Case: Repatriation Commission v Kohn (1989) 87 ALR 511
Outcome: applied
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]. 23 Mr Roper had ventured outside Australia on only two occasions during his military service. There was evidence before the Tribunal, including evidence from Mr Roper's son, that the two flights formed part of the training regime for aircrew. The training was designed to familiarise the crew (including Mr Roper) with new aircraft prior to them being posted overseas. The possibility of any enemy contact during the flights was low. The fact that surveillance work was undertaken during the flights did not detract from the essential training purpose which they served. It was open to the Tribunal to determine that the relevant service of Mr Roper fell into the second category of case identified by Hill J, namely, that in which when "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 ...". The training base was in Australia. The training flights left from and returned to the Australian base. The duration of those parts of the flights which took place outside Australian territorial limits were relatively short. In these circumstances it cannot, in my opinion, be said that there was no evidence to support the two impugned findings. Nor can the submission, made by counsel for Mrs Roper, that the only conclusion open on the facts found was that Mr Roper performed operational service outside Australia, be accepted. 24 These paragraphs are both very difficult to understand. Paragraph 2.13 appears to attribute to the Tribunal a finding which it did not make. The Tribunal did not reason that, because the two flights were for the purposes of training and familiarisation with the new aircraft, this precluded Mr Roper's service being operational service. Paragraph 2.14 appears designed to raise a construction point. It seems intended to raise the question of whether, in deciding whether or not Mr Roper had rendered continuous full time service outside Australia, the Tribunal was entitled to pose and answer the subsidiary question of whether the service was for the purpose of training and familiarisation with the new aircraft. The Tribunal did not ask this question. It asked whether "the essential character of Mr Roper's service during the periods he was outside Australia was one of training and familiarisation with the Liberator." Neither paragraph propounds a pure question of law. 25 These questions appear to be linked to grounds 4.5 4.7. Mrs Roper submits that the question for the Tribunal was whether Mr Roper rendered service outside Australia. By asking itself whether the essential character of the service was "one of training and familiarisation with the Liberator" the Tribunal was, so it was said, diverted from giving attention to this question. Mrs Roper complains that the Tribunal treated the task of characterisation as being at large and that the Tribunal drew a dichotomy between service and training which was inconsistent with the terms of s 6A(1) of the VE Act . 27 The Tribunal directed itself consistently with Hill J's judgment in Kohn. It was required to characterise Mr Roper's flights to (or towards) Middleton Reef. The amount of time Mr Roper spent outside Australia during these flights was a matter to be considered in forming this judgment. This was a fact finding exercise. It is clear from the principles identified by the Tribunal (see above at [11]) that it correctly understood the task it was required to perform. It did not treat the time spent outside Australia as a relevant principle. Rather it identified this as a matter which, in an appropriate case, would assist in determining the essential character of a veteran's service. The Tribunal's reasoning at paragraphs [44] to [47] demonstrates that it considered the evidence before it in light of the principles which it had distilled from decisions of this Court. 28 For the reasons explained above at [23], it was open to the Tribunal to find that the flights were undertaken for training purposes and that the essential character of Mr Roper's relevant service, considered overall, was not continuous full-time service outside Australia. 29 The question asked in paragraph 2.15 lacks precision. In particular, it is not clear what is comprehended by the phrase "the correct application of s 6A Item 1(a) ...". If paragraph 2.15 is intended to raise the question of whether, on the facts found, Mr Roper's two flights outside Australia constituted operational service within the meaning of s 6A , a pure question of law could probably be framed. It is another way of raising the issue to which question 2.1 seems to be directed. 31 It is clear, particularly from the definition of "continuous full-time service" in s 5C , that the words in s 6A Item 1(a) are used according to their ordinary meaning: see also Kohn at 524, quoted above at [22]. For the reasons given earlier the facts found by the Tribunal did not necessarily render Mr Roper's service, in the course of the two flights, continuous full-time service outside Australia. There is, therefore, no question of law raised by paragraph 2.15, even if it is broadly construed. 32 For these reasons I do not consider that a question of law has been identified for the purposes of s 44 of the AAT Act . Even if the necessary foundation for the Court's jurisdiction had been established the appeal would, for the reasons given above, have failed. 33 There is a further problem with the present appeal. It is brought against what amounts to a preliminary decision on a matter of evidence. The Tribunal has yet to determine Mrs Roper's application to it. There are strong policy reasons for avoiding fragmentation of and delay in proceedings before the Tribunal.