Tribunal defines ‘war and peace’ for Australian Defence Force, opens benefits for veterans

A landmark ruling has paved the way for former ADF personnel to get paid entitlements nearly 30 years on from when they served. But war vets say there’s more questions than answers.

Defence has lost a 30-year battle to declare ADF deployments to Malaysia during a terrorist insurgency as a routine training exercise in an administrative “oversight” that has robbed 9000 veterans of entitlements.

The Defence Honours and Awards Appeals Tribunal (DHAAT) landmark ruling now defines “war” and “peace” and a category in between, that will have significant ramifications for all future deployments for the Australian Defence Force (ADF).

It also demanded the statutory failings by Defence be immediately rectified and veterans’ entitlements flow.

RAAF armourers loading 1000 pound bombs into Lincoln aircraft at RAAF Air Base, Butterworth, Penang. Leading Aircraftman John Kemp of Floreat Park, Perth, and Leading Aircraftman David Hislop, of Lenah Valley, Hobart, Aug 1957. Picture: RAAF

The Tribunal was tasked by the government in 2022 to look into the deployment of the Army’s Rifle Company Butterworth (RCB) to Air Base Butterworth between 1970 and 1989 during a Malay emergency brought on by a communist and terrorist insurgency.

Some of the hundreds of pages of "Secret" files related to Butterworth released under Freedom of Information. Picture: Charles Miranda

Defence had consistently since that time declared it a training exercise before a trove of declassified military and intelligence documents clearly showed it was not, with maps and other memos warning of likely directions of attack on RAAF assets.

But ironically like most wars, there was no clear winner with the exhaustive 18-month Tribunal inquiry ruling it neither war nor peace, but in between in a category called “non warlike”. The ruling means 9000 mostly army veterans who had been deployed to Malaysia to protect the RAAF crews stationed in Butterworth in those years, will now be entitled to more benefits under the Veterans Entitlement Act.

The extent of those entitlements and whether they will be retrospective and to be passed onto widows of those men since passed, is not clear.

Army's Rifle Company Butterworth section going out on patrol with live ammunition at Butterworth Airbase. Picture: Supplied

The Tribunal found in September 2007 the then Veterans Affairs Minister Bruce Billson sought to clarify the deployment and declare it “non war-like service” but the instrument was not registered by Defence on the Federal Register of Legislation and thus never came into force.

Because of this oversight, RCB personnel had only ever been entitled to baseline entitlements as veterans. The tribunal has made 10 recommendations that, if accepted by the federal government, be immediately changed.

Retired Lieutenant Colonel Graeme Mickelberg who was instrumental in pursuing justice for himself and his colleagues said the overall findings were “win-lose”, in that many veterans believed it was war-like.

The Defence Honours Awards Appeals Tribunal’s chair Mr Stephen Skehill and panel members Rear Admiral Allan Du Toit AM RAN (Retd) and Air Commodore Anthony Grady AM (Retd) hearing into the Australian Army’s Rifle Company Butterworth, November 23, 2022. Picture: Charles Miranda

“It is not clear what this means for the veterans and importantly the widows of those who have passed since the 2007 Billson decision,” he said.

“What is damning here and the tribunal chair picked up on this day one, it was a hazardous deployment and now it is non-warlike in the context of the Veterans Entitlement Act and therefore benefits should flow. My question is if today’s Veterans Affairs Minister Matt Keogh accepts these recommendations what does that mean for those disadvantaged retrospectively? Will widows whose husbands should have been eligible for benefits at that time now be awarded, for example, a disability pension?”

He said this highlighted how successive governments and Defence had not paid due regard to veterans and their families.

In his 72-page July 2022 submission to the Tribunal, ADF chief Angus Campbell said Defence and successive Australian Governments had consistently and appropriately classified the mission as peacetime service and that should not change.

The Tribunal however was critical of that view which it called “factually incorrect” given the overwhelming evidence otherwise, notably a 1993 Cabinet definition of war and the Billson ruling which has now been deemed as still legally valid despite Defence administratively losing it since 2007.

“It seemed to the Tribunal that, colloquially speaking, Defence had been ‘making it up as it goes’,” the Tribunal concluded noting it was Defence’s statutory duty to see the Billson changes go through and it did not do that.

Veterans of the Rifle Company Butterworth (RCB) Craig Leonard, David Williams, Dave McCarron, Rodney Pearce, Ray Fulcher, Dieter Dattinger, Lionel Fitzsimmons, Bob Taylor and Glen Rowe. Picture: Evan Morgan

Rifle Company Butterworth veteran Ray Fulcher, who is based in Townsville, said the Tribunal’s findings failed the pub test but at the very least Veterans’ Minister Matt Keogh needed to sign off potential entitlements for veterans.

Mr Fulcher said it was not clear what extra entitlements could be received but if someone was injured at the time, the findings would reverse the onus of proof where the department would now have to prove beyond reasonable doubt the circumstances around any injury for them to knock it back.

He said it was not known how many of the 9000 veterans were still living and the figure could be as low as 2000 but Mr Keogh should not stall and wait for others to pass.

“Generally speaking though, the tribunal report fails the pub test,” he said.

“It acknowledges there was a war but somehow you can send troops into a war zone, get them to defend the main operating base of one of those parties at war and you don’t expect casualties - it doesn’t pan out.

“The one good thing about it, the tribunal has basically said Defence doesn’t know the rules and regulations governing overseas service which is a bit scary when they are the ones that have to recommend to ministers what sort of service they get and dont know regulations governing that.”

The finding last week may have well opened a can of worms.

Veterans from other ADF overseas deployments including Africa and even Mururoa atoll where French did nuclear testing in the early 1970s, now coming forward demanding clarification on their exposure danger levels.

“That is what Defence was worried about all along, opening this can of worms and why they said it was all just ‘training’,” Mr Fulcher said.

Originally published as Tribunal defines ‘war and peace’ for Australian Defence Force, opens benefits for veterans