Roper and Repatriation Commission
[2007] AATA 1130
•14 March 2007
CATCHWORDS – VETERANS’ AFFAIRS – operational service – whether veteran rendered continuous-full-time service outside Australia during World War 2 – the essential character of the veterans’ service – veteran did not have operational service
Acts Interpretation Act 1901 s 15B(4)
Administrative Appeals Tribunal Act 1975 s 37
Seas and Submerged Lands Act 1973
Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 s 3, Schedule 1
Veterans’ Entitlements Act 1986 ss 5B(1), 5B(3), 5C(1), 5Q, 6(1)(a), 6(1)(n), 6A(1), 9(1), s 13(1)(a), 13(1)(c), 14, 120(1), 120(3), 120(4), 6 to 6F
Proctor v Repatriation Commission (1999) 54 ALD 343
Re Collier and Repatriation Commission [2004] AATA 663
Re Collier and Repatriation Commission [2004] AATA 663
Re Jackson and Repatriation Commission (1992) 28 ALD 275
Repatriation Commission and Smith AAT 5999, 22 June 1990
Repatriation Commission v Ahrenfeld (1991) 29 FCR 556; (1991) 101 ALR 86
Repatriation Commission v Kohn (1989) 87 ALR 511
Repatriation Commission v Proctor [1998] FCA 609
Repatriation Commission v Smith (1987) 16 FCR 327
Roscoe v Repatriation Commission [2003] FCA 1568
DECISION AND REASONS FOR DECISION [2007] AATA 1130
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/996
VETERANS’ APPEALS DIVISION )
Re CORAL SYLVIA ROPER
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 14 March 2007
Place: Melbourne
Decision:The Tribunal decides that:
1.the applicant’s late husband did not have operational service within the meaning of s 6A(1) of the Veterans’ Entitlements Act 1986; and
2.the issues in this case must be decided according to the standard of proof set out in s 120(4) of the Veterans’ Entitlements Act 1986.
S A FORGIE
Deputy President
REASONS FOR DECISION
The applicant, Mrs Coral Roper, made a claim for a pension on 29 October 2001. Whether she must establish her claim to the Tribunal’s reasonable satisfaction or can take advantage of the more liberal reasonable hypothesis standard provided in ss 120(1) and (3) of the Veterans’ Entitlements Act 1986 (VE Act) depends upon whether or not her late husband, Mr David Herbert Roper, had operational service within the meaning of s 6A(1) of that legislation. I have decided that he did not and so Mrs Roper must establish her claim to the Tribunal’s reasonable satisfaction.
BACKGROUND
Many of the facts forming the background to this case were agreed upon between the parties. In light of that and on the basis of the material lodged in the matter, I have made the findings set out in the following paragraphs.
Mr Roper’s service
Mr Roper was born on 8 February 1926 and died on 3 February 2001. He served in the Royal Australian Air Force (RAAF) from 21 April 1944 until 24 October 1945. His postings during his service were:
21 April 1944 1 Initial Training School, Somers, Victoria
22 May 19441 Service Flying Training School, Point Cook, Victoria
16 July 1944 1 Initial Training School, Somers, Victoria
13 October 1944 Air Gunnery School, West Sale, Victoria
5 December 1944 1 Personnel Depot, Melbourne, Victoria
27 December 1944 Aircrew Officer & NCO School, Watsonia, Victoria
19 February 1945 No 7 Operational Training Unit, Tocumwal, NSW
25 June 1945 102 Heavy Bomber Squadron, Cecil Plains, Queensland
16 October 1945 1 Personnel Depot, Melbourne, Victoria[1]
[1] Statement of Agreed Facts, [4]
Mr Roper qualified as an Air Gunner on 23 November 1944 while he was at the Air Gunnery School. While he was at No 7 Operational Training Unit (7OTU), between 20 February 1945 and 14 May 1945, he took part in the No 10 Liberator O/T Course. The purpose of that course was to train aircrews on the B-24 Liberator (Liberator). That aircraft was a long range American bomber with a defence of .50 calibre machine guns. The aircrews’ training included long-range navigation, formation flying, gunnery, crew teamwork, fighter attacks and coastal patrol in preparation for their being posted to an active combat squadron. The Liberators that they flew during training were armed and, at times, carried a light bomb load of practice bombs for designated bombing ranges and remote practice targets. A normal heavy bomb load for a Liberator was made up of 250lb and 500lb bombs. Practice bombs, which were smoke bombs, weighed 8.5lbs, 11.25lbs or 12.25lbs. When they struck their targets, the smoke bombs emitted white smoke so enabling the aircrew to assess the accuracy of their bombing. The Liberators did not carry depth charges.
Mr Roper flew in the Liberators as an Air Gunner. He fired the .50 calibre machine guns, which were armed. After embarking on a flight, he would often fire them to check them as well as on practice shoots both at air to air targets and into the water. Firing into the water enabled the aircrew to see the splashes and so allowed them to determine the accuracy of the Air Gunner over a considerable distance.
The aircrew was expected to be observant during each flight on the Liberator. They were expected to report anything unusual that they saw during a flight and especially if they saw it over water. The Radio Operator maintained radio contact with Australia. He was expected to report any such things as well as identified and unidentified shipping.
If the aircrew suspected that they had sighted, bombed and/or fired at a submarine or midget submarine, they were expected to report the sighting by radio and on their return to base. Following a report of a suspected sighting, bombing and/or firing at a submarine a general alert would have been issued to all ships in the area and RAAF aircraft and Navy ships would have been sent to investigate. There is no record of a suspected sighting, bombing and/or firing in the 7OTU diary, in other Australian records or subsequent Japanese and Australian history books of the era.
Mr Roper maintained a log book of the flights he undertook during his RAAF service. Instructions were printed at the beginning of the log book:
“1. This log book is an official document and the property of the Commonwealth Government.
2.Observers, air gunners and w/t operators will maintain an accurate and detailed record of all flights undertaken on service aircraft.
3.…
4.Bombing and air gunnery records will be entered in the appropriate pages at the back of the book annually on 30th June.
5.Monthly totals will be entered on a single line in red ink and initialed [sic] by the commanding officer or his deputy.”[2]
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), 43
Mr Roper’s last recorded flight occurred on 1 October 1945.[3] At regular intervals his log book was signed by a Flight Lieutenant. Until 29 August 1945, it was signed by the Flight Lieutenant for “OC ‘B’ Flight 7 OTU TOCUMWAL”. From September 1945, they were signed by the Flight Lieutenant for “OC ‘A’ Flight 102 (H/B) Squadron”.
[3] T documents, 49
While at 7 OTU, Mr Roper’s flew in the Liberator from Tocumwal and over or near the ocean on seven occasions:
| Date | Flight Time Day/Night | Results (including results of bombing, gunnery, exercises etc) |
| 9 March 1945 | 4 hours and 15 minutes (Day) | “Splash gunnery – 110 rds fired right hand gun U/S sighted two freighters 5-6000 tons off Cape Otway” [4] |
| 14 March 1945 | 3 hours and 35 minutes (Day) | “Night flying French Is →Snake Is →base”[5] |
| 19 March 1945 | 4 hours and 35 minutes (Night) | “Night flying sketched. Sheperton [sic], Ballerat [sic], Cape Nelson”[6] |
| 28 March 1945 | 4 hours and 20 minutes (Night) | “Night flying. Geelong – sea leg – base”[7] |
[4] T documents, 45
[5] T documents, 45
[6] T documents, 45
[7] T documents, 45
| 11 April 1945 | 8 hours and 5 minutes (Day) and 3 hours and 55 minutes (Night) | “Middleton Reef. Nav, Bombing 10,000’”[8] |
| 16 April 1945 | 1st flight: 20 minutes (Day) 2nd flight: 5 hours and 30 minutes (Day) and 5 hours and 30 minutes (Night) | “[9]Nav’ Radar Bombing ‘Pyrimid [sic] Rock” “creeping line ahead search. Radius of action return to base. Pyrimid [sic] Rc – Sydney – base” |
| 23 April 1945 | 1st flight: 20 minutes (Day) 2nd flight: 9 hours and 35 minutes (Day) and 40 minutes (Night) | “Middleton Reef. Mission abandoned engine trouble No 2 Engine returned base.”[10] |
[8] T documents, 46
[9] T documents, 46
[10] T documents, 46
Apart from the flight on 9 March 1945, the pilot on each flight was Flight Lieutenant Stevens.
While at 102 Squadron, Mr Roper made the following flight over water with Flight Lieutenant Stevens as pilot:
| Date | Flight Time Day/Night | Results (including results of bombing, gunnery, exercises etc) |
| 29 August 1945 | 3 hours and 35 minutes (Day) | “Amberley – sea leg – Fraser Is – base nav’ and radar exercise – ships sighted - cloudy” [11] |
[11] T documents, 48
Middleton Reef is located approximately 1,000 kilometres north east of Sydney, 200 kilometres north of Lord Howe Island and 650 kilometres off the east coast of Australia. The flights to or towards Middleton Reef took Mr Roper outside the Australian Territorial Zone.
Mr Roper’s service medical documents note that he was medically examined at 102 Squadron, Cecil Plains, prior to his discharge. It took place on 7 October 1945.[12] A short time later, Mr Roper described the medical examination as “cursory”.[13]
[12] T documents, 12
[13] Statement of Agreed Facts, [38]
Enemy forces
There were no known enemy forces on sea, land or air in the areas and at the time that Mr Roper undertook flying duties. Since 1942, there had been no Japanese midget submarines in the ocean areas over which Mr Roper flew. Japanese midget submarines were battery powered and were carried to an area by a larger submarine. They had to be re-charged by the larger submarine and could only travel a limited range from the larger submarine. They were not ocean-going and did not have the capacity to be in a remote part of the sea off the Australian coast. By June 1943, all Japanese submarines had withdrawn from Australian waters. There were no German midget submarines.
During December 1944 and January 1945, the German submarine, U862 (U862), operated along the South Australian, Victorian and New South Wales coasts. On 25 December 1944, U862 sank the Robert J Walker, which was off Moruya on the coast south east of Canberra. That was a ship of the United States of America. By February 1945, U862 was off the Western Australian coast and returning to its base in northern waters.
The Japanese surrendered on 15 August 1945.
Operations by 102 Squadron in the areas of Bougainville, Morotai and Finschafen
102 Squadron undertook some long distance flights taking fresh food to the former battle areas of Bougainville, Morotai and Finschafen and bringing back military personnel. The flights were undertaken with aircraft stripped of some equipment and with reduced aircrew. Flights began 20 September 1945. Flight Lieutenant Stevens made flights of this type on 20 September 1945, 9 October 1945 and 19 October 1945. Mr Roper was a member of 102 Squadron at this time but his last recorded flight was 1 October 1945. His log book does not record any flight to Bougainville, Morotai, Finschafen or any other former battle region.
There were a number of instances of whales’ being bombed by Australian aircraft during World War II. One such instance occurred at Coffs Harbour when a bomb was dropped on a whale from a Hudson Bomber. The whale later floated to shore.
THE EVIDENCE
Mr Roper’s widow, Mrs Coral Roper, and son, Mr Stephen Roper, have spoken of their father’s memories about his wartime activities. Mr Stephen Roper wrote in a letter dated 30 May 2005:
“3. My understanding from my father was that he was actively operational on his flights over Middleton Reef and for a number of similar flights.
His flight logs and his personal reminisces mention training and operational flights as part of the No. 102 Heavy Bomber Squadron based at Tipton near Dalby in Queensland. This was according to his reminiscences a new squadron formed prior to active service in Burma. According to my fathers [sic] reminence [sic] the new Squadron flew as part of familiarisation with new aircraft but he clearly indicated that these were armed flights including a number of flights out into the Pacific Ocean.
He told his family and I many times about long flights out to sea and of an occasion I am reasonably sure was into the Pacific Ocean towards Lord Howe Island when they dropped heavy ordinance on what they initially believed was an enemy submarine.
He told us how they came across what they believed was a submarine starting to dive fired a number of bursts of machine gun and dropped several bombs.
No vessel surfaced or was seen but an oil slick was observed.
He said on many occasions that they subsequently thought it may well have been a Whale these being quite common in this area. I remember very clearly having a long discussion with him about this, as he was quite concerned having killed a Whale. (He had a strong affection for animals) and when I challenged him about the loss of life that would have occurred if it had been a submarine it spurred a long discussion between us about war and ethics as he felt this was the only time he had ever been in the position of intentionally killing someone. I was around 18 years old at the time and was facing possibility of National Service. It had an effect on me and I noted it in my diary at the time …
He made it very clear that they were doing an active patrol albeit part of a broad familiarisation process with the new aircraft prior to overseas posting.
On other occasions he talked about how cold the long out to sea flights were and he mentioned flying low and test firing the various machine guns at the start of flights.
My father always believed that even though he was not credited with serving in direct action that he had been active and operational and ready for overseas posting. His squadron were rostered for posting to Burma and doing coastal patrols as part of their broader training. The end of the war in the Pacific removed the need for overseas active posting.”[14]
[14] T documents, 69-70
At the hearing before the Veterans’ Review Board (VRB), Mr Stephen Roper said that his father had told him:
“… they were going out to the bombing range or something like that out at Middleton Reef, and in the process of flying out there they saw something which the assumption was – I am guessing young men waiting for some action, they dropped a bomb on it, thinking it could be a submarine. And he always talked about he was never sure whether it was a whale or a submarine, but certainle [sic] there was oil which coloured the water.”[15]
[15] VRB transcript, 26 September 2005 at 6 referred to in Statement of Agreed Facts, [42]
Mr Stephen Roper has also said:
“… He told me that his flight crew dropped a charge on what they thought was a midget submarine. He told that although the incident occurred towards the end of the war, it was known that there were still small submarines operating. He told me that there was some sort of oil slick but neither he nor the other members of his flight were ever sure whether they had dropped the charge on a whale or a submarine.
My father did tell me (and it is in his flight log book) that he flew to Middleton Reef as part of his flight training. I think there may have been several such flights. It is my understanding that Middleton Reef was used as a bombing range.”[16]
[16] Statement, 17 November 2005 at 1
Mrs Roper said that her husband:
“… did mention on a number of occasions … an incident when members of his plane … [sighted] what they believed to be an enemy submarine … his plane dropped bombs on the object and … as air gunner he personally fired on the object with the machine gun. He advised us that an oil slick was noted but other than that he and his crew never knew whether in fact they had been firing upon an enemy submarine or whale.”[17]
[17] Statement, 25 October 2005 at 1
LEGISLATIVE BACKGROUND
Where the death of a veteran is war-caused, the Commonwealth is, subject to the VE Act, liable to pay a pension to that veteran’s dependants.[18] A dependant of a deceased veteran may claim a pension.[19] The expressions “war-caused injury” and “war-caused disease” are defined in s 9. Section 9(1) provides, in part, that:
“… for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
[18] s 13(1)(a) and (c)
[19] s 14
There is a clear difference between the two and the difference is continued by the provisions made in the VE Act regarding the standard of proof that must be reached in order to establish a claim. If the claim is made on the basis of a veteran’s operational service, the much more generous “reasonable hypothesis” standard of proof applies. Provision is made for that in ss 120(1) and (3). Otherwise, the person making the claim must make out the grounds of the claim to the Commission’s reasonable satisfaction.[20]
[20] s 120(4) and see also Repatriation Commission v Smith (1987) 15 FCR 327 at 329 per Beaumont and Northrop JJ
The expression “operational service” has the meanings given to it by ss 6 to 6F of the VE Act.[21] Section 6 explains that each of ss 6A to 6F deals with operational service in relation either to a particular timeframe, a particular type of service or a particular place. As Mr Roper served during World War II, s 6A is the relevant section as it deals with operational service during a war to which the VE Act applies. As there is no question that Mr Roper was a member of the Defence Force during World War II,[22] and he did not serve in the Northern Territory, paragraphs (a), (c) and (d) of Item 1 of 6A(1) are relevant:
“Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
[21] s 5C(1)
[22] World War II includes a war that the began on 3 September 1939 and includes any other war in which the Crown engaged after 3 September 1939 and before 3 September 1945 and is taken to have ended on 28 April 1952: ss 5B(1) and (3).
| Operational service | ||
| Item | Person | Nature of service |
| 1 | A member of the Defence Force | (a) continuous full-time service outside Australia during a war to which this Act applies |
| (b) … | ||
| (c) continuous full-time service during a war to which this Act applies rendered within Australia immediately before, or immediately after, a period of continuous full-time service of the kind referred to in paragraph (a) or (b) | ||
| (d) continuous full-time service rendered within Australia during World War 2 in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy, | ||
Once a person has, at any time, rendered continuous full-time service outside Australia during a war to which the VE Act applies, the effect of Item 1(c) of s 6A(1) is to make all of the veteran’s service operational service whether rendered immediately before or immediately after the person rendered that continuous full-time service.
The expression “continuous full-time service” is defined in s 5C(1) to mean, in so far as it is relevant in this case:
“… service in the Air Force of the Commonwealth of the kind known as continuous full time Air Force service …”
THE APPLICANT’S SUBMISSIONS
On behalf of Mrs Roper, Mr Jorgensen referred to a number of previous authorities as did Mr Douglass on behalf of the Commission. Among those to which Mr Jorgensen referred were Repatriation Commission v Kohn,[23] Re Repatriation Commission and Smith,[24] Proctor v Repatriation Commission,[25] Roscoe v Repatriation Commission[26] and Re Collier and Repatriation Commission.[27]Each was determined after identifying the “essential character” of the service in accordance with the principles set out by Hill J in Kohn.[28] Mr Jorgensen distinguished them saying that it was important to note that each case concerned journeys transporting a person from one place to another. Mr Roper’s case is different in that the essential character of his flights offshore was different. His flights were not transitory in their character but were undertaken in order to practice bombing and undertake surveillance.
[23] (1989) 87 ALR 511, Hill J
[24] AAT 5999, 22 June 1990
[25] (1999) 54 ALD 343, Einfeld, Carr and Lehane JJ
[26] [2003] FCA 1568 per Gray J
[27] [2004] AATA 663
[28] (1989) 87 ALR 511 at 524-525
Mr Jorgensen embraced Deputy President Thompson’s reasons in Re Jackson and Repatriation Commission.[29] That was a case concerning Mr Jackson’s trip to Morotai for a short period to pack aircraft parts. Deputy President Thompson decided that Mr Jackson had rendered operational service. Mr Jorgensen referred to the judgment of the majority, Einfeld and Carr JJ, in Proctor when they decided that the level of risk that a veteran would be exposed to enemy contact was a relevant circumstance in determining the essential character of service or a particular part of service. Two of the flights that Mr Proctor undertook were inherently dangerous, Mr Jorgensen submitted.
[29] (1992) 28 ALD 275
CONSIDERATION
I will begin with an analysis of the authorities. The earliest is Kohn decided by Hill J. The Tribunal had found that Mr Kohn had spent some hours outside Australia’s three mile limit while travelling from Townsville to Cairns as a member of the RAAF.
Hill J canvassed the history of the current legislative provisions and concluded:
“ The analysis of the legislative history supports the submission that the continuous policy of the legislation has been to provide preferential treatment in pension claims in pension claims to persons whose service was in a real sense outside Australia. It does not suggest any intention on the part of the legislature to give preferential treatment to persons stationed in Australia who proceed outside the three mile limit during a transit from one place in Australia to another and whose service was always in reality in Australia.”[30]
[30] (1989) 87 ALR 511 at 522
In examining the provisions of the VE Act, Hill J came to the same conclusion regarding the policy between the provisions defining “operational service”. As to the approach that should be adopted, Hill J said:
“ 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 the time in which the member of the Defence Force is outside the three mile limit at 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 on 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 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 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 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.”[31]
[31] (1989) 87 ALR 511 at 524-525
The Full Court of the Federal Court in deciding Repatriation Commission v Ahrenfeld[32] also traced the history of the relevant legislative provisions. It did so in considering the then equivalent of the current Item 1(d) of the definition of “operational service” in s 6A(1). That was found in then s 6(1)(a).[33] The Full Court found that Parliament had always drawn a distinction between active service outside Australia and that within Australia. The former qualified as “Active Service” but the latter did not except in limited circumstances. One of those circumstances was couched in similar terms to Item 1(d). The central issue concerned the meaning of the words “service in actual combat against the enemy”.
[32] (1991) 29 FCR 556; (1991) 101 ALR 86
[33] Section 6 was repealed and substituted and s 6A added by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997, s 3, Schedule 1, Part 1, item 6.
Mr Ahrenfeld, who was a radio operator, had not served outside Australia at any time but he relied on his service at Onslow in the Exmouth Gulf area of Western Australia between 7 May and 15 September 1943. The area was raided by Japanese aircraft on the nights of 20 and 21 May 1943. Mr Ahrenfeld recalled that, on 20 May 1943, an enemy aircraft flew over Onslow and dropped two bombs on the Onslow airstrip. Mr Ahrenfeld saw the flash of the bombs from his radio room. The Tribunal had found that Mr Ahrenfeld would not have been in “actual combat” as he had not been engaged in some activity to engage the enemy. The words “actual combat” required that he be so engaged.
The Full Court rejected the Tribunal’s approach saying:
“ The primary Judge favoured the view that the expression ‘actual combat against the enemy’ would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. We agree with that treatment of the matter. The facts as found by the AAT could answer this description, whether or not Onslow was actually bombed. After all, the respondent was a radio operator engaged in passing on information about enemy incursions to Western Area Headquarters. He remained on duty, as presumably he was required to do, even when aircraft were in the immediate area. At least one enemy aircraft passed over Onslow on at least one night. It may be that activities comprising less involvement than those found by the AAT in this case would be embraced within the meaning of ‘in actual combat against the enemy’. But it is sufficient for present purposes to say that facts which answer the description propounded by the primary Judge would, in law, afford a basis for the formation of an opinion by the Commission that there was service in actual combat against the enemy.”[34]
[34] (1991) 29 FCR 556; (1991) 101 ALR 86 at 562-563; 93-94
A Full Court comprising Einfeld, Carr and Lehane J considered the then s 6(1)(a) in Proctor. Mr Proctor had served in the Australian Army from 2 January 1942 to 5 September 1946. He was based at Caloundra and had received training in driving cars, trucks and bren gun carriers. He drove trucks supporting an armoured truck unit. On 14 June 1943, Mr Proctor left Caloundra on board a Landing Ship Tank (LST) and travelled to Townsville where it arrived on 18 June 1943. The purpose of the voyage was to move armoured tanks, ammunition, support vehicles and spare parts to a region within Australia where there were considerable LST movements at that time. Mr Proctor drove a truck containing spare parts to the Atherton Tablelands together with the rest of his unit and returned to Caloundra. In the course of the passage from Caloundra to Townsville, the LST travelled well beyond the three mile territorial limit. While there was no evidence that the LST encountered any enemy activity during Mr Proctor’s passage, there were enemy submarines operating off the coast of New South Wales and Queensland between mid January and mid June 1943.
On appeal,[35] Branson J allowed an appeal against the Tribunal’s conclusion that Mr Proctor’s voyage had not amounted to continuous full-time service outside Australia. Her Honour found that the Tribunal had misconstrued s 6(1)(a) and had failed to determine for the purposes of that provision “the essential character” of Mr Proctor’s service. She found that the Tribunal had acted on the premiss that its finding that the LTS on which Mr Proctor travelled was likely to become engaged in combat with the enemy led to the conclusion that he rendered operational service within the meaning of s 6(1)(a). Branson J rejected this approach saying that nothing in Kohn or in the then s 6(1)(a) lent any support for it. Unlike s 6(1)(n), s 6(1)(a) is not directly concerned with whether particular service involved risk of “combat against the enemy”. What the Tribunal was required to do, she said:
“… was to determine ‘the essential character’ of the service of Mr Proctor. To do this it was not entitled to look in isolation at the short period of time during which Mr Proctor was outside Australia: it was required also to consider the periods of time immediately before and immediately after that period. How wide a band of time it was to consider was a matter for it to determine having regard to the particular circumstances of Mr Proctor’s service. However, the band of time would need to be sufficiently wide to place Mr Proctor’s voyage on LST 458 in a proper context having regard to the nature of Mr Proctor’s service generally.
Having identified the appropriate period of time to be considered, the AAT was required to ask itself, ‘is it correct to categorise [Mr Proctor’s] service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia?’. In answering the above question, the AAT was required to bear in mind, as Hill J pointed out in Kohn’s Case at 224-5, that s 6(1)(a) of the Act is to be construed so as to exclude ‘mere transitory passages outside Australia’, and that –
‘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.’”[36]
[35] Repatriation Commission v Proctor [1998] FCA 609
[36] [1998] FCA 609 at 7-8
On appeal from Branson J, Einfeld and Carr JJ of the Federal Court disagreed that the Tribunal had fallen:
“… into error by referring to the likelihood of the vessel becoming engaged in combat with the enemy necessarily leading to the conclusion that Mr Proctor had rendered operational service within the meaning of s 6(1)(a). We think that the tribunal was entitled to refer to that very real circumstance as part of the process of characterising Mr Proctor’s service during the voyage. The tribunal was recognising, as a relevant part of that characterisation, his exposure to risk of enemy contact. …”[37]
[37] (1999) 54 ALD 343 at 348
Justice Lehane agreed with Einfeld and Carr JJ that the appeal should be allowed and substantially for the same reasons as they gave.[38] He observed that it is “… an area in which anomalies, and fine and unsatisfactory distinctions, abound”.[39] He went on to identify a number of consequences that led him to say that it was not easy to believe in the existence of a policy that led to them. He continued:
“ The problem is, however, that by contrast, for example, with para (b) and para (c), s 6(1)(a) does not place a minimum qualifying period on the required continuous full-time service outside Australia. There is no process of construction which would warrant reading para (a) as if it included a minimum qualifying period. There is, therefore, in my view no escape from the conclusion that distinctions of the kind discussed by Hill J in Repatriation Commission v Kohn (1989) 18 ALD 414; 87 ALR 511 must be made. Argument proceeded before us on the footing of common ground that the decision in Kohn was correct and that Hill J, at ALR 524 and 525, correctly perceived the nature of the distinction between those brief excursions outside Australia which should be treated as continuous full-time service outside Australia and those which should not.”[40]
Of the Tribunal’s reasoning, Lehane J said:
“… In considering that character, it was not irrelevant to take into account the likelihood that the vessel would have become engaged in combat with the enemy. But plainly that is not the sole matter which the tribunal took into account. …”[41]
[38] (1999) 54 ALD 343 at 349
[39] (1999) 54 ALD 343 at 349
[40] (1999) 54 ALD 343 at 349
[41] (1999) 54 ALD 343 at 350
More recently, Justice Gray has considered the principles in Roscoe v Repatriation Commission.[42]Mr Roscoe served in the RAAF from 5 June 1942 to 30 October 1945. Between 26 August and 31 August 1943, he was a passenger on the MV Koolinda, travelling from Fremantle to Broome. The voyage was part of Mr Roscoe’s journey from Perth to Cape Leveque to which he had been posted for the purpose of working at the radar tracking station. He was stationed at Cape Leveque from 11 September 1943 until 31 July 1944 when he was transferred to Cape Naturaliste. The Tribunal had accepted that Mr Roscoe was unlikely to have taken part in watch or guard duty while on the vessel. It also accepted that there was no objective threat to the vessel from enemy aircraft, submarines, mines or personnel at the time. He did not engage in actual combat against the enemy during the voyage. The Tribunal had concluded that Mr Roscoe did not render operational service for the purposes of the VE Act.
[42] [2003] FCA 1568
Justice Gray canvassed the Full Court judgments in Kohn and Proctor and concluded:
“It is plain from these authorities that the task of characterisation of the veteran’s voyage from Fremantle to Broome was essentially a fact-finding exercise. The Tribunal in the present case plainly considered the evidence before it. It made it clear that it accepted the evidence of Associate Professor McCarthy. In the light of that evidence, it would have been mere speculation to have found that the veteran was actively engaged in the defence of the ship, or that the ship was subject to any threat from enemy aircraft or submarines. It was certainly open to the Tribunal to find that the voyage was a mere transit between two postings within Australia, and that the essential character of the veteran’s service was that it did not involve service outside Australia. There is no suggestion that the Tribunal misunderstood the task that it had to perform. There is therefore no question of law involved. The conclusion that the veteran did not render operational service was one for the Tribunal.”[43]
[43] [2003] FCA 1568 at [38]
The principles in these cases have been considered in a number of Tribunal decisions, to which the parties referred me. I will refer to only two of them for each necessarily turned on its own facts. In Re Jackson and Repatriation Commission,[44] Deputy President Thompson said of Hill J’s judgment in Kohn that “… it is not possible to regard everything which was said by His Honour as a statement of principle.”[45] Of Mr Jackson, Deputy President Thompson said that his 20 day visit to Morotai was not attended by any danger from enemy raids. At the same time, he was not simply being transported from one place in Australia to another. He went overseas to do a job and, having done it, returned to Australia. There is no doubt that, while doing that work, he was rendering continuous full-time service. In Deputy President Thompson’s view, Mr Jackson was rendering operational service as defined in s 6(1)(a).
[44] (1992) 28 ALD 275
[45] (1992) 28 ALD 275 at 276
In Re Collier and Repatriation Commission,[46] Senior Member Dwyer said of the previous Full Court’s judgment in Proctor:
“ If, as seems to be the situation, it is ‘common ground’ that the decision in Kohn is correct, it is not easy to discern the error in the reasoning of Branson J. However, while approving of the reasoning of Hill J in Kohn, the Full Court seems to have emphasised the point made by Hill J that questions of degree are involved in characterising service outside Australia. We must therefore look at the facts in this matter.”[47]
[46] [2004] AATA 663
[47] [2004] AATA 663 at [40]
It seems to me that the Federal Court authorities have set out several principles that guide the Tribunal in making a decision. They are that the Tribunal must consider:
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.
Mr Roper flew beyond Australia’s shoreline on eight occasions. Two of his flights took him beyond Australia’s territorial limits however they are defined.[48] They did so on 11 and 23 April 1945 with the flights taking 12 hours and 9 hours 35 minutes respectively. In light of both the length of the Liberator course Mr Roper was attending in the period from 20 February 1945 and 14 May 1945 and Mr Stephen Roper’s evidence that his father was on “an active patrol albeit part of a broad familiarisation process with the new aircraft prior to overseas posting”, I am satisfied that the flights were taken as part of training. Also on the basis of Mr Stephen Roper’s evidence of what his father had told him, I find that the training was in preparation for his being posted overseas. That posting did not eventuate before Mr Roper was discharge from the RAAF. The aircrew were expected to, and no doubt did, undertake surveillance in relation to, for example, unidentified shipping. Certainly, activities such as surveillance might well have had relevance to operations beyond their relevance to the aircrew’s training. That they might well have had a dual purpose, does not detract from the fact that the flights were for the purpose of training aircrew and familiarising them with the Liberator.
[48] Section 5Q defines “Australia” to include the external territories for the purposes of Parts III and IIIA of the VE Act. It is further defined in the Acts Interpretation Act 1901, s 15B(4) and discussed generally by Branson J together with the effect of the Seas and Submerged Lands Act 1973 in Repatriation Commission v Proctor [1998] FCA 609.
During those flights, Mr Roper fired the Liberator’s .50 calibre machine guns and dropped bombs. I accept the evidence of Mrs Roper and Mr Stephen Roper that Mr Roper told them of diving a firing a number of bursts of machine gun fire as well as dropping several bombs on something that the aircrew thought at the time to be a submarine starting to dive. I also accept that, at a later time, Mr Proctor thought that the submarine might well have been a whale. In view of the historical evidence that is incorporated in the parties’ Agreed Statement of Facts, I am satisfied that, on the balance of probabilities, there were no enemy submarines in the waters off the east coast of Australia. The level of the risk that Mr Roper would be exposed to enemy contact was low.
Before the two flights, Mr Roper had been in the RAAF for about a year. After the two flights, Mr Roper returned to other duties that did not take him outside Australia. He was discharged almost six months later and at a time when many were being demobilised.
Having regard to all of these matters, I am satisfied that the essential character of Mr Roper’s service during the periods he was outside Australia was one of training and familiarisation with the Liberator. It was not one of his being on operational service of a kind referred to in Item 1(a) or (b). That is to say, their essential character was not that of continuous full-time service outside Australia during World War II or service in the relevant geographical areas in the Northern Territory and at the times specified in Item 1(b). Therefore, Mr Roper did not have operational service and Mrs Roper must establish her claim to the reasonable satisfaction of the Tribunal rather than the more liberal reasonable hypothesis test.
I certify that the forty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Hearing 13 October 2006
Date of Decision 14 March 2007
Solicitor for the Applicant Michael Jorgensen
Williams Winter SolicitorsSolicitor for the Respondent Robert Douglass
Advocacy Branch Veterans’ Affairs
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