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Sackville J

5 February 1999

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Mr Graham lodged an appeal to the Federal Court against a decision of the Tribunal affirming a decision of the Repatriation Commission which determined that he was not eligible for a service pension, as he had not rendered "qualifying service" as defined by s 7A(1) of the Veterans' Entitlements Act 1986.

Mr Graham served on HMAS Tobruk in Malayan waters during the period 2 July 1955 to 8 July 1955. The AAT rejected his claim, because it formed the view that he had not been "allotted for duty" in the relevant area and thus had not rendered "qualifying service" as defined in s 7A(1)(a)(iii) of the VE Act.

The definition of "allotted for duty" had been amended by Schedule 2 of the Veterans' Affairs Legislation Amendment Act 1990 ("VALA Act"), subsequent to the decisions of the Federal Court in Repatriation Commission v Doessel (1990) 95 ALR 704 and Repatriation Commission v Davis (1990) 94 ALR 621. Those decisions held that the phrase "allotted for duty" (then contained in s 5(12) of the VE Act) was to be determined by reference to the "ordinary meaning" of the words, so that any person who was posted for service in an operational area could be regarded as "allotted for duty" in that area. The amendments introduced by the VALA Act restricted the definition of "allotted for duty" to veterans covered by a written instrument issued by the Defence Force, stating that they or their unit had been allotted for duty in an operational area.

Subsequent to the enactment of the VALA Act, the Veterans' Entitlements Amendment Act 1991 and the Veterans' Entitlements (Rewrite) Transition Act 1991 were enacted. As a result, the definition of "allotted for duty" is now included in s 5B(2) of the VE Act and is in the same form as the restricted definition introduced by the VALA Act.

In Mr Graham's case, the AAT held that, as he had lodged his application in 1996 (after the VALA Act and the Transition Act came into force), his claim was to be determined under the restrictive definition of "allotted for duty" contained in s 5B(2) of the VE Act. The AAT held that, as the applicant was not covered by a written instrument issued by the Defence Force, he was unable to satisfy the definition.

The principal argument put on Mr Graham's behalf was that the definition of "allotted for duty" in s 5B(2) of the VE Act did not apply to him. This was said to be because he had the benefit of a transitional provision now contained in s 93(1) of the VALA Act (as amended by Schedule 4 to the Transition Act). Section 93(1), as amended, provides as follows:

It was submitted that the applicant had applied for and received benefits under the Defence Service Homes Act 1918 ("DSH Act") in 1959 and that his application under the DSH Act had been granted on the basis that he had been allotted for duty in an operational area. Under the DSH Act, the question of whether a person was "allotted for duty" was determined in accordance with the ordinary meaning of those words and not according to a more restrictive definition such as that contained in s 5B(2) of the VE Act.

The Commission accepted that the AAT had not adverted in its reasons to the terms of s 93(1) of the VALA Act. The Commission also accepted that the AAT had erred in law by failing to consider whether the applicant was relieved from satisfying the restrictive definition of "allotted for duty", by virtue of the transitional provisions in s 93(1) of the VALA Act. It also conceded that, although the AAT had not made any factual findings relevant to the application of s 93(1), there was material that might have led the AAT to conclude that the applicant had satisfied the terms of s 93(1).

Sackville J decided that the whole matter should be remitted to the AAT for hearing and determination according to law. This would enable the AAT to consider whether Mr Graham satisfied the terms of s 93(1) of the VALA Act and any alternative arguments that might be put in support of his claim to a service pension.

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