Rifle Company Butterworth Review Group
Rifle Company Butterworth Review Group
Rejoinder to the Department of Defence Submission
to the DHAAT Inquiry into RCB Service
“To establish whether or not an ‘objective danger’ existed at any given time, it
is necessary to examine the facts as they existed at the time the danger was
faced. Sometimes this will be a relatively simple question of fact. For
example, where an armed enemy will be clearly proved to have been present.”
MAJGEN Mohr, REVIEW OF SERVICE ENTITLEMENT ANOMALIES IN RESPECT OF
SOUTH-EAST ASIAN SERVICE 1955-75, February 2000, p. 9.
1.The purpose of this paper is not to address every point of the Defence submission as
almost all of it has been addressed in the RCBRG submission. This paper will be
limited to matters raised by Defence that were not addressed in the RCBRG
submission, were incomplete, inaccurate, or were unreasonably omitted.
2.Why did Minister Gee call this inquiry rather than referring the request of RCB
veterans back to the Department of Defence (Defence) as has been the norm in the
3.Following the announcement of the findings of the New Zealand (NZ) review RCBRG
representatives attended a meeting with Minister Gee. The meeting was arranged by
the Hon. Andrew Wallace MP who had been the Chair of the Coalition Defence and
Veterans’ Affairs Committee. Mr Wallace attended the meeting. Prior to the meeting
the RCBRG provided the Minister with a brief, which addressed the implications of
the NZ review.
4.At the start of the meeting Mr Wallace said the outcome of the NZ review was an
opportunity to review RCB service. During the meeting the Minister said he was
considering referring the question of RCB service to Defence. Mr Wallace expressed
the opinion that bureaucrats were often reluctant to change long held positions.
5.The Minister then asked Mr Wallace how he thought the matter could be progressed.
Mr Wallace explained that in his opinion there were two options:
∙The Minister could order an independent inquiry.
6.That the Defence submission dismisses the relevance of the NZ review confirms the
entrenched position taken by Defence over the past twenty years in relation to its
opposition to reclassifying RCB service.
7.A previous Tribunal view of Defence’s intransigence towards the reclassification of
RCB service observed:
“The Tribunal acknowledges that the publicly enunciated purpose ‘of providing
an opportunity for further training and developing cooperation with the
Malaysian forces and the elements of the RAAF at Butterworth’ which was a
convenient label for both the Australian and the Malaysian governments of
the day may have created confusion as to the status of the company in later
years, even within the Department of Defence itself.”1
8.Defence has claimed in its submission that:
“The practical effect of the New Zealand Reassessment is to align New
Zealand with Australia in respect of medallic recognition of similar service in
the period to 1 January 1974“.2
9.Although the NZ report makes reference to various reviews of RCB service the report
does not mention or recommend that New Zealand medallic recognition should align
with Australia. On the contrary the NZ report is clear on the differences between the
Australian and New Zealand awards and the fact that they cannot be “aligned”:
“Veterans regularly cite the differences between Australian and New Zealand
medallic recognition as justification for an award. Australia uses the Australian
Service Medal (1945-75) and the Australian Service Medal (1975-2012) to
recognise all non-warlike service in South East Asia. The two Australian
Service Medals contain components of the New Zealand General Service
Medal, the New Zealand Operational Service Medal and the New Zealand
Special Service Medal, but also include service that is unlikely to be
recognised by New Zealand such as nation building in Papua New Guinea
10.The real “practical effect” of the NZ review is to provide recognition previously denied
to NZ veterans by re-evaluating their service and having the moral courage to
acknowledge that, in the light of overwhelming evidence, NZ had previously got it
1 Fulcher and the Department of Defence  DHAAT 08 (14 May 2020), para 39.
2 Department of Defence, Inquiry into medallic recognition for service with Rifle Company Butterworth,
Department of Defence Submission, July 2022, page 2 para 2 of un-numbered paragraphs.
3 NZDF, Reassessment of the Recommendations of The Medallic Recognition Joint Working Group on New
Zealand Military Service in South East Asia 1955 to 1989, March 2021, para 55.
Defence has not included in its submission. There are two glaring omissions. The
first is the incurred danger test which even Defence has previously stated was
important to the consideration of RCB service:
“The notion of incurred danger, as a basis for granting access to veterans’
entitlements, warrants close examination as it underpins the criteria which
applied at the time the RCB was deployed in Butterworth.”4
12.The second is a failure to discuss the principles enunciated by Clarke and Mohr in
their reports rather than simply regurgitating the findings of those reports. It is
submitted that applying the principles of Clarke and Mohr to the abundant evidence
on RCB service would yield a very different outcome to the one championed by
13.Both these issues are extensively covered in the RCBRG submission already
submitted to the Tribunal.
14.Glaringly absent from the Defence submission is any discussion or analysis of the
voluminous primary and secondary evidence that is available and has been provided
to the Tribunal. Defence merely implies that it has done a lot of research by listing
various categories of sources, such as the National Archives, that it has
15.At para 1.4 and para 3.30 Defence repeats its insistence that the listed historical
reviews are determinative of RCB service. Although Defence has repeated this
argument and cited this list before, there is one notable difference. That difference is
that Defence has removed from the list one review that they held just as reliable as
those now listed in determining RCB service. That review was the NZ Government’s
Medallic Recognition Joint Working Group (MRJWG) on service in South-East Asia
1950-2011 published in 2013. That review was overturned by the current NZ review
when the “…reassessment found that the MRJWG final report was missing some
potentially critical information which may have reshaped some of its conclusions.”5
The “potentially critical information” is later indicated to be material from Australian
archives that demonstrated that service at Butterworth was far from peacetime. This
material was provided to the NZ veterans by the RCBRG. Australia’s Department of
Defence had input into the 2013 NZ review and should have provided the “critical
information” to NZ at that time. Whether it was withheld intentionally or in good faith it
raises either the question of the integrity of Defence in relation to RCB or, on the
other hand, puts a cloud over Defence’s claim to have exhaustively researched the
RCB nature of service.
16.Regardless, rather than review its own reliance on the 2013 NZ review and consider
4 Gillespie, RJ, VCDF, REQUEST FOR NATURE OF SERVICE REVIEW OF RIFLE COMPANY
BUTTERWORTH (RCB) 1970 TO 1989, 28 August 2007, Ref B660823, Attachment A, para 19.
5 NZDF, Reassessment of the Recommendations of The Medallic Recognition Joint Working Group
on New Zealand Military Service in South East Asia 1955 to 1989, March 2021, para 4.
what the “potentially critical information” that led to it being overturned means for its
own veterans Defence simply removes the now compromised 2013 NZ review from
Defence’s “previous reviews” cant
17.This section will examine the reviews listed by Defence at paras 1.4 and 3.30 and
demonstrate why they cannot be relied on as the determinative word on RCB
service. NZ has taken the appropriate response to its own “previous reviews”. Rather
than seeing them as holy writ NZ have re-examined them in light of “potentially
critical information” and as is known have overturned the “previous review” as
deficient, rather than clutching to it to defend a clearly untenable position.
18.The CIDA inquiry says very little about service at Butterworth, but what it does say
indicates that it did not have access to the abundant evidence of the armed enemy
threat posed by the Communist Terrorists to Butterworth now available. Concluding
its two paragraphs on South-East Asia, including Butterworth, the Committee says
“…therefore in terms of its Principle number 1, it does not recommend that this
service be recognised through a medal”.6 Principle 1 says, in part, that “Recognition
of service by medals … should only occur when that service has been rendered
beyond the normal requirements of peacetime. Normal duties such as training and
garrison duties should not be recognised…”. The Committee does not define what it
means by “garrison duties” but the explanatory text following Principle 1 says medals
should be “…reserved for those who have done something special”, a fairly vague
concept. Principle 1 also says that medals should be reserved for “…military activities
clearly and markedly more demanding than normal peacetime service”.
19.Significantly, the review of RCB service in 2001 that awarded non-warlike service for
February 1975 to December 1989 to RCB did not find Principle 1 a barrier to an
award for RCB service. One of the recommendations of the review was that:
“In view of the conditions that existed in Singapore and Malaysia after the
Indonesian Confrontation on 11 Aug 66 and until the end of FESR on 31 Oct
71, it is considered that duties in Butterworth are equally deserving of an
award due to the terrorist threat which existed and the purpose of regional
security. This is in keeping with CIDA principles.”7
20.That is, a later review with more evidence found that the CIDA principles favoured
6 Gration, P, General, et al, Report of the Committee of Inquiry into Defence Awards, 1993, p. 45.
7 Australian Defence Headquarters, Recommendations of the Review of Service Entitlement in Respect of the
Royal Australian Air Force and Army Rifle Company Butterworth Service 1971-1989, PE 2000-34836 Pt 1, dot
21.The Mohr review did not examine service at Butterworth beyond 1971 whereas the
period of claim for RCB service begins in 1970 and ends in 1989. The Tribunal is
referred to Defence Department Minute ref 2000-34836 Pt 1 where Air Commodore
R.K. McLennan advised in relation to the Mohr review that “Consequently, service at
Butterworth between 1971 and 1989 was not considered”.8 This limit to Mohr’s
investigation was confirmed by Defence in 2001 when it wrote that:
“However, the review only made recommendations in respect of service up to
and including 30 October 1971, the end date of the Commonwealth Far East
Strategic Reserve (FESR) in South-East Asia.”9
22.Mohr’s comments on Butterworth are found in Chapter 3, Far East Strategic Reserve
– Malayan Emergency which ceased operations on 31 October 1971. On RAAF
service at Butterworth Mohr said:
“One of the specific areas of ADF service the Review was asked to advise on
was service at … Butterworth. I have found it difficult to comment in such
specific terms as such service ranged over almost all of the period covered by
the Review and in particular two major conflicts, the Malayan Emergency and
the Indonesian Confrontation.”10
“Most, if not all, of the submissions received from personnel stationed at …
Butterworth concerned either their involvement in operations on the
Thai/Malay border region or their non-allotment during the period of the
Indonesian Confrontation. These sought either medal recognition for their
service or repatriation benefits or a combination of both …”11
23.Importantly “Most, if not all, of the submissions … concerned either … involvement in
operations on the Thai/Malay border region or … non-allotment during the period of
the Indonesian Confrontation”.12 The Confrontation ended in August 1966. There is
therefore no evidence that Mohr considered service by RCB at all.
24.The Clarke Review’s bibliography has no reference to any of the primary documents
provided to this Tribunal by the RCBRG.13 This is unsurprising because such bodies
rely primarily on public submissions, relevant private organisations (veterans’
8 McLennan, R.K., Minute to Chief of Defence Force, Review of Service Entitlement in Respect of the Royal
Australian Air Force and Army Rifle Company Butterworth Service 1971-1989, 2000-34836 Pt 1, para 2.
9 Department of Defence, Award for Service in South-East Asia 1955-1989, DEFGRAM No 233/2001, 2 July
2001, p. 1.
10 The Hon R.F. Mohr, Review of Service Entitlement Anomalies in Respect of
South-East Asian Service 1955-75, February 2000, p. 32.
11 Ibid., p. 33.
13 Clarke, J, Report of the Review of Veteran’s Entitlements, January 2003, from p 869.
evidence upon which to make a determination. This approach is detailed in both the
Mohr and Clarke reviews.14 Realistically, a determined examination of archival
documents by private bodies did not commence until the formation of the Rifle
Company Butterworth Review Group (RCBRG) in 2006 so that the evidence
uncovered by the RCBRG was unavailable at the time to the Clarke Review (or the
Mohr Review or CIDA for that matter).
25.In making its recommendation on Butterworth, the Clarke Review gave as part of its
reason that “…no specific armed enemy threat was present…”15 and that there was
no “…threat from enemy action”,16 yet Defence has since confirmed that such a threat
was present in the form of Communist Terrorists – the very reason that RCB was
deployed in the first place. It is clear that the Clarke Review did not have access to
the abundant evidence of the armed enemy threat posed by the Communist
Terrorists to Butterworth contained in the historical record.
Defence Review of RAAF and RCB Service (2000)
26.At para 1.4(c) Defence cite the recommendation of the CDF that led to service at
Butterworth being declared a non-warlike operation for the purposes of the Australian
Service Medal Regulations.17 This is the current ASM that RCB veterans are entitled
27.Defence have provided a copy of the CDF’s recommendation in the group of papers
included with its submission.18 This Minute does not support the Defence contention
that RCB service was peacetime. On the contrary, the Minute, in particular its
Background briefing is quite clear that RCB service was not ordinary peacetime
28.The Minute declares that the recommendation to award RCB the ASM “is in keeping
with CIDA principles”.19 Principle 1 of CIDA is discussed above and by invoking the
CIDA principles the CDF agreed that RCB service had “…been rendered beyond the
normal requirements of peacetime…” and that RCB veterans had been involved in
“…military activities clearly and markedly more demanding than normal peacetime
service”. Nor did the CDF consider that RCB service was “…training and garrison
duties…” as these are not conducive to CIDA Principle 1.
29.The CDF was also clear that the primary role of RCB was not training as Defence
14 The Hon R.F. Mohr, Review of Service Entitlement Anomalies in Respect of
South-East Asian Service 1955-75, February 2000, from p XXX; Clarke, J, Report of the Review of Veteran’s
Entitlements, January 2003, from p 59.
15 Report of the Review of Veteran’s Entitlements, January 2003, para 14.138.
16 Ibid., para 14.137.
17 Commonwealth of Australia Gazette, No. S230, 29 June 2001.
18 Barrie, C.A., CDF, Recommendations of the Review of Service Entitlement in Respect of the Royal Australian
Air Force and Army Rifle Company Butterworth Service 1971-1989, CDF 249/01.
19 Ibid., Overview dot point 7.
“In 1970, the Rifle Company Butterworth (RCB) was raised to provide a quick
reaction force to meet the communist terrorist threat and provide internal
security and protection for Australian assets within the perimeter of Royal
Malaysian Air Force (RMAF) Base Butterworth.”20
30.A year earlier the A/CDF, LTGEN Mueller also found that “RCB service was to protect
the base against terrorist insurgency.”21
31.If these findings by the CDFs are considered in the light of the Clarke and Mohr
principles that placing ADF personnel in a position to react to a threat means that that
service is operational and placing them in harm’s way and danger then the Defence
position of peacetime service becomes untenable.22 The CDF documents provided by
Defence mitigate against a finding of peacetime service and lend greater weight to
the RCBRG position of recognising RCB service as warlike. This is especially so
once the incurred danger principle is applied to the CDF’s findings.
The 2011 DHAAT Review
32.The 2011 Tribunal states that it received “…30 written submissions…” from
individuals, groups and the Department of Defence.23 None are included but it is
assumed that the Defence submission was that presented by the VCDF. Whether
those submissions covered identical ground to the RCBRG submission cannot be
determined. However, this is not an insurmountable problem as the inquiry report
“The evidence presented to the Tribunal by and on behalf of the claimants is
not substantial. It consists of recollections of those who served with RCB of
the arduous training which they undertook both before deployment to
Butterworth and while they were there as well as descriptions of the detailed
preparations and operational plans which were developed in anticipation of
possible emergency situations.”24
33.It appears from this that none of the primary and secondary documentary evidence
contained in the RCBRG submission to this Tribunal was made available to the 2011
inquiry in those written submissions.
34.The evidence primarily relied on by the DHAAT is contained in paras 51-54 of the
20 Ibid., Overview dot point 2.
21 Mueller, D., A/CDF, Implementation of the Recommendations of the Review of Service Entitlements
Anomalies in Respect of South East Asian Service 1955-1975, CDF 440/2000, Issues para 5.
22 See para 15 of the RCBRG Submission.
23 DHAAT, Inquiry into Recognition for Members of Rifle Company Butterworth for Service in Malaysia Between
1970 and 1989, 18 February 2011, para 10.
24 Ibid., para 47.
1.Prime Minister’s Statement to Parliament dated 25 February 1969.25
2.The Exchange of Notes between the Government of Australia and the
Governments of Malaysia and Singapore in late 1971.26
3.Letter from the Secretary, Department of the Army to the Secretary,
Department of Defence, dated 19 May 1969, AWM200 R579/1/17G PART1.27
4.A letter from the Chief of the General Staff to the commander of Far East
Land Forces dated 23 May 1969.28
5.A staff instruction titled ‘Infantry Company to Butterworth’ issued by 28
Commonwealth Brigade on 22 October 1970.29
35.So, the 2011 Tribunal relied primarily on five documents dated between 1969-1971
to determine the nature of service of RCB between 1970-1989 and none of those
documents examine the situation on the ground during those years. The Tribunal
also dismissed the input of veterans as “not substantial”. By way of contrast, the
RCBRG submission relies on hundreds of documents, including Top Secret and
Secret, both high level official documents and assessments of the situation faced on
the ground at Butterworth. The 2011 Tribunal’s reliance on a mere five high level
documents covering a two-year period in order to assess the nature of service of
troops deployed over 19 years hardly seems adequate.
Fulcher and the Department of Defence
36.In both the Mitterer and Fulcher matters before the DHAAT Defence makes the point
that in both cases it was found that the applicants’ service:
“…has not been subject of a declaration by the Governor-General under the
relevant regulations. Consequently he did not render service in a prescribed
operation entitling him to this award.”30
37.But this is no answer to the question before the Tribunal of whether RCB service
should be reclassified as warlike. That requires the examination of facts and
evidence rather than the regurgitation of the findings of previous bodies. That is
something that the Defence submission appears loathe to do.
38.The problem for the Defence narrative in the Fulcher matter is that in that case the
Tribunal found that RCB service was not normal peacetime service:
“The Tribunal notes that service with RCB and by other ADF personnel at Air
Base Butterworth between 1970 and 1989 has been recognised by the award
of the ASM with Clasp ‘SE ASIA’. The existence of this award is integral to the
25 Ibid., para 52.
26 Ibid., para 51.
27 Ibid., paras 52 and 53.
28 Ibid., para 54.
30 Department of Defence, Inquiry into medallic recognition for service with Rifle Company Butterworth,
Department of Defence Submission, July 2022, para 1.24.
Tribunal’s considerations because it means that such service has already
been recognised as ‘hazardous’ and was therefore not rendered under
ordinary peacetime conditions.”31
39.The Tribunal went on to say that:
“In the current state, in accordance with the 2007 decision of the Minister for
Veterans’ Affairs, ADF service at Butterworth Air Base between 1970 and
1989 is considered as ‘hazardous’…”32
40.This Tribunal is referred to the Defence Honours and Awards website at
gives the dates for the award of the ASM relevant to RCB service as 14 February
1975 to 31 December 1989. Further, the Declaration and Determination (Gazette
S64) of 28 Feb 2002, which is also on that site, declares the service for that period to
be “non-warlike operations” and not “hazardous” service as the Tribunal then
41.It is the case that then Minister Billson signed instruments determining RCB service
to be “hazardous” or “non-warlike” in 2007. However, as Defence has made clear on
numerous occasions this determination had no legal force because:
“…the Instruments had not been formally registered on the Federal Register
of Legislative Instruments and consequently all service at Butterworth from
1966 (post Confrontation) remained classified as peacetime service.”33
42.This means that in the Fulcher matter the Tribunal made a factual error and non–
existent award “integral to the Tribunal’s considerations”.
43.The Tribunal said of RCB’s ROE that “…the ROE covered a situation which can be
described as one of ‘extended self-defence’…”.34
44.It would appear that “extended self-defence” is a wholly invented category by the
DHAAT. It is unknown to former and serving members, some of whom have
developed ROEs for operational deployment and is not contained in any relevant
An unanswered question
45.Between paras 3.28 and 3.29 Defence posits a question that it leaves unanswered:
“Was service with Rifle Company Butterworth non-warlike in nature, or is the
Australian Service Medal awarded because of Rifle Company Butterworth’s
connection with non-warlike operations in South East Asia?”
46.The answer to this question is contained in some of the documents attached to the
Defence submission. A series of Minutes – CA R1-4-B003, CMP/FB 107/01, CDF
31 Fulcher and the Department of Defence  DHAAT 08 (14 May 2020), para 32.
32 Ibid., para 42.
33 Feeney, D., Senator, Parliamentary Secretary for Defence, Letter to Mr Robert Cross, 19 May 2012.
34 Fulcher and the Department of Defence  DHAAT 08 (14 May 2020), para 51.
non-warlike service to RCB. Those documents make it clear that the award of the
ASM for RCB was due to the unique circumstances RCB faced, such as:
“…RCB was established in 1970 as a quick-reaction force to provide
protection for Australian assets within the perimeter of the Royal Malaysian
Air Force Base Butterworth due to the continued threat of armed Communist
terrorism within its borders.”35
“…the role of the RCB was to provide a quick-reaction force to meet the
communist terrorist threat…”36
“RCB service was to protect the base against terrorist insurgency…”37
47.The mission of RCB was therefore distinct and the award of the ASM was for that
distinct service and not as part of a wider catch-all as appears to be the case with the
The Defence “reasoning” for peacetime service
48.At para 3.7 of the Defence submission, it makes the claim that:
“Rifle Companies which rotated through Air Base Butterworth were never
engaged in activities directly related to hostile or dissident elements.”
49.Given the abundance of evidence before the Tribunal of the role of RCB in defence of
the air base and the identified threat from “hostile or dissident elements” this claim is
untenable. Even the documents that Defence provided with its submission make it
clear that the RCB was deployed specifically to counter the threat of “hostile or
dissident elements” to the base, see para 46 above.
50.Para 3.7 becomes clearer when it is paired with para 3.29g, which states that
Hansard [which one?] confirms that RCB “…were not to be used for any security
operations outside of the Air Base…”. It then becomes apparent that Defence
considers that only offensive operations are capable of being “directly related” to the
51.This overlooks the concept of deterrence that underpins defence policy and tactical
doctrine. The object of defence is to deter attack while retaining the capability to take
offensive action if required. This was the case with the way in which RCB was
employed as part of the measures to defend the airbase at Butterworth. The NZ
review acknowledged that “Deterrent operations by their very nature anticipate
threats, and if those threats do not eventuate, it may be because they are
35 Barrie, C.A., CDF, Recommendations of the Review of Service Entitlement in Respect of the Royal Australian
Air Force and Army Rifle Company Butterworth Service 1971-1989, CDF 249/01, Issues para 5.
37 Mueller, D., A/CDF, Implementation of the Recommendations of the Review of Service Entitlements
Anomalies in Respect of South East Asian Service 1955-1975, CDF 440/2000, Issues para 5.
38 NZDF, Reassessment of the Recommendations of The Medallic Recognition Joint Working Group on New
Zealand Military Service in South East Asia 1955 to 1989, March 2021, para 132.
52.The Defence position becomes even more untenable when legal precedent is
considered. In David Norman Ahrenfeld v Repatriation Commission  FCA 319
the court reviewed a decision of the Administrative Appeals Tribunal (AAT) that was
claimed under the Repatriation Act 1920, but determined under the Veterans’
Entitlement (Transitional) Act 1986. In that decision Einfeld J said:
“The Tribunal’s reasoning (p 5) was that ‘actual combat’ means ‘offensive
action’ as opposed to ‘passive defence’ and that the applicant’s service fell
within the latter category. It seems to me, however, that the activities of armed
forces personnel do not easily lend themselves to such a distinction. What in
fact exists is a host of different activities, each of which contribute to the ‘war
effort’, with varying degrees of proximity to defeating or frustrating the
53.Einfeld J went on to say:
“In my view, the correct definition of ‘actual combat against the enemy’ in the
context of this Act is ‘integral participation in or in activity directly intended for
an encounter with the enemy’.”40
54.Einfield J further said that relying on a distinction “…between ‘offensive action’ and
‘passive defence’ seems to me clearly to involve an error of law”41
55.The RCB, through its QRF role in particular, was integrally involved in activity
“directly intended for an encounter with the enemy”, even if that activity was wholly
defensive in nature and even if no encounter actually happened due to the
deterrence being successful.
56.Para 3.29a of the Defence submission says that the Malaysian Government did not
request, and Australia did not offer, military assistance throughout 1970-1989. The
RCBRG extensively covers the fact that no such request was necessary under the
legislation and policy of the time for service to be warlike, only the presence of an
enemy threat was necessary.
57.If the Defence position that a request from the host country was necessary for warlike
service was correct it would bring into question the recognition of warlike service of
those who served during the Vietnam war. A paper was tabled in Parliament in 1975
and is currently available on the Prime Minister & Cabinet website. The paper is
entitled Australia’s Military Commitment to Vietnam and makes it clear that South
Vietnam did not request Australian military assistance:
“Despite the fact that the Government of South Vietnam on 29 April 1965
announced that the Australian battalion was sent in response to a request
39 David Norman Ahrenfeld v Repatriation Commission  FCA 319, para 33.
40 Ibid., para 47.
41 Ibid., para 46.
58.The paper then goes on to discuss how none of the subsequent increases in
Australian forces was at the request of the South Vietnamese government but merely
accepted by it.
59.Defence also overlooks that an Exchange of Notes by the Malaysian and Australian
Governments was in place from 1971 as part of the Five Power Defence Agreements
(FPDA). That Exchange of Notes stated that:
“The Government of Malaysia agrees that the Australian force stationed at
Butterworth, composed of two squadrons of fighter aircraft and their
supporting units and from time to time an infantry company may continue to
be stationed here”.43
60.Defence’s response also overlooks that a resurgence of communist insurgency was
underway at the time Australia became a signatory to the FPDA and to the Exchange
of Notes between Australia and Malaysia. The Malaysian Communist Insurgency
1968-1989 is well documented. Defence has previously acknowledged that during
this period the threat was “…proven to be real with recorded clashes on a number of
occasions within its borders until Chin Peng, the Communist Leader, signed a peace
accord in Dec 89.”44 The exchange of notes and FPDA were both signed in 1971.
61.Defence would also be aware of the message of thanks from the Malaysian CDF on
the 50th anniversary of the deployment of RCB to Butterworth where he confirmed
that a resurgence of the communist insurgency was ongoing for the whole period of
RCB deployments 1970 to 1989.
62.Para 3.29b of the Defence submission claims that the “…activities of communist
terrorists in Malaysia…have been found to be incidental to…” ADF personnel at
Butterworth. There is considerable evidence in the RCBRG submission that
demonstrates that the communist terrorist threat to the base was not an “incidental”
matter. In the early 2000s the CDF even acknowledged that the very reason for the
existence of RCB was “the activities of communist terrorists in Malaysia”:
“…the role of the RCB was to provide a quick-reaction force to meet the
communist terrorist threat…”45
“RCB service was to protect the base against terrorist insurgency…”46
63.The RCBRG submission provides evidence to show that, in fact, RCB service was
42 Australia’s Military Commitment to Vietnam, 1975,
, page 1 para 4.
43 Five Power Defence Arrangements – Exchange of Notes constituting an Agreement Between the Government
of Australia and the Government of Malaysia Regarding External Defence, National Archives of Australia
Barcode 30156205, 1 December 1971.
44 Barrie, C.A., CDF, Recommendations of the Review of Service Entitlement in Respect of the Royal Australian
Air Force and Army Rifle Company Butterworth Service 1971-1989, CDF 249/01, page 1 dot point 5.
46 Mueller, D., A/CDF, Implementation of the Recommendations of the Review of Service Entitlements
Anomalies in Respect of South East Asian Service 1955-1975, CDF 440/2000, Issues para 5.
integral and crucial to the defence of Butterworth from “the activities of communist
terrorists in Malaysia”.
64.In 1971 Defence were well aware of the inability of Malaysian forces to defend their
own base against insurgents and identified that the essential element for doing so
was the RCB. A secret FARLEY report from 1971 sets out the reason for the report:
“To combat the risk of an attack on Air Base Butterworth, Commander ANZUK
Air Headquarters…directed the Officer Commanding Air Base Butterworth to
set up a committee to assess what counter measures would be required to
provide Air Base Butterworth with a capability to meet any threat to the
65.The report advised that:
“…establishments do not provide for measures to fully counter the assessed
threat to ANZUK installations and equipment arising from the resurgence of
communist activity in West Malaysia.”48
66.It also advised that:
“…there is a significant deficiency in the capability at Air Base Butterworth to
oppose or even contain, any attack or attempted sabotage.”49
67.The Malaysians are commended for their co-operation in preparation of the Shared
Defence Plan but:
“…their capability to implement the Plan is unproven. It is known that they are
untrained in weapon handling and have only limited stocks of weapons and
no ground radio communications. The effectiveness of the RMAF to assist in
the shared defence of Air Base Butterworth is therefore suspect.”50
“The Malaysian lack of capacity to effectively provide for their role in the
security of Air Base Butterworth is a cause of serious concern…”51:
68.The report concluded that:
“Current security arrangements provide for a Shared Defence Plan…which is
adequate to meet the threat, if the Base receives advance warning. On the
other hand, arrangements are inadequate to meet a surprise attack…”52
69.To guard against this surprise attack which, according to various intelligence
assessments throughout the period, was the most likely form of attack, Butterworth
“…essential permanent quick reaction force needed to meet a surprise attack,
47 Parker, I.S., Counter Measures to Security Threat to Air Base Butterworth Until End 1972, 24 December 1971,
48 Ibid., para 22.
49 Ibid., para 26.
50 Ibid., para 40.
51 Ibid., para 41.
52 Ibid., para 46.
70.That quick reaction force (QRF) was provided by the RCB and the report warned
“…unless an Army presence can be guaranteed at all times, two flights of
ADGs would be required to sustain a Quick Reaction Force.”54
71.The 2020 DHAAT review correctly found that:
“… the deployed Army company was integrated into the arrangements to
protect the Air Base.”55
72.RCB was not only an integral part of the defence of Butterworth but was considered
by Australian authorities to be the most crucial, and only reliable, aspect of
Butterworth’s defence against communist insurgents.
73.At para 3.29c Defence assert that the Malaysian government “…never declared a
‘Second Emergency’ due to the communist terrorist threat. The Malayan Emergency
of 1948-1960 was marked by a formal Government declared Emergency.”
74.The RCBRG submission discusses Defence’s changing argument on this point from
there being “”no war or emergency” until veterans proved there was then shifting to
the argument that there was an emergency but “There was no use of emergency
powers…in relation to communist terrorists or insurgents”. 56 On being provided with
evidence to the contrary the VCDF simply refused to respond.
75.The Malaysian Prime Minister at the time was certainly under the impression that
Malaysia was facing a second emergency:
“In September 1975 the Malaysian Prime Minister, Tun Razak, described the
recent resurgence of communist guerrilla activity in Peninsular Malaysia as
“The New Emergency”…”57
76.In his message of greetings for the 50th anniversary of RCB deployments the
Malaysian CDF considered the period 1970-1989 to part of “the resurgence of the
77.Ultimately however it does not matter whether Malaysia declared an emergency or
whether it was for Sino-Malay disturbances or used against communists. It is not
relevant to the question of whether RCB service was warlike or whether Malaysia
was, as they believed, in a state of war.
78.As the Federal Court of Australia has stated, a state of war is not determined by
53 Ibid., para 23.
54 Ibid., para 47c.
55 Fulcher and the Department of Defence  DHAAT 08 (14 May 2020), para 36.
57 Stubbs, R., Peninsular Malaysia: The “New Emergency”, Pacific Affairs, Vol 50, No 2 (Summer, 1977), p 249
“Nor is the ascertainment of the existence of a state of war under municipal
law or international law the relevant criterion for our purposes… However, the
rules of international law in this area throw some light on the intended
operation of our statutory definition. As Lord McNair and A.D. Watts (The
Legal Effects of War, at p.2) remind us, being “at war” is a technical concept
referring to a state or condition of affairs, not mere acts of force.”58
“His Honour held, correctly, in our opinion, that the statutory definition of
“theatre of war” is looking to practical, rather than juristic concepts. It clearly
contemplates an actual, as distinct from a legal or theoretical, state of
79.The key deficiency in the Defence submission is its failure to support its myriad
assertions with any discussion or, more importantly, evidence. By contrast, the
RCBRG submission and this rejoinder is heavily reliant on primary and secondary
evidence and discusses its significance.
80.It is an approach that RCB veterans are used to. It seems that Defence has the
culture that what it says is gospel and therefore there is no need to prove itself. The
Defence submission is an example of the approach taken by Defence towards RCB
veterans over many years – a refusal to engage honestly with the evidence. It is the
reason that many in the RCBRG have also engaged with the Royal Commission into
81.The principles enunciated by MAJGEN Mohr in his report, which was adopted by
Government, are fundamental to the process of reclassifying past service.
82.MAJGEN Mohr stated that if ADF personnel are placed in circumstances where they
may be used to react to an assessed threat made by Australian Government
intelligence agencies, it has to be considered operational service. This is regardless
of whether the threat is realised or not.
83.The Defence submission confirms at 3.29 e. that JIO identified the communist
insurgents were a threat to the Butterworth Airbase during the period 1970 to 1989.
RCB was deployed to react to an attack on the airbase, including QRF reaction to
vital points. Accordingly, it follows that RCB service should be reclassified as
operational service and should be awarded the AASM.
“I believe that in making retrospective examinations on the nature of service
many years after the event, as is now the case, the concepts and principles
involved should be applied with an open mind to the interests of fairness and
equity, especially if written historical material is unavailable for examination or
58 Thomas Joseph Marsh v the Repatriation Commission  FCA 303, para 28.
59 Ibid., para 31.
the anomalies put forward and to me, it accords with the general Defence
classification principles and the benevolent nature of the Veterans’
Entitlements Act, and the general principles promoted therein.”
MAJGEN Mohr, REVIEW OF SERVICE ENTITLEMENT ANOMALIES IN RESPECT OF
SOUTH-EAST ASIAN SERVICE 1955-75, February 2000, p. 10.
Chair Rifle Company Butterworth Review Group
Rifleman, 7 Platoon, C Coy 2/4 RAR, deployed to Butterworth February – May 1979
Ph: 0435 003 713
23 August 2022