Recognition Of RCB

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RCB Update 2/2020 – DHAAT Decision Denies Warlike Service Appeal

RCB Update 2/2020 – DHAAT Decision Denies Warlike Service Appeal

Ray’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

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Tribunal’s Decision

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.



The Process

Process

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.“

Ray Fulcher
RCB Service 1979
Chairman RCB Review Group
Date: 22 May 2020 

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RCB Recognition – Ray Fulcher’s Appeal to DHAAT – Today’s Hearing

RCB Recognition – Ray Fulcher’s Appeal to DHAAT – Today’s Hearing

Ray’s appeal to the Tribunal was heard today 26th March 2020 by telephone. Following the hearing Ray reported on the RCB facebook site: ” Hi all. Ken (Ken Marsh RAAF) and I are very happy with how the hearing went this morning. Both because of the questions and comments from the Tribunal and their demeanour towards us. Although we can’t reveal the detail of the hearing we can say that some of the Tribunal’s comments were directly opposed to what has been the Defence position on a number of issues. There were two reps from Defence, one from honours and awards and the other from nature of service. Neither had much to say beyond they thought it was all peacetime service. The Tribunal advised that it is normally a few weeks before their final report comes out but, given the current circumstances, it may be a bit longer. RCBRG will keep everyone informed.

Here is his Ray Fulcher’s opening statement.

“I have provided the Tribunal with a comprehensive and compelling case for the upgrade of RCB service between 1970 and 1989 to warlike.

I have supported my case with over 350 primary and secondary documents, including over 130 SECRET and TOP SECRET documents.

I have set out the law as it pertains to RCB service, following Federal Court precedent and the principles set down by Justices Clarke and Mohr.

Both Justices examined the notion of incurred danger, or being exposed to the risk of harm, as a condition of ‘qualifying service’ that has been the basis of legislation and policy since 1914.

Both Justices supported the historical and legal approach to this notion in finding that the relevant danger need not be imminent nor even realised before meeting the legislative and policy threshold.

It has been this understanding of the incurred danger test that Defence have got so abysmally wrong over the past 14 years.

But this is not the only area in which Defence have erred in relation to RCB service.

The evidence on the warlike nature of RCB service has been available in the archives for decades for anyone with access, rudimentary research skills, an unbiased mind, and basic understanding of repatriation law to see.

Instead, for over a decade, those in Defence responsible for reviewing past service have tied themselves in ever more feeble and ridiculous knots to deny RCB veterans the simple recognition of their service according to law.

Every excuse Defence have manufactured in those years as a reason to deny RCB service has been embarrassed by the readily available evidence. I say embarrassed because on presentation of evidence refuting Defence’s excuses it has unfailingly refused to discuss the matter further.

I will give three frustrating examples.

  1. Defence has claimed that the presence of service families at Butterworth proved that RCB service was peacetime because “Had it been warlike, Australia would not have put families or other innocent civilians in such danger…”.[1] Defence were provided with Australian newspaper articles[2], Defence Committee minutes[3], and the 2 RAR  ‘points system’[4], all showing that ADF families were present during the First Emergency and why. Defence’s response? Silence.
  2. Defence has claimed that life at the base and in the surrounding areas went on as normal during the period, with free movement and no curfews or other restrictions.[5] It was provided with evidenced from the Straits Times and JIO intelligence reports that described curfews, house to house searches and social disjunction similar to the First Emergency and requiring similar responses.[6] Defence’s response? Silence.
  3. Defence claim that there was no state of war or emergency in Malaysia following the end of the Indonesian Confrontation. The Malaysians seem to think otherwise and Defence were provided with a link to the Malaysian Government Archives which describe the extent and severity of the armed conflict.[7] Defence were provided with reference to books written by Malaysia’s armed forces and with academic papers describing the war and emergency.[8] Defence received Ordinance No. 1 of 1969 which was the Emergency Declaration used throughout the period.[9] Numerous Australian intelligence reports detailing Malaysian armed forces operations against the communists, including fighter and bomber sorties from Butterworth, were given to Defence. In May 2019 Defence finally admitted that there was an emergency declared in 1969 but claimed that “there was no use of emergency powers in relation to communist terrorists or insurgents”. Defence were provided with the regulations promulgated under Ordinance 1 of 1969 that established special courts for communists and required those 18-55 to form “home guards” to defend their villages against communists.[10] Defence’s response? Silence.

We now have the spectacle of the VCDF confirming on the one hand that there was a threat “from hostile forces to Australian forces” at Butterworth but that Australian forces “did not incur danger from hostile forces” on the other.[11]

The problem with this however is that “threat” and “danger” are synonyms, they are interchangeable, having one and the same meaning. It is the same as saying that there was a danger to Australian forces from hostile forces but there was no danger to Australian forces from hostile forces.

The Defence position is a nonsense. Having acknowledged the threat to ADF personnel from hostile forces the only lawful avenue open is to apply the incurred danger test and confirm the warlike status of the deployment.

The incurred danger test is an objective legal test that can be applied to determine the nature of service for ADF personnel in a fair and consistent manner.

It has stood the test for over 100 years. But Defence has transformed it into a subjective assessment. That assessment relies, not on objective law and established fact, but on the current opinion of assessors as to whether the danger incurred was “significant” or “sufficient” enough to satisfy the assessors’ idea of what is worthy of warlike recognition. This approach is unjust, unfair and unlawful. It is the objective test, not subjective opinion, that must be applied.

To quote DHAAT in the case of Ubon, it is “The factual circumstances that existed in their totality and not just as appears on official documents” that must be considered.

That is why I ask the Tribunal to look at the totality of the evidence, recognise the objective danger described repeatedly in the evidence and apply the incurred danger test.

I then ask you to use your power to recommend to the Minister an upgrade of RCB service to warlike so that this injustice may finally be rectified.

[1] Miller, A., Assistant Advisor, Letter to Mr Robert Cross, Welfare Officer 8/9 RAR Association on behalf of Minister Assisting the Minister for Defence, 5 September 2001.

[2] The Age, 14 October 1955. FIRST WIVES to join their soldier husbands in Malaya

[3] Notes from Defence Preparations Committee, A816 52/301/328, National Archives of Australia. “a valuable effect on morale, not only of the married members, but of the force as a whole”

[4] 2 RAR, Routine Orders, 18 November 1955, AWM95 – AACD, AWM.

[5] For instance see: Department of Defence, 2011 Nature of Service Branch Review of ADF Service at Butterworth 1970-1989, 14 October 2011; Griggs, R.J., Vice Chief of the Defence Force, Letter to RCB veterans, April 2018

[6] JIO, JIO Briefing for Assistant Services Adviser, 8 November 1971. Malaysians were asked if they “…were experiencing the same problems with squatters that existed during the First Emergency.” The Malaysians responded that “…the problem did exist and that every endeavour was being made to relocate the squatters.”

[7] “This second armed rebellion forced a second state of Emergency in Malaysia from 1968 to 1978”. … “The guerrilla warfare triggered by CPM [Communist Party of Malaya] dragged on for 21 years.”

[8] Malaysian Army’s battle against communist insurgency in Peninsula Malaysia, 1968-1989.

[9] Ordinance No. 1 of 1969, Emergency (Essential Powers) Ordinance.

[10] Essential (Security Cases) Regulations 1975 and Essential (Community Self Reliance) Regulations 1975

[11] VCDF letter to Ken Marsh. “no identified threat above low level from hostile forces to Australian forces”

“cannot be classified as equivalent to the extant warlike service classification as members did not incur danger from hostile forces”.

RELATED ARTICLE – RCB Recognition – Ray Fulcher’s personal Appeal to DHAAT

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The Australian – Malaya vets campaign on ‘war service’

The Australian – Malaya vets campaign on ‘war service’

The 9,000 men of Rifle Company Butterworth (RCB) are fighting to have their deployment and its risks recognised as warlike service.

EXCLUSIVE – PAUL MALEY 28th February 2020

‘We were put into harm’s way’: Ray Fulcher served in the Second Malayan Emergency

‘We were put into harm’s way’: Ray Fulcher served in the Second Malayan Emergency

The year is 1972 and Gough Whitlam is fulfilling an election pledge to bring home Australian troops from Vietnam, formally ending years of armed conflict with communist insurgents across Southeast Asia.

In northern Malaysia at the Butterworth Air Base, a small contingent of Australian servicemen still carry live rounds and patrol for communist guerillas they occasionally spy peering from jungles nearby.

“There was a Rifle Company Butterworth patrol that encountered a group of communist terrorists,’’ Ray Fulcher, chairman of the RCB review group, tells The Australian. “They went to ground but there was no shots fired.’’

Nearly 50 years on and the men of Rifle Company Butterworth are fighting to have their deployment and its risks recognised as a warlike service.

It has been a long, friendless fight. Official reviews have declined to upgrade their service, a move that would entitle them to a richer array of veterans’ benefits, including a much-prized Gold Card entitling them to a range of public and private healthcare services. It would also clear the way for RCB veterans to get the Australian Active Service Medal, the badge of honour bestowed upon all Australian personnel who served in “warlike’’ theatres.

Now they are passing the hat around to fund a Federal Court challenge they hope will see their status formally changed. To Mr Fulcher, as well as to other members of the RCB veterans’ community, it is a question of fairness.

“We were put into harm’s way to counter a threat in Malaysia and support them in their operations against communist terrorists,’’ Mr Fulcher said.

“They cannot renege now on their responsibilities, which is what they’re trying to do.’’

In nearly 20 years of service, RCB members never fired a shot in anger or had one fired at them. They suffered no combat casualties. The RAAF base they were sent to guard was never attacked. The base itself was a hangover from World War II.

So it is not hard to see why the Australian Defence Force has consistently refused to recognise deployment to Butterworth as warlike.

Yet the official designation of peacetime service doesn’t quite fit either. Soldiers on training deployments — notionally the reason the RCB was sent to Malaya — don’t pack live rounds. Nor was any training done.

“The government’s big thing is that we were training with the Malaysians,’’ Mr Fulcher said. “There were one or two who did, but that was later.

“There was no way we could train with the Malaysians — they were busy with their war.’’ That “war’’ was the decades-long conflict waged between the officially recognised government of Malaysia and the Malaysian Communist Party.

It was a simmering insurgency identical in type, if not in scale, to conflicts fought in Vietnam, Laos and Cambodia. Fifteen Australians died fighting in the First Malayan Emergency and 24 more were killed on active service.

By 1968, the communists had regrouped and launched a fresh offensive. The base at Butterworth, which had been transferred by the British to Australia in 1957, became a strategic outpost, a means by which Australia could project force into an increasingly unstable region.

Butterworth was the only airbase outside Australia where the RAAF maintained a permanent offensive presence.

Even now, Australian troops still rotate regularly through it. During the takeover by Islamic State of Marawi in the southern Philippines, the RAAF used Butterworth to send P-3 Orion spy planes to surveil the group.

In 2018, the government announced it would upgrade Butterworth to accommodate the new fleet of F-35 fighter planes.

During the 1960s, it served as a deterrent and a backstop to the Malaysian government. For this reason, Mr Fulcher thinks the 9000-odd servicemen who rotated through Butterworth from 1970-89 deserve recognition: “If the government sends people into harm’s way, that’s warlike service. If you send them somewhere where there’s a possibility they’ll be shot at, you owe them.’’

Mr Fulcher was there in 1979 when it was a fully fledged operating base, and a staging post for air combat missions flown by Malaysians against the communists.

RCBRG Comment

We thank Paul Maley for his article. In preparing the article we supplied relevant data months ago and he spoke with three of our Group separately in telephone conversations two days before its publication. We highlighted the two dominant issues that we were contesting:
Firstly, that the decision that RCB service was peacetime service similar to garrison duty in Australia and that the criteria for warlike service was met namely: a specific military objective; a specific area of operations; an enemy threat existed; there was an expectation of casualties; live ammunition was carried and that there were lethal rules of engagement.

Secondly, that the Government’s due process in handling our grievance was not applied in a fair manner. 14 years of effort by the RCB Group to exercise its right to the truth and its right to challenge the decision have been met with a Government process that is blatantly unfair.

The article fails to consider the strategic context of security threats from communist expansion (The Domino Theory) in SEA and our strategic Alliance under the Five Power Defence Arrangement with the vital role that the RAAF, deployed at Air Base Butterworth (ABB), had in providing a deterrent to further Communist aggression in South East Asia beyond the 1960s he writes of “During the 1960s, it served as a deterrent and a backstop to the Malaysian government.” Our Alliance continued through the Malaysian Emergency War 1968 -1989 and still exists today.

It does not report that the genesis of the RCB deployment was the outbreak of Malaysia’s Insurgency War in 1968 against a resurgent communist terrorists and the Australian Government’s decision Defence Committee Minute (Secret) 2/73 to protect the RAAF Assets at ABB against the threat. In that Minute it records: “This (deployment) could be presented publicly as being for training purposes”. Herewith is the deception of the true RCB’s warlike service that meets the criteria.

The article does not report our request for an independent of government judicial enquiry.

However a positive from Paul Marley’s article is that it does expose the matter to the Australian people. Our challenge is to build on that entry with our own troops and supporters in direct action campaign in the field.

It is a pity that Paul did not check his “facts” with us before publishing.