Mr C Pearce MHR
Federal Member for Aston
Unit Seven, 426 Burwood Hwy
Wantirna South VIC 3152

Thursday 15th December 2005

Dear Mr Pearce

I thank you for your letter and enclosure post-dated the 27th of September 2005 regarding the recognition of service by two naval officers, namely Lieutenant E G Kennell RAN and Lieutenant Commander K A Ferguson RANR. Having read and re-read Minister Kelly’s response, I have noted that at page two of her response, her Department has advised her that:

Where a person has rendered operational service by sub-section 6C(1), the period of operational service is extended by sub-section 6C(3) to provide port to port coverage. It is important to note here that service in the operational area must occur for the person to gain the benefits of the port to port provision. This interpretation of the effect of sub-section 6C(3) has been affirmed by the Full Court of the Federal Court of Australia in the case of Spargo v Repatriation Commission (2001) 116 FCR 304.

By referencing Spargo v Repatriation Commission (2001) 116 FCR 304 and having read and re-read the Federal Court transcript, I note the following.

At page one (1) of the transcript it is noted in the preamble that reference is made to: “injury suffered on ship in course of journey to Korea – injured serviceman returned to Australia from Japan”

At page six (6) of the transcript at paragraph seven (7) it is also noted that mention is made of the fact that the circumstances governing the appellant in this case signify that: “He was seriously injured before the vessel arrived in Japan.”

Furthermore at page seven (7) at paragraph 16 it is unambiguously stated that: “It is plain that the purpose or object of s 6C(3) is to extend benefits of the VE Act to service personnel who suffered injury or disease whilst on the way to, or on the way home from, an operational area.”

And at page nine (9) at paragraph 23 it is recorded that: “By itself, the legislative history is indicative of an intention to restrict the extended benefit in cases of injury or disease suffered on the way to, or on the way from, an operational area to persons who have actually rendered service in the operational area.”

Throughout the whole transcript of the case Spargo v Repatriation Commission (2001) 116 FCR 304, being referred to by the Department of Veterans’ Affairs, and the Minister as a valid legal precedent to deny recognition, it is noted with some considerable concern that there is no mention made of death whilst on operational service nor is there mention made of death by misadventure whilst on operational service. It needs to be made patently clear here that both Kennell and Ferguson were not injured, nor did they contract a disease while on operational service, they died while performing operational service.

As a consequence, it is suggested that the case used by the Department as affirmation per se, of sub-section 6C(3) should not be morally or legally applied to Lieutenant Kennell and Lieutenant Commander Ferguson, as this case only relates to injuries or diseases suffered while on operational service, and is therefore of somewhat questionable relevance.

I am also suggesting here that the circumstances governing the deaths of both Kennell and Ferguson while on operational service are unique insofar as there appears to be no directly relevant regulations contained in the Act which covers them fully. Therefore, the Minister in her wisdom may need to treat these two cases with a certain amount of compassion and Ministerial discretion in any future deliberations by her or by her Department on this matter.

It may also be of some relevance that having collapsed and died at 1925 (25 past 7:00 pm) on Monday the 06th of December 1971, the body of Lieutenant Commander Ferguson was subsequently taken ashore upon arrival at the port of Vung Tau Vietnam at 0600 (6:00am) on Wednesday the 08th of December 1971, for return by air to Australia. The remains of Lieutenant Kennell were never found despite many hours of searching.

Also worthy of noting is that, in the opinion of the Full Court of the Federal Court (Judges Spender, Gray & Branson JJ), where they have recorded at page 11, paragraph 25 of the court transcript that:

It is true that the construction of s 6C that restricts its effects to those who have actually carried out service in the operational area is potentially productive of such anomalies. If that is the intended construction, however, and the Parliament intended that such anomalies should arise, the Court cannot construe the VE Act in some other way so as to avoid them.

Mr Pearce, could you please convey my genuine concerns regarding this matter to the Minister at your earliest convenience. I feel, as do many others, that a gross injustice has been done to the memory of these two officers and that their service has gone unrecognised for far too long.

With reference to your letter of the 27th of September at paragraph three (3) you have expressed a “willingness to meet anytime with you on this matter.” I am hopeful of being able to take you up on this offer, as I could do with some sound advice and guidance as how to better pursue this and other aspects of naval service (such as the water contamination issue) during the Vietnam era, on behalf of the Veterans group I represent.

Regards

Dr. John R Carroll PhD EdD MAPsS
Hon. Secretary
HMAS Sydney & VLSV Assoc. (VIC)