Mr. C Pearce

Federal Member for Aston
Unit Seven – 426 Burwood Highway
Wantirna South VIC 3152

Saturday 02nd of July 2005

Recognition of Service – Lieutenant E G Kennell RAN and
Lieutenant Commander K A Ferguson RANR
Vietnam War Period 1965-1972

Your Ref: CJP/mjcarroll090205:

Dear Mr Pearce

Having read and then re-read the undated correspondence by the Minister for Veterans’ Affairs in response to your representations on behalf of the two deceased Navy Veterans mentioned above, (received by your electoral office on the 07th of February 2005), I can only conclude from my reading of The Veterans’ Entitlements Act 1986 (VEA), that the Minister has been poorly advised by her Department when one takes the time to consider the following aspects of this unfortunate situation, and then to take them into account as a logical whole.

Firstly, the Minister has correctly stated that ‘the person must be allotted to the operational area of Vietnam,’ [Section 6C(1)] refers. Then, that ‘the person must have served in that operational area.’ [Section 7A(iii)] refers. What the Department and the Minister has not then questioned, is why is it that these two officers, having been allotted for duty in Vietnam, then never undertook this duty in the operational area?

The Minister, to her credit, has asserted quite strongly that: ‘There is no dispute that both LEUT Kennell and LCDR Ferguson were allotted for duty in Vietnam. In this they satisfy one criterion.’ She then qualifies this by placing undue emphasis on Section 7A(iii) of the VEA when she further states that: ‘However, by virtue of their untimely deaths, en-route to Vietnam but prior to reaching the defined Vietnam operational area as set out in Schedule 2 of the VEA, they were denied the opportunity to serve in the operational area.’

However, following on from this, the Minister’s Department has apparently neglected to consult the Act (VEA) further to enable them to cite and appraise Section Eight (8). This is the section which deals with various aspects of veterans’ entitlements due to war-caused death. The section is titled ‘War-caused death’ and the relevant sub-sections read thus:

“8 War-caused death

(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war caused if:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the death of a veteran arose out of, or was attributable to, any   eligible war service rendered by the veteran;  

(c) the death of a veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;”  

It is my understanding that, by having been allotted for service, and while in transit to the defined operational area of Vietnam, this then constitutes operational service. As a consequence, it is felt that both Lieutenant Kennell and Lieutenant Commander Ferguson qualify for recognition under the Act (VEA), and have always been eligible persons under this Act, due to the relevant parts of Section 8 quoted verbatim above.

Should this not be seen as the correct assertion, would the Minister, in consultation with her Department, please explain why and for what further reasons these two deceased officers cannot now be recognised as Veterans and be afforded the simple recognition of being appended to the Nominal Roll of Vietnam Veterans?

Please convey to the Minister for Veterans’ Affairs my genuine concerns regarding this matter. I await both her and your responses with much interest.

Regards

Dr. John R Carroll PhD EdD MAPsS
A/Hon. Secretary
HMAS Sydney & VLSV Association (inc. VIC)