departmental Instruction issued as a Stateline. The Stateline and this advice are 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. All Statelines should be followed by all delegates.
Veterans' Entitlements Treatment
(Unidentifiable Condition) Determination 19/2000
and
Anxiety and Depression Determination 11/2000
This Advisory merely contains the actual Stateline concerning Unidentified Conditions that was issued in April 2001. As such it reflects a Departmental Instruction that is to be followed unless later advice reveals any conflict with the legislation.
Similarly a Stateline was issued on 1 September 2000 concerning anxiety and depression. Delegates should refer to that Stateline for instructions on those conditions.
Veterans' Entitlements Treatment
(Unidentifiable Condition) Determination 19/2000
Purpose
The purpose of this Stateline is:
Background
Section 88A commenced on 10 December 1999. It gives the Repatriation Commission the power to make a determination that a veteran included in a specified class is eligible to be provided with treatment of a specified kind under Part V of the VEA.
On 17 April 2000 the Repatriation Commission signed its Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 1/2000. (Note: Authority to provide benefits under this instrument was not delegated until 18 October 2000. The instrument and delegations have now both been superseded.)
This determination provided that:
then, treatment of those symptoms may be provided under Part V of the VEA.
On 7 December 2000, Parliament repealed Section 88A and inserted a new Section 88A as part of the Veteran's Affairs Legislation Amendment (Budget Measures) Bill 2000. This has now received Royal Assent.
On 8 December 2000 the Repatriation Commission signed a new Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 19/2000. A copy of this is attached.
This new Determination includes the same criteria as is predecessor, but expands on commencement and end dates and on how an opinion is to be formed that an unidentifiable condition is present.
The Commission may now only form its opinion that symptoms are from an unidentifiable condition “...after considering the informed advice of an appropriate person...”
The Determination's definitions includes:
“informed advice of an appropriate person means the advice from a medical practitioner employed by the Commonwealth ("medical adviser") as to whether a condition of a veteran satisfies diagnostic criteria in current evidence-based medicine which advice is to be based on an assessment (or assessments) of the veteran's condition by a registered medical practitioner (or by registered medical practitioners) who, in the opinion of the medical adviser, had the special expertise to ascertain if the condition of the veteran satisfied diagnostic criteria in current evidence-based medicine.”
The “medical adviser” nominated by the Commission for the purpose of this Determination is the Senior Medical Adviser in National Office, Dr. Keith Horsley.
The delegations of the Repatriation Commission issued on 18 October 2000 continue to apply for the operations of the new Instruction. A copy of these is available.
The number of cases expected to be granted treatment benefits under this provision are small. Of the more than 35,000 claims for disability pensions that are lodged annually perhaps a dozen might temporarily fall within the terms of this determination until a diagnosis is made.
In those rare cases where relevant specialists have not been able to provide a diagnosis of the claimed symptoms, the Senior Medical Officer in the State processing the case should consult with the Senior Medical Adviser.
When a doctor provides an opinion, it might be hesitant or it might be unwilling to state positively what the disease is. This does not mean that an unidentifiable condition is present. Decision-makers must apply the reasonable satisfaction standard of proof in this situation. Therefore, like the medical profession, 100 per cent certainty is not required in order to be satisfied as to the disease or the treatment to be given.
When a diagnosis cannot be made the condition may simply be an unusual set of symptoms not clearly pointing to a known disease. It will be extremely rare that a new disease or syndrome is indicated.
Treatment for an unidentified condition is usually palliative but it may also be part of clinical testing to reach a diagnosis. If treatment is provided to the veteran and symptoms go away then you can be reasonably satisfied that the condition can be identified (diagnosed) as the one for which that treatment is appropriate.
Opinions or uncertainties about aetiologies are irrelevant as the Determination is about unidentifiable conditions. A statement by a doctor that he/she is unsure of the aetiology or cause of the disease has no place in a decision under this Determination.
As soon as a diagnosis of claimed symptoms is made, the claim must be determined. Thereafter, normal treatment entitlements arising from a determined disability pension claim will operate. If the condition is rejected as being war-caused and no other entitlement exists, the White Card for the unidentified condition must be withdrawn.
There is no application form for this benefit. The Determination requires that a claim for pension under Part II or Part IV must have been made. However a veteran may request, either on that claim, or later by letter, that consideration be given to granting treatment benefits under the s88A Determination. It is preferable that such a request should be in writing.
The earliest date from which the costs of treatment may be reimbursed is the date that is 3 months before the date on which the veteran made the claim for a pension under Part II or Part IV of the Act. In addition the claim for reimbursement must be made within 3 months of that treatment or service being provided by the medical practitioner.
Eligibility continues from the date on which a diagnosis is made to the date on which a determination is eventually made on the service relationship of the diagnosed condition.
Considerations of claims that involves deciding whether this Determination might apply to that case and that result in no action, are not to be recorded as a decision under s88A.
Recording and removing a record of entitlement
Please see detailed procedures set out in attachments A and B.
Refusal to provide treatment under the provisions of the Repatriation Commission Determination constitutes an administrative decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977 and may be appealed to the Federal Court but not to the AAT. Alternatively a veteran may ask the Commonwealth Ombudsman to investigate the circumstances of his or her claim under s 88A.
Handling of undetermined claims
The eligibility criteria for s88A treatment require that the claim concerning an unidentified condition must remain undetermined. This does not mean that it the claim should remain undetermined for lengthy periods of time. It is expected that every decision to grant s88A benefits will be reviewed after 12 months at the most. The Senior Medical Adviser must be contacted before any further determination to continue benefits is made.
At that time decisions should be made on all those conditions that have been identified and the claim 'ended'. If there are still grounds to believe that some unidentified condition remains then further investigation into the symptoms will continue until a diagnosis is found. Eventually the claim must be determined.
Recording and removing a record of entitlement
Please see the detailed procedures set out in attachment A and B. This is an interim solution and will be replaced by a permanent procedure by 1 July 2001.
Attachment A
Recording decisions made under section 88A.
New Codes.
An interim system solution has been implemented which will enable recording of decisions made under s88A covering the provision of treatment (only) for veterans with Unidentifiable Conditions.
Treatment benefits for an unidentifiable condition may only be granted by a senior officer holding a Delegation from the Repatriation Commission to do so.
That decision must have been made before any recording may commence.
A new Decision Source code has been created which will distinguish a treatment entitlement under this determination.
How to record these decision.
During the period that the interim system solution is in effect the following method is to be used to record these decisions:
Step 1.
Register an ENT DECN AMEND case using CM.CE.
Step 2.
Progress the case into Prepare Recording stage.
Step 3.
Use EN.DS to record the decision. For those cases where the veteran has made a claim for a condition that is Unidentifiable the decision should be recorded using the name supplied by the client for the condition. The Decision Source code is “UC”; if for example the veteran claimed FATIGUE, JOINT PAIN, HEADACHES the text would be recorded as:
Undiagnosable Condition - FATIGUE, JOINT PAIN, HEADACHES (Treatment Only)
What is the Decision Body?
Unidentifiable Condition decisions will normally be made in the Disability Compensation area. Therefore the Decision Body should reflect the level of the decision-maker which will not be lower than Assistant Director.
Step 4.
Update EN.DC screen and print.
Step 5.
Finalise the decision recording using EN.RD.
Where are the decisions displayed?
These decisions will be displayed in VIEW as under the Disabilities TAB.
The record of the decision will appear in the ACCEPTED folder unlike other conditions where the veteran is Eligible for Treatment only, eg PSTD or Malignant Neoplasm. This anomaly will be corrected when a long-term solution is implemented.
If the decision is “rejected” the record will appear in the Not Accepted folder.
Note: Any client who is granted treatment eligibility under s88A is entitled to payment of Pharmaceutical Allowance.
Attachment B
Removing Record decisions made under section 88A.
Step 1
Register an ENT DECN AMEND case using CM.CE
Step 2
Progress the case into Prepare Recording
Step 3
Use EN.DS to record the decision. Update the previous decision by entering “A” in the SEL column adjacent to the entry you wish to update.
Press enter which will move to the next screen.
Step 4
Update the EN.DC screen
Step 5
Have another Officer complete the EN.RD function to finalise the case.
The record will appear in VIEW under the Not Accepted folder.
Advisory from Disability Compensation Branch
No 12/2000
REVOKED
In the light of legal advice provided to the Department in 2009, Advisory 12/2000, which concerned the conditions by which aircrew members of Australian Air Force Detachment Sangley Point acquired eligibility for coverage under the Veterans' Entitlements Act 1986, was revoked on 4 February 2010.
On 7 October 2011, on the basis of advice from the Chief of Air Force, the Repatriation Commission conceded entry into the Vietnam operational area by aircrew members of Australian Air Force Detachment Sangley Point who served on Operation Trimdon in late May - early June 1965.
This means that only RAAF members operating out of Sangley Point who took part in sorties relating to Operation Trimdon during this period have operational and qualifying service. It is to be noted that participation in exercises staging out of Sangley Point before or after Operation Trimdon remains classified as peacetime service and is not covered by the VEA.
For more information, please see Departmental Instruction C16/2011 [38].
Advisory from Disability Compensation Branch
No13 of 2000
This is an advisory note only. It was prepared by Medical Officers of the Department of Veterans' Affairs , Disability Compensation Branch and Legal Services Group. All 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.
METASTATIC NEOPLASMS - PRIMARY SITE "UNKNOWN"
The purpose of this advisory is to provide guidance on what to do when a claim is received for a cancer, and the primary site of that cancer is unknown.
This advisory replaces Departmental Instruction B41/95 of 18 July 1995 and takes account of recent Federal Court decisions concerning the steps to take in deciding a claim (Deledio) and the standard of proof to be applied to the diagnosis of an injury, illness or disease (Cooke, Gosewinkel)
All malignant neoplasms originating at a particular site in the body (the primary site) are capable of spreading to other parts of the body. Neoplasms at a distant site that have spread from the primary site are known as metastases (or secondaries). In some patients the first evidence of a cancer may be from the metastases and the primary site may not be known.
Cases where metastatic disease is present but the primary site is unknown account for approximately 5% of all solid cancers.
When the primary site is unknown after an initial diagnosis, in a large proportion of cases it will remain unknown even after thorough investigation.
The standard of proof that applies when confirming the diagnosis of a disease, illness or injury is “reasonable satisfaction”, that is “more probable than not”.
If the primary site of a cancer is uncertain, then in order for a particular primary site to be confirmed as the diagnosis, the material before the decision maker must indicate that it is probable or more likely than not that the cancer arose at that site.
Protocols for dealing with cases
Step 1(a)
For living veterans, the decision maker should first consider whether the veteran has undergone an adequate diagnostic process. This should generally comprise:
If such a process has not occurred, the decision maker should take account of the circumstances of the individual case and then, in consultation with a medical adviser, decide what investigation should be arranged.
Investigations additional to the above, particularly invasive tests such as endoscopies, are only warranted where there is a good clinical indication (e.g. relevant symptoms or abnormality on physical examination). Such further tests have a low detection rate and are unlikely to change the treatment or prognosis.1
Step 1(b)
For deceased veterans, autopsy results should be obtained if available. In a significant proportion of cases, the primary site will remain unknown despite an autopsy.
Step 2
Evaluate the evidence by considering:
Step 3
Discuss the evidence with a medical adviser and then consider the need for further evidence or specialist opinion.
Step 4
If possible, determine the probable primary site. If this can be done then the primary cancer and the metastases should be regarded as one disease and the RMA SOP for the primary site should be applied to the claim. The diagnostic label should include a reference to the metastatic disease. If a probable primary site can be determined and a SOP applied, then the decision maker should proceed to determine the application and apply the four steps of the decision making as outlined in the Commission guidelines relating to the Deledio Full Federal Court decision.
For reasonable hypothesis cases:
If no primary site can be determined then the disease or cause of death becomes cancer of unknown primary site (or similar), which is a non-SOP condition. Any hypothesis regarding the connection to service has to be considered in accordance with the pre SOP law relying on the cases of East / Bushell / Bey.
This means, for example, that if a veteran has metastatic adenocarcinoma, the likely primary site for which cannot be determined, the hypothesis raised may be that the veteran's cancer arose due to a heavy service-related smoking habit (on the basis that most of the more common possible primary sites for adenocarcinoma are smoking-related). This hypothesis could not satisfy the requirements of the case law. As was said in East, “a reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.”
In the circumstances described the hypothesis relates to material that raises a mere possibility which is not enough to satisfy the requirements of the law. point to
For balance of probabilities cases:
If the decision maker cannot be reasonably satisfied about the diagnosis, then the case is a non-SOP claim for cancer of unknown primary site (or similar). The approach outlined for reasonable hypothesis matters should then be followed. In the circumstances it would be an attempt to say that while I cannot be reasonably satisfied that the primary site was “the liver”, nevertheless I am reasonable satisfied that the unknown primary site was “the liver”. This would be a contradiction.
Note: There is no RMA SOP that applies to the category of 'cancer of unknown primary site'. An RMA SOP for cancer of a particular site does not apply if the cancer at that site has metastasised from another site. This is a medical issue not a legal one and the absence of a metastases in a SoP for a particular cancer site or type does not allow any unfavourable conclusion to be made about relation to service.
The following general information from the scientific literature should be of some assistance when trying to determine a likely primary site.
In general, most metastatic tumours in adults are carcinomas. In cases of metastases of unknown primary site, approximately half are adenocarcinomas. Poorly differentiated/undifferentiated and squamous cell carcinomas account for approximately 30%, with lymphomas, sarcomas, melanomas, germ cell tumours, neuroendocrine tumours and other types being uncommon.
A given type of carcinoma can arise at many sites in the body (e.g. adenocarcinoma may arise in the lung, prostate, colon, rectum, stomach, pancreas, kidney and many other sites), so the identification of a particular histological type does not establish the primary site. Certain morphological (cell) features are frequently associated with specific sites (e.g. clear cells in the case of kidney cancer), but these are also not diagnostically specific. Histology may suggest a particular primary site or a short-list of possible sites, but it will not definitively establish the origin of metastatic carcinoma.
For some non-carcinomas, histopathology of metastases will positively identify the type of primary disease and allow confirmation of diagnosis. Using advanced immunocytochemical techniques, pathologists can establish with certainty a diagnosis of lymphoma, sarcoma, melanoma, germ cell tumours and neuroendocrine tumours. Such information will be sufficient to confirm relevant diagnoses, particularly Non-Hodgkin's Lymphoma, Soft Tissue Sarcoma and Malignant Melanoma of the Skin.
In cases of metastases of unknown primary site where the primary is subsequently able to be detected (e.g. at autopsy), the most frequently seen primary sites are lung, pancreas, colon/rectum, stomach, liver and kidney. None of these sites accounts for more than 10% of total cases. Some commonly occurring tumours are relatively easy to detect and therefore infrequently present as a cancer of unknown primary site (e.g. prostate, breast).
For known primary cancers, particular patterns of metastatic spread are commonly seen. For example, lung cancer and prostate cancer often spread to bone, and colon cancer typically spreads to the liver. Therefore, metastases at certain sites are seen more frequently with particular primary cancers. However, many cancers can spread to the common metastatic sites (i.e. lymph nodes, liver, bone, lung, brain). Thus, the presence of metastases at a particular site does not often provide a firm clue to the site of an unknown primary. Nevertheless, the metastatic site, in conjunction with other available evidence, may suggest a likely primary site. The following table provides general data (not specific to the veteran population) on the common metastatic and primary sites:
Site of metastases |
Common primary site |
Approximate likelihood |
Brain |
Lung Gastrointestinal tract Melanoma Lymphoma |
70% 9% 2% 2% |
Bone |
Lung Prostate |
40% 17% |
Cervical lymph nodes |
Mouth Pharynx Larynx Skin Lung Thyroid |
50% 50% 50% <10% <10% <5% |
Liver |
Lung Colon/Rectum Pancreas Liver Melanoma Breast Stomach |
18% 17% 16% 9% 6% 6% 5% |
Lung |
Lung Colon/Rectum Breast Kidney Prostate Thyroid |
NA NA NA NA NA NA |
Malignant pleural effusion |
Breast Lung Lymphoma |
24% 19% 10% |
Malignant ascites |
Colon/rectum Stomach |
NA NA |
NA = not available.
Note:This does not mean that it is not possible or even probable. Fore the purpose of an “ hypothesis” they should be considered and the normal Deledio approach adopted.
This paper is prepared with the assistance of the Decision Support Unit
Dr Jon Kelley
Dr Bev Grehan
John Douglas
Director
Policy Eligibility and Research
8 December 2000
Step 1(b)
Step 2
A given type of carcinoma can arise at many sites in the body (e.g. adenocarcinoma may arise in the lung, prostate, colon, rectum, stomach, pancreas, kidney and many other sites), so the identification of a particular histological type does not establish the primary site. Certain morphological (cell) features are frequently associated with specific sites (e.g. clear cells in the case of kidney cancer), but these are also not diagnostically specific. Histology may suggest a particular primary site or a short-list of possible sites, but it will not definitively establish the origin of metastatic carcinoma.
Advisory from Disability Compensation Branch
No 14 of 2000
This is an advisory note only. Disability Compensation Branch, Income Support 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.
EXTENSION OF VEA BENEFITS FOR SOUTH-EAST ASIAN SERVICE 1955 TO 1975
What are the extension of entitlements to Australian Defence Force (ADF) personnel who served in South-East Asia from 1955 to 1975 that came into effect on 1 January 2001. What changes have been made to the Veterans' Entitlements Act 1986 (VEA).
This advisory was originally issued on 8 December 2000 in expectation of legislation being passed and allotment certificates being issued. This version takes in account that the legislation has passed and the allotment certificates were issued.
In the 2000/2001 Budget the Government announced that it would change the classification of a number of deployments to provide compensation and/or income support under the VEA. These changes followed recommendations contained in the Mohr Report - “Review of Service Entitlement Anomalies in respect of South-East Asian Service 1955-1975”. Not all the recommendations contained in the Mohr Report were accepted by the Government.
The criteria for qualifying service for members of the Australian Defence Force in post World War II conflicts are:
The concept of “ in operations against the enemy...at a time when the person incurred danger from hostile forces of the enemy...” has no application to members of Australia's Defence Force in conflicts after WWII.
Naval service with FESR was covered in paragraph 6D(1)(b) of the VEA and Army and Air Force service was covered by Item 2 and 3 of Schedule 2 to the VEA. All branches of the Australian Defence Force are now included in:
-Item 2 of Schedule 2 from 29 June 1950 to 31 August 1957 (dates unchanged) for qualifying service, and
-Item 3 of Schedule 2 from 1 September 1957 to 31 July 1960 (end date brought forward) for qualifying service.
(Note:Service in both periods remains operational service for disability pension claims.)
-amended paragraph 6D(1)(b) from 1 August 1960 to 27 May 1963 provides operational service only.
The Department of Defence have "allotted for duty” personnel who served within this 82-day period for the purposes of Item 3 of Schedule 2.
The Department of Defence have "allotted for duty” units that have served on the Malay-Thai border. Because of difficulties in establishing whether an individual served in the area Advisory No2/2001 - Malay-Thai Border should be consulted.
and 11 August 1966.
Army and RAAF units were stationed here between 17 August 1964, the date of the first Indonesian landing in Malaya and 11 August 1966 the date of the Treaty of Bangkok that ended the Indonesian Confrontation. The Department of Defence have allotted units for duty for the purposes of Item 7 of Schedule 2.
- HMAS Vampire from 8 January to 10 January 1965, and
- HMAS Yarra, Parramatta and Sydney from 4 June to 6 June 1964
The 2000-2001 Budget announcement indicated that these ships would be classified as having operational service. Since then, a further review by Defence determined that from 1 January 2001 the ships have both operational AND qualifying service for the periods mentioned.
The Department of Defence has allotted these ships under Item 6 of Schedule 2.
The Department of Defence has allotted for duty Australian Defence Force personnel seconded to the Royal Malaysian Armed Forces under Item 7 of Schedule 2.
Only those merchant mariners who served on board the ships during the time that the ships were commissioned into the RAN are eligible. These ships were commissioned in the RAN for discrete periods during the Vietnam War. Prior to commissioning, the ships were recorded as MV Jeparit or MV Boonaroo. When commissioned, the ships appear as HMAS Jeparit or HMAS Boonaroo. After de-commissioning, the ships reverted to MV Jeparit and MV Boonaroo. Merchant mariners who served on the ships during the non-commissioned periods are not covered under the VEA.
The Minister for Veterans' Affairs has issued a determination under section 5R of the VEA to cover service on HMAS Jeparit and HMAS Boonaroo.
New instruments were issued to replace the existing determination on Ubon as follows:
Service between 31 May 1962 to 24 June 1965 is operational service only, and
Service between 25 June 1965 to 31 August 1968 is warlike service.
Only service in the latter period constitutes qualifying service.
The requirement for the award of the General Service Medal, Clasp Malaya, in relation to ADF service in Malaya during the period 1 September 1957 to 27 May 1963 has been removed.
The requirement is allotment to, and service in, the area described in Item 3 of Schedule 2 of the VEA.
Veterans' records should already indicate whether a claimant served in the area and identify the unit concerned. Existing service records on file may be used if they verify service in these areas. If they do not support the veteran's claim to have the required service further information should be sought from the relevant service records office in the Department of Defence.
Mere presence in an operational area does not of itself confer eligibility. The Department of Defence must also have allotted personnel and units for duty in the operational area. The end date for Item 7 remains as 30 September 1967 although no units or individuals have been allotted for duty after 14 September 1966. Units that now have eligibility as a result of the extension of entitlements on 1 January 2001 will have an end date of 11 August 1966, the date of the Treaty of Bangkok that marked the official end of Confrontation.
Schedule 2 - The end date for Item 3 is 31 July 1960 the date that the Malayan Emergency officially ended. Service in Borneo (Item 6) and on the Malay-Thai Border (Item 5) from 17 August 1964 is now included in Item 7 which has been renamed Malaysia, Singapore and Brunei.
Section 6 Operational Service - Subparagraph 6D(1)(a)(iii) is amended to change the end-date for service in North-East Thailand to 24 June 1965.
Paragraph 6D(1)(b) is repealed and replaced with “was at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya”. This means that the start date is now 1960 instead of 1955 and the description is Malaya and Singapore instead of FESR.
The VEA continues to refer to FESR in sub-sections 6D(2) and 6D(3), which cover the “port to port”, provisions. The reference to FESR means service “at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya”.
Section 7A Qualifying Service - The GSM Malaya Clasp requirement mentioned above is deleted.
1 January 2001 is the effective date of changes made by the Veterans' Affairs Legislation Amendment (Budget Measures) Bill 2000. The earliest possible date for the backdating of any benefit or payment is 1 January 2001.
It is expected that some veterans who have become eligible to claim under Part II of the Veterans' Entitlements Act 1986 due to these changes will have previously claimed under other Commonwealth compensation schemes. The usual compensation offsetting arrangements will apply as set out in Division 5A, Part II of the VEA (Sections 30A to 30P).
Note: The compensation offsetting provision for disability pensions granted under Part II commenced on 21 June 1994 and applies to compensation payments received after this date. Any compensation received prior to 21 June 1994 is not subject to compensation offsetting under Part II of the VEA.
If a person has operational service and incurred an injury or disease that they believe was sustained during, or aggravated by, that service, they are entitled to claim compensation in the form of disability pension and treatment under the Veterans' Entitlements Act 1986 (VEA).
Operational service also gives eligibility for a Defence Service Home Loan.
In addition, they are eligible to apply for the service pension if they have qualifying service, including warlike service.
A person may test their eligibility by lodging a claim with the Department of Veterans' Affairs. They should contact the nearest Veterans' Affairs office, which will arrange for a claim form to be sent to them. Ex-Service organisations are also able to provide assistance in obtaining and completing a claim form.
No veteran should be told they are ineligible to make a claim. A decision on a claim may determine that they are ineligible, but all claims must be accepted and tested.
The Budget extensions are only for ADF forces. There are no extensions for Commonwealth or Allied forces. However, two points should be made.
First, there is no Commonwealth eligibility for service in Malaya from 1957 to 1960. You will note that the exclusion previously contained in paragraph 7A(1)(b) of the VEA has been removed since Item 3 of Schedule 2 now has an end date of 1960 instead of 1963.
Second, although a warlike instrument has been issued for Ubon, Commonwealth service personnel who may have been stationed there at the same time as Australian Forces are not be eligible for qualifying service. This is because the area is not included in Schedule 2 and therefore they do not satisfy the legislative requirement to have served having served in an operational area contained in Schedule 2.
Please contact Anthony Staunton on 02 6289 6640 or Marie Leach on 02 6289 6046 for further information.
Perry Phillips
Director
Policy Eligibility and Research
6 March 2003
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:
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.
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:
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
1
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/24573%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/21580%23comment-form
[3] https://clik.dva.gov.au/compensation-and-support-reference-library/departmental-instructions/2008/c322008-military-service-world-war-2-within-australia
[4] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn1
[5] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn2
[6] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn3
[7] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn1
[8] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn2
[9] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn3
[10] https://clik.dva.gov.au/user/login?destination=node/21595%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/21586%23comment-form
[12] http://www.minister.defence.gov.au/2000/sea.html
[13] https://clik.dva.gov.au/user/login?destination=node/21621%23comment-form
[14] https://clik.dva.gov.au/user/login?destination=node/21601%23comment-form
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[16] https://clik.dva.gov.au/user/login?destination=node/21587%23comment-form
[17] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn4
[18] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn5
[19] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn6
[20] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn7
[21] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn8
[22] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn9
[23] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn10
[24] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn4
[25] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn5
[26] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn6
[27] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn7
[28] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn8
[29] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn9
[30] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn10
[31] https://clik.dva.gov.au/user/login?destination=node/21599%23comment-form
[32] https://clik.dva.gov.au/user/login?destination=node/21571%23comment-form
[33] https://clik.dva.gov.au/book/export/html/24573#tgt-csref_an_00_ftn11
[34] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_ftn11
[35] https://clik.dva.gov.au/user/login?destination=node/21575%23comment-form
[36] https://clik.dva.gov.au/user/login?destination=node/21602%23comment-form
[37] https://clik.dva.gov.au/user/login?destination=node/21600%23comment-form
[38] https://clik.dva.gov.au/compensation-and-support-reference-library/departmental-instructions/2011/c162011-vea-eligibility-operational-and-qualifying-service-attributable-service-sangley-point-philippines-operation-trimdon
[39] https://clik.dva.gov.au/user/login?destination=node/21613%23comment-form
[40] https://clik.dva.gov.au/book/export/html/24573#ref-csref_an_00_edn1
[41] https://clik.dva.gov.au/user/login?destination=node/21578%23comment-form
[42] https://clik.dva.gov.au/user/login?destination=node/21573%23comment-form