Ray Fulcher’s appeal was heard on the 26th March 2020 by telephone
We are disappointed DHAAT did not find warlike service yet we are buoyed by their finding that RCB service was NOT peacetime but hazardous.
Read the full text of the Tribunal’s Decision here
The Tribunal decision is appealable in the Federal Court within 28 days of the decision being notified: in our case by the 12th June 2020. An Appeal is limited to a question of Law and does not apply to errors of fact. The Federal Court would decide if the Tribunal has made an error of law in reaching its decision.
The RCB RG has completed a detailed analysis of the decisions, findings and its considerations. We are exploring the grounds for appeal with our legal advisors. The residue of our supporters donated funds will be used for this purpose. Chief among our concerns is the Tribunal’s finding being based on the current criteria for warlike service and not that existing at the time of the deployments (1970-1989).
RCB Service was at least Hazardous
The Tribunal’s finding supports our claim that the RCB service was NOT peacetime service.
We all recall our RCB’s formal claim’s history starting with the 2006 submission (18/8/2006) to Defence Minister Nelson that sought the reclassification of its service from peacetime to warlike and Defence’s decision after assessment by the Nature of Service Review Team, (vide Minister Billson (04/10/2007)) to declare RCB service as hazardous pursuant to Sect 120 of the Veterans Entitlement Act.
In 2009 it was found that the Minister’s decision instruments were never registered by Defence nor promulgated. When this was revealed Defence had NOSB conduct another review that Defence accepted and overturned the 2007 decision thereby reverting RCB to peacetime service.
It was the trigger for us to apply the Defence Department’s grievance process through the DHAAT (2010), House of Representatives Petitions Committee and Hearings (2014), Senator Burston’s representation and Minister Tehan’s internal Defence Review (2017), the Defence Ombudsman (2018) , and finally after 12 years of requests to meet with the Minister and his Defence NOSB advisors receiving that invitation to the infamous “false meeting” with the Minister’s advisors (who attended as observers only and no engagement with us) on 26th November 2018 and on the 27th November 2018 with Minister Chester that was unfortunately interrupted by his call to the House to vote. Since then the Minister has not responded to our correspondence for further engagement.
In this whole process Defence has maintained that RCB service was peacetime and have denied us the right to challenge it through a fair and just process that would allow us to:
- meet with the Minister and his Defence Nature of Service Departmental advisors,
- allow us to challenge the evidence given by other parties at Tribunals and Petition Committees’ Hearings, and
- independent third party mediation.
We have experienced a Government complaints process that did not “…act with due regard for integrity, fairness, accountability, responsibility, and the public interest, as required by the PM’s Ministerial standards” Those Standards identify that Ministers are entrusted with considerable privilege and wide discretionary power. “In recognition that public office is a public trust, therefore, the people of Australia are entitled to expect that, as a matter of principle, Ministers will act with due regard for integrity, fairness, accountability, responsibility, and the public interest, as required by these Standards”.
Given the Tribunal’s findings, we are going to ask Minister Chester to give full effect to upgrading RCB’s service to hazardous but at same time keep our legal and other options open.
Hazardous Service Benefit
In simple terms if RCB service were to be reclassified to hazardous service it would mean a more generous “reasonable hypothesis “test and “beyond reasonable doubt “standard of proof being applied when lodging a claim for a defence caused injury, disease or death.
There would be no change to VEA entitlements or medals, however, it would elevate the importance of that service to a recognised higher degree of military risk.
Its been 50 years since the first RCB’s deployment, 31 years since the end of our security/protection/defence role and 14 years since our first formal submission to challenge the Government’s classification of our service as peacetime. On that journey we have both searched for and found the truth to support our claim for warlike service and sought to challenge the Government’s decision through a process that we have found to be unjust.
“THANK YOU to all our supporters whose determination has been inspirational.“
RCB Service 1979
Chairman RCB Review Group
Date: 22 May 2020