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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Qualifying service - whether "allied veteran" - employed as a civilian non-combatant
Nolan v Repatriation Commission
O'Loughlin J
24 February 1999
[Full Text]
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Ms Nolan, an Australian national, was employed in Vietnam with the US Army and Air Force Exchange Service ("AAFES") from 31 December 1968 to 21 April 1970. In 1996, she applied for a determination that she had rendered qualifying service for service pension purposes. This was refused on the basis that she was not an "allied veteran" as defined in s 5C(1) of the VE Act as she was not a member of a defence force established by an allied country.
The AAFES provided retail services to members of the US armed forces in Vietnam, selling food, clothing and other basic comforts. While employed with the AAFES, Ms Nolan worked under the supervision of US service personnel and civilians and was paid by the US Department of Defence. She was not required to wear a uniform and did not carry a military weapon.
Qualifying service
Section 7A of the VE Act provides as relevant:
"7A. (1) For the purposes of Part III, a person has rendered qualifying service:
(a) ...
(b) ...
(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy;"
An "allied veteran" is defined in s 5C(1) as a person:
"(a) who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b) who has rendered continuous full-time service as such a member during a period of hostilities; ..."
The definition of "allied veteran" is modified by s 5R(2) in circumstances where it would have been unreasonable to require the person to wear a uniform, for example, service with allied partisan forces during World War 2.
Issue
The essential issue before the Tribunal was whether Ms Nolan was a person who had been appointed as a member of a "defence force established by an allied country". That expression is defined in s 5C(1) as meaning:
"(a) the regular naval, military or air forces; and
(b) the nursing or auxiliary services of the regular naval, military or air forces; and
(c) the women's branch of the regular naval, military or air forces;
raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d) were formally appointed to, or enlisted in, those forces or services; and
(e) were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f) were required to carry arms openly; and
(g) were subject to the rules and conventions of warfare."
Submissions
Ms Nolan submitted as follows:
- the AAFES was an "auxiliary service" of the US defence force and she was therefore a member of a "defence force established by an allied country";
- she was formally appointed to the AAFES;
- she was subject to the rules and conventions of warfare; and
- as a member of the AAFES, she was not required to wear a uniform and was not required to carry arms and it would have been unreasonable for her to have been required to wear a uniform or to carry arms.
Court's conclusion
O'Loughlin J said that in order for Ms Nolan to succeed with her application, she had to satisfy the Repatriation Commission that she was not required to wear a uniform or insignia and was not required to carry arms and also that it would have been unreasonable for her to have been required to wear a uniform or insignia or to carry arms. She had failed in this regard. His Honour held that there were no errors of law in the decision of the Tribunal that she was not an "allied veteran" as defined. The appeal was therefore dismissed.
Formal decision
The Court dismissed the appeal.
[ED: Ms Nolan has lodged an appeal to the Full Court of the Federal Court.]
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