Butterworth 1968-1989 and the German Cruiser Emden

Relevant to the claim for warlike service at Butterworth during the 1968-1989 Insurgency War is the following statement of Justice Mohr in his ‘Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 (2000) at page 8:

In essence, Section 7A of the VEA 1986 requires that a veteran must have 'incurred danger from hostile forces of an enemy' before such service becomes 'qualifying service' for the 'service pension'.

The definition of ‘warlike service’ was inserted in Section 7A of the Veterans’ Entitlement Act in 1997, well before Mohr’s review (see Clarke, 13.45).

Justice Clarke, in his 2003 ‘Review of Veterans Entitlements’, was tasked by the Government to ‘consider the historical context and current interpretation of the provisions for qualifying service having regard to relevant parliamentary statements and the position reached by the courts …’ (para. 19, page 6).

It is within this context that he considered the 1945 opinion of Windeyer reflected the statutory test (11.54 – 11.56):

11.55 Windeyer stated that:

The word which creates most difficulty is ‘danger’, and it cannot be considered without regard to the primary phrase 'theatre of war. According to Webster's Dictionary the word 'danger' may connote risk, jeopardy or peril, suggesting various degrees of danger. The benefits or alleviation contemplated ... should be regarded as some reward for a man who, while serving, has been in a situation calling for bravery and self-devotion. If therefore at any time when a man was serving there was a real physical possibility of injury from enemy action and it was reasonable to regard it as possibly imminent at any moment — that, in my opinion, is the situation connoted by the word 'danger'…

I am of the opinion that having proved a risk possible the onus would NOT lie on the claimant to prove that at a particular time the enemy was in a position to inflict injury, so that the risk was in that sense probable. If in a particular area, say the Indian Ocean, it was proved that ' Emden' was destroyed it would not be necessary to show that there were other raiders about. To put it another way, the claimant would not be defeated because knowledge obtained later showed that the enemy has [sic] no more raiders.

I am therefore of the opinion that a claimant is entitled ... if he can prove that he was on service in some place on sea or land where injury from hostile action was conceivable and might reasonably have been regarded as an existing risk, and this is irrespective of proof whether the enemy at that particular time was or was not capable of inflicting injury at that spot.

Windeyer could not have been clearer. Knowing the Emden had been active in the Indian Ocean made it possible other raiders were operating in the region. That possibility exposed those serving the area to the real possibility of ‘injury from enemy action’. Later knowledge could not be used to change the expectation at the time.

This opinion, which Clarke drew on is directly relevant to Butterworth. The communists, as has been and will continue to be demonstrated on this blog, were active throughout the Peninsular. By the end of 1975 they had carried out attacks on military and police installations throughout Western Malaysia. Senior Australian defence officers with responsibility for Butterworth had no reason to believe the Base would be not be targeted by the communists. In fact, the evidence shows real concern that the Base could be targeted at any time and that any action could result in the loss or damage of Australian resources and Australian casualties.

Defence, of course, ignore established precedent, relying on the retrospective argument that no attack occurred, therefore normal peacetime service was rendered.