Ken Marsh, 1 December 2015
If my conclusions are correct, there are many Australian Military Veterans with eligibility to the Australian Service Medal (ASM) who are being denied the repatriation benefits to which they are entitled under the Veterans’ Entitlements Act 1986 (VEA). If my conclusions are incorrect I would like to be provided with details of the specific legislative and regulative instruments that demonstrates my error and not some garbled statement from the Ministers or other representatives of the Departments of Defense or Veterans’ Affairs that disregard context and only quote the legislation that suits their position
While the following comments are based on the ASM 1945-1975 both it and the post 1975 ASM are, for all intents and purposes, one and the same. Therefore my comments are equally as relevant to both.
The Australian Service Medal 1945-1975
The Australian Service Medal (ASM) 1945-1975 was Gazetted on 3 April 1995 to recognise service on ‘non-warlike military operations’ between 3 September 1945 and 16 September 1975. To date 14 clasps have been approved:
- FESR (Far East Strategic Reserve)
- Middle East
- PNG (Papua New Guinea)
- SE Asia
- Special Ops
- SW Pacific
- W New Guinea
Service from 1975 onward until the recent introduction of the Operational Service Medal is recognised with the Australian Service Medal.
Under the Veterans’ Entitlements Act 1986, Section 6.F, ‘non-warlike service qualifies as ‘Operational Service’, thus attracting more generous benefits than defense, or peacetime, service. Non-warlike service attracts similar benefits to warlike service with the exception of a service pension and automatic entitlement to a Gold Card at 70. For example, those with peacetime service can receive a disability pension for arthritic knees if they can show that they climbed or descended 300 or more steps on most days of the week for 10 years and are diagnosed with arthritis within 25 years of doing so. For operational service it is suffice to demonstrate ascending and descending the same number of steps for a two year period without limit on the years that have past before the condition presents.
There is an inconsistency associated with the award in that at least some of the clasps are not recognised as ‘operational service’, as is also the case with some post 1975 service. This appears to be in contravention of the Veterans’ Entitlements Act 1986.
What the Minister Said
In July I wrote to my local member asking why some holders of the ASM are treated differently to others with regards entitlements. Recently I received a response from the former Minister for Veterans’ Affairs, Senator the Hon. Michael Ronaldson. I quote:
In describing service rendered by Australian personnel in PNG during the relevant period and the reasoning behind the decision to award the ASM in respect of this service, Mr Marsh refers to and quotes from the 1994 report of the Committee of Inquiry into Defence Awards (CIDA). Mr Marsh also makes reference to the criteria used by the Committee of the Review of Veterans’ Entitlements (the Clarke Review) to assess non-warlike service in 2003.
As you will appreciate, it is important not to confuse the differing objectives and terms of reference of the CIDA and Clarke Review. The CIDA was solely concerned with reviewing the medallic entitlements provided in respect of different types of and periods of service in the Australian armed forces. Conversely, the Clarke Review’s scope was confined to the classification of different periods of service in relation to eligibility for benefits under the Repatriation system. It is a long-established principle that the administration of veterans’ entitlements and medallic recognition for various types of service is entirely separate, and the recipient of a certain level of entitlement does not necessarily imply eligibility for a certain level of the other.
Thus, while the Directorate of Honours and Awards within the Department of Defence on occasion uses the term ‘non-warlike’ to describe service under peacetime conditions, this does not mean that the same service is regarded as as non-warlike service (or an equivalent classification) under the legislation administered by the Department of Veterans’ Affairs. While the Clarke Review found that service in PNG during the relevant period often involved arduous and long patrols in harsh terrain, essential purposes of these duties was training and the readying of PNG personnel to form a national defence force after independence. The Review concluded that the duties undertaken by Australian personnel in PNG during this period should not be covered under the Veterans’ Entitlements Act 1986 (VEA).
The Minister’s statement must be seen in context.
WWII to 1993
According to Clarke, the VEA provides entitlements to personnel who have given three years continuous service ‘on or after 7 December 1972 until the terminating date, namely 7 April 1994’, when the Military Compensation Scheme was introduced. (Provisions exist for those with less than three years service who were medically discharged.) (Clarke, 13.25 - 13.35).
In 1981 provision was made for those on peacekeeping operations and this was made retrospective to the end of WWII in 1982. Hazardous service was introduced without a definition in 1986 to cover service that could not be classified as peacekeeping but was considered to have a similar level of risk. Determination of hazardous service was made by the Minister of Defence. Peacekeeping and hazardous service classification do not attract a service pension but do qualify for the more generous access to compensation entitlements.(Clarke 13.18 - 13.24).
Former Defense Force personnel with service prior to 1972 with peacetime service only are entitled to compensation on the same basis as Commonwealth Public Servants - according to Clarke. (Clarke, 13.27).
In the years between then end of WWII and 1993 the number of overseas deployments of Australian Defence Force (ADF) members had steadily increased. The system of determining conditions was drawn out, subject to negotiations between different departments, with the troops not being informed of conditions and entitlements prior to departure. Consequently inconsistencies between deployments arose. (Clarke 13.36 - 13.38).
Warlike and Non-Warlike Service Introduced
In 1993 the Government introduced the terms ‘warlike’ and ‘non-warlike’ service and these have been used by Defense since 1994. Definitions for both were inserted into the VEA, effective from 13 May 1997. (Clarke 10.8; 13.38). Non-warlike service is defined in S.5C (1) as ‘service in the Defence Force of a kind determined in writing by the Defence Minister to be non-warlike service.’ It embraces service where the risk is less than that of warlike but greater than normal peacetime service, including both peacekeeping and hazardous service. Casualties could occur but are not expected and the use of force is limited to self defence (Clarke 10.10).
A determination of ‘warlike’ or ‘non-warlike’ is now made by the Minister prior to deployment. The risk assessment includes an evaluation of military and environmental (health) threats. Clarke 13.40). However, as noted above, the terms ‘warlike’ and ‘non-warlike’ were inserted into the VEA in 1997, approximately three years after service under the Act terminated. Clearly this means that any determination of ‘warlike’ or ‘non-warlike’ service within the period to which the Act applies could only be made retrospectively.
Clarke’s Terms of Reference are contained in Volume1, Appendix 1 of the report. They are expressed thus:
Terms of Reference
The Government is committed to providing fair, consistent and appropriate benefits to Australia’s veterans.
Against this background, the committee will review and make recommendations on:
- The current policy relating to eligibility for access to VEA benefits and qualifying service under VEA; and
- The benefits available to disability compensation pensioners under the VEA.
These terms were expanded to review specific matters relating to access to benefits and perceived anomalies arising from past service.
The Committee of Inquiry into Defense Awards
CIDA, chaired by General Peter Gration, presented its report in March 1994. It was later described as ‘possibly the most significant of all reviews dealing with Defence medals.’ (Defense Honours and Awards and Commendations Policy Review, 8 February 2008). Its terms of reference included:
- Examine claims for recognition of categories of service.
- Consider the need, if any, to introduce additional awards to recognise service in past defence-related activities of either warlike or non-warlike nature.
- Make appropriate recommendations.
The Committee developed 10 principles to guide its deliberations.
Principle 8 stated:
Recognising that its work requires viewing past service through the eyes of 1994, the Committee believes that an appropriate benchmark considering hitherto unrecognised service between 1945 and 1975 is the terms and conditions currently attached to an award of the Australian Active Service and Australian Service Medals. Service rendered during this period which generally meets those terms and conditions should receive retrospective and comparable recognition.
It would have been well aware of Government policy regarding operational service and medals. A prerequisite for the award of an operational medal such as the ASM is the declaration of a military operation. This was reiterated in 2010 by the Vice Chief of the Defence Force, Lieutenant General D. J. Hurley AC, DSC, in a submission to the Defence Honours and Awards Tribunal Inquiry into the Recognition of Members of Rifle Company Butterworth for Service in Malaysia between 1970 and 1989. To quote paragraphs 31 and 36:
(31) Current government policy on the nature of operational service and its relationship with medals is drawn from a 1993 Cabinet Decision which established the extant conditions of service framework. One of the key outcomes of the Cabinet Decision was agreement on new definitions for warlike and non-warlike service… Under the framework a nature of service declaration becomes an enabling driver for the associated conditions of service package. This includes non-financial conditions of service such as medals…
(36) The determination of the nature of service of a particular operation marks the point at which the Directorate of Honours and Awards can consider the appropriate level of medallic recognition for the operation in accordance with established policy. Under the conditions of service framework personnel deployed on warlike operations are awarded the Australian Active Service Medal with an appropriate clasp. Personnel deployed on a less hazardous, non-warlike operation, are awarded the Australian Service Medal with an appropriate clasp.
This policy is reflected in CIDA’s Principle 10:
Matters relating to honours and awards should be considered on their merits in accordance with these principles,and these considerations should not be influenced by the possible impact, real or perceived, on veterans’ entitlements.
CIDA expanded on this principle:
Even though the terms of reference for the Committee preclude it from considering issues relating to the Veterans’ Entitlements Act, the Committee remains conscious of the nexus between medals and entitlements in some cases. The Committee considers, however, that entitlement issues are a separate matter for consideration by the Australian Government and its agencies.
Again, in 2010 Lieutenant General D. J. Hurley AC, DSC, advised the inquiry into service at Butterworth, at paragraph 52:
The Governor-General cannot declare an operation or Defence activity to be warlike for the purpose of the Australian Active Service Medal 1945-75 Regulations, or Australian Active Service Medal Regulations, and thus institute a clasp to either award, without the Government first agreeing that the service is or was warlike in nature and the Minister has declared this to be the case under the Veterans’ Entitlements Act 1986.
Both the AASM and ASM (45-75 and post 75) have almost identical regulations. The General’s statement could not be clearer - declarations of warlike and, by extension non-warlike service, can only be declared for the purpose of the VEA, thus entitling holders or those awards to the associated repatriation entitlements.
Compare this to what the Minister said above. CIDA understood that its recommendations regarding category of service may well provide access to entitlements under the VEA if accepted. Recommendations for warlike and non-warlike service in its report, if accepted by Government, would provide more generous repatriation benefits to veterans.
CIDA Recommends the Establishment of the Australian Service Medal 1945-1975
CIDA recommended ‘the establishment of an Australian Service Medal 1945-1975 to recognise service in a prescribed peacekeeping or non-warlike operation for the period 1945-1975 where recognition has not extended previously through an award. (p. iv). Its rationale is provided on page 9. ‘Under the Imperial system, General Service Medals recognised service in minor campaigns and operations which did not warrant the issue of a separate medal.’ The AASM and ASM replaced the General Service Medal 1962. Different operations were shown by clasps attached to the medal ribbon. It was recommended that the ASM 1945-1975 should have similar terms and conditions to the ASM.
It will be seen from the following table that, to all intents and purposes, the two medals are one and the same.
Gazetted 3 April 1995
Gazetted 2 November 1988
From the Letters Patent, signed by Her Majesty and the Prime Minister:
‘WHEREAS it is desirable that there be instituted an Australian medal for the purpose of according recognition to members of the Defence Force, and certain other persons, who rendered service in non-warlike military operations’
From the Letters Patent, signed by Her Majesty and the Prime Minister:
WHEREAS it is desirable that there be instituted an Australian medal for the purpose of according recognition to members of the Defence Force and certain other persons who render service in certain non-warlike military operations’
Regulation 3: ‘The Governor-General, on the recommendation of a Minister, may declare a non-warlike operation in which members of the Defence Force were engaged at any time during the period that commenced on 3 September 1945 and ended on 16 September 1975, to be a declared operation for the purposes of these Regulations.’
Regulation 3: ‘ The Governor-General, on the recommendation of the Minister, may declare a non-warlike operation, in which members or the Defence Force are, or have been on or after 14 February 1975, engaged, to be a prescribed operation for the purposes of these Regulations.’
Regulation 4 (1): ‘The Medal may be awarded to:
(a) a member, or a former member, of the Defence Force; or
(b) a person in a class of persons determined by a Minister for the purposes of these Regulations:’
Regulation 4 (1): ‘ The Medal may be awarded for service in or in connection with a prescribed operation.’
Regulation 4 (3): ‘The Medal may only be awarded to a person who fulfils the conditions for the award of the Medal.’
Regulation 4 (5): ‘The Medal may not be awarded except to a person who fulfils the conditions for the award of the Medal.’
CIDA was tasked to examine claims for recognition of service categories, consider the necessity of new awards to recognise service in warlike and non-warlike operations in the period 1945 - 1975, and make recommendations as appropriate. In so doing it reviewed past service against the terms and conditions applying to the Australian Service and Australian Active Service Medals. The Committee also recommended the creation of an Australian Service Medal 1945-1975 with similar terms and conditions applying to the ASM. In doing so it recognised the nexus between medals and entitlements in some cases.
The VEA defines non-warlike service as ‘a kind determined in writing by the Defence Minister to be non-warlike service.’ A non-warlike service classification entitles a member or former member of the ADF to more generous entitlements than those with peacetime service.
Both ASMs were established to recognise service in ‘non-warlike military operations’. Regulations for both medals require a declaration of a non-warlike operation by the Governor-General on the recommendation of the Minister for Defence. Neither medal can be awarded to a person who does not fulfil the requirement of the regulations.
The award ASM 1945-1975 clearly recognises service in a declared non-warlike service operation that qualifies recipients for more generous entitlements under the VEA. These entitlements are clearly denied many veterans by the Department of Veterans’ affairs, the very body established to Parliament to administer Veterans’ entitlements.
The question is: Why?
CIDA – Report of the Committee of Inquiry into Defence Awards, 1994
Clarke, John, the Honourable, QC (Chairman), January 2003 Report of the Review of Veterans’ Entitlements
Defence Honours and Awards website, at http://www.defence.gov.au/medals/. Provides access to relevant Commonwealth Gazette documents.
Defence Honours and Awards and Commendations Policy Review, 8 February 2008
Senator the Hon. Michael Ronaldson, Minister for Veterans’ Affairs, to the Hon. Paul Fletcher, MP, Federal Member for Bradfield, 7 Sept 2015,Ref:M15/2359
Veterans’ Entitlements Act 1986
Vice Chief of the Defence Force, Lieutenant General D. J. Hurley AC, DSC, Submission for the Defence Honours and Awards Tribunal, Inquiry into the Recognition of Members of Rifle Company Butterworth for Service in Malaysia between 1970 and 1989, 23rd June 2010.