Case: Proctor v Repatriation Commission [1999] FCA 32 ; (1999) 54 ALD 343
Outcome: cited
The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989) 87 ALR 511 , Repatriation Commission v Ahrenfield (1991) 29 FCR 556 , Proctor v Repatriation Commission [1999] FCA 32 ; (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568. Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision: "1. the nature of the veteran's service overall; 2. the essential character of the veteran's service during the period spent outside Australia when that essential character is determined by reference to matters such as: (1) the period of time for which the veteran is outside Australia; (2) the purpose for which the veteran was outside Australia; (3) events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area; (4) the veteran's activities during the period outside Australia; and (5) the veteran's activities both before and after the period of service outside Australia; and 3. whether, having regard to its conclusions on the first two matters, the veteran's service in the particular period can be seen to be treated as operational service." 22 In any event, had the questions been framed in the manner suggested the answer to both of them must have been: no. The Tribunal's task, when called on to apply s 6A(1) , necessarily involves questions of degree and requires the making of value judgments. In Repatriation Commission v Kohn (1989) 87 ALR 511 , Hill J provided guidance on the exercise of the Tribunal's power under s 6A. His Honour said (at 524-525): "It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s 6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of "operational service" in s 6(1)(a). When attention is focused on the rendering of continuous full-time service outside Australia, it is not correct to look in isolation at the period of time in which the member of the defence force is outside the three mile limit to the exclusion of the periods of time immediately before and immediately after that period. Nor is the purpose for which the member of the forces comes to be outside Australia irrelevant. Rather, it may be necessary to consider a wider period of time. How wide a band of time that is to be considered will depend upon the facts of each case. One must then ask, looking at the relevant period overall, whether it is correct to categorise the member's service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia. If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia, then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as "operational service". It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman's service by reference to it. However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia." The definition of operational service, now found in Item (1)(a) of s 6A of the VE Act , appeared in s 6(1)(a) at the time at which Hill J's decision was made. Kohn has been adopted and applied by the Court in later cases: see Proctor at [16] and [24] and Roscoe at [35].