Opinion No. 1045
REPATRIATION: DEFENCE FORCES
ELIGIBILITY FOR PENSIONS AND BENEFITS OF PERSONS WHO ENLISTED AFTER ARMISTICE WITH GERMANY: MEANING OF DURING THE PRESENT WAR'
AUSTRALIAN SOLDIERS' REPATRIATION ACT 1920, ss. 22, 23 (a), (b). 46 (2)
24 February 1921
The Chairman, Repatriation Commission
The chairman of the Repatriation Comission has forwarded for advice the following memorandum:
The question has arisen as to the eligibility for benefits under the Australian Soldiers' Repatriation Act 1920, of a man who enlisted subsequent to the signing of the Armistice for service outside the Commonwealth.
A case in point is that of a man who enlisted in 1918, and was in Liverpool Camp at date of Armistice. After demobilisation he re-enlisted in the Australian Naval and Military Expeditionary Forces and was sent to Rabaul where he contracted malaria. He was an inmate of various hospitals in New South Wales, was finally discharged on 10 July 1920, and is now an inmate of an asylum, suffering from hallucinations.
Under section 22 of the Australian Soldiers' Repatriation Act 1920 a member of the Forces means a person who, during the present war was enlisted or appointed for or employed on active service outside Australia.
The matter in doubt is as to what period is covered by the words 'during the present war' in section 22.
Then there are the cases of persons who enlisted in 1919 for service at Rabaul, or for home service who have since contracted malaria etc., or met with accidents, and members of the Navy who attested either before or after the Armistice and who may at any time during the period for which appointed meet with accident or illness which can have no connection with the war.
I shall be glad to have your opinion as to the meaning of the words 'during the present war' and especially as applying to:
- Persons who enlisted subsequent to the Armistice for service in Rabaul and who met with accident or illness either there or in Australia without leaving here. (The Secretary for Defence states that circumstances still necessitate the enlistment of members for such service.)
- Persons who enlisted in 1919 for home service and who have since contracted some illness or met with accidents.
- Members of the Navy who attested 'during the present war' (either before or after the Armistice) and who may at any time during the period of appointment (even years after the signing of peace) meet with accident or illness which can have no connection with the war.
If in your opinion the above are not precluded by section 22 from eligibility for pension or other benefits on account of any disability arising from any occurrence happening after, say, the signing of peace, I should be glad of advice as to what steps are considered necessary to preclude such persons from benefits, and, in connection with war pensions, to place their cases under the control of the compensation provisions of the Defence and Naval Defence Acts to which they apparently properly belong.
'During the present war' as used in sections 22 and 46 (2) of the Australian Soldiers' Repatriation Act 1920 means, in my opinion, during the war between the United Kingdom and Austria-Hungary, Bulgaria and Turkey. It does not, I think, include the war with Germany as peace was concluded with that country on 10 January 1920, and the Australian Soldiers' Repatriation Act 1920 did not commence until 1 July 1920.
Peace has now been concluded with Austria and Bulgaria but until peace is concluded with Hungary and Turkey any person who is enlisted or appointed for active service outside Australia (e.g. in late German New Guinea) or serves on a ship of war or is enlisted or appointed for service in connection with naval or military preparations or operations, is, in my opinion, so enlisted or appointed 'during the present war' and is, therefore, a member of the Forces within the meaning of section 22 or an Australian soldier within the meaning of section 46 (2), or both, as the case may be.
Thus as regards the classes of persons mentioned in the sixth paragraph of the Chairman's memorandum-
- those mentioned in sub-paragraphs (a) and (c) would be deemed to be both members of the Forces and Australian soldiers; and
- those mentioned in sub-paragraph (b) would be deemed to be members of the Forces.
Those persons mentioned in sub-paragraphs (a) and (c) would, I think, be eligible for benefits, other than pensions, under the Act. Pensions would, however, in my opinion, only be payable in respect of the death or incapacity of such persons which resulted from occurrences happening while they were serving 'during the present war' (see section 23 (a) of Act). Thus where a person engaged 'during the present war' for service in the Navy and continued to serve after the war, pensions would not, in my opinion, be payable under the Act in respect of his death or incapacity resulting from occurrences happening during the period of service after the war.
As regards those persons mentioned in sub-paragrah (b) of the sixth paragraph of the Chairman's memorandum pensions would, in my opinion, be payable in respect of their death or incapacity resulting from their employment, whether during or after the war, in connection with naval or military preparations or operations.
Those persons who are eligible for benefits, other than pensions under the Act, can, I think, be precluded, by regulation, from receiving such benefits.
If, however, it is desired to restrict the pension rights of persons who would otherwise be entitled thereto under the Act an amendment of the Act appears to be necessary.
As I have stated the only cases in which pensions appear to be payable in respect of death or incapacity resulting from circumstances arising after the war are those of persons enlisted or appointed for home service.
In order to restrict the payment of pensions to cases where the death or incapacity results from circumstances occurring during the war, I would suggest that the Act be amended by inserting in paragraph (b) of section 23, after the word 'employment', the words 'during the present war'.
[Vol. 17, p. 245]