Advisory from Disability Compensation Branch

No 4/2001

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

Army Reserves and Continuous Full-time Service

ISSUE

Whether non-contiguous periods of service can be aggregated to satisfy the 3 year requirement for continuous full-time service in the Australian Defence Force (ADF) before qualifying for benefits under the serving member provisions of the VEA.

SHORT ANSWER

2 — No.  Continuous full-time service is a single, unbroken period of service.

REASONS

3.To be eligible under Part IV of the VEA a member of the Forces must have a period of 3 years 'continuous full-time service' or 3 years 'effective full-time service'.  Effective full-time service is defined under 68(1) as “any period of continuous full-time service...” excluding a number of circumstances.

4.'Continuous full-time service' is defined under section 5C(1) as

“...

(ii) service in the military Forces of the Commonwealth of the kind known as continuous full-time service;”

5.Although 'continuous full-time service' is not defined in the Defence Act 1903 it is clear from the relevant provisions of Part III of that Act that only members of the Australian Regular Army are bound through their appointment at all times to render “continuous full-time military service”. Regular service as a member of the ADF Reserves does not constitute full-time (FTS) service for the purposes of the Defence Act 1903.

6.Where there is a need from time-to-time Members of the ADF Reserves may also render “continuous full-time service” where they are called out for such service under s50D, s50E, s50F or s51.  The service of any member of the ADF reserves will only be considered FTS where he/she is specifically employed with the Regular Army for a period designated as FTS.

7.The Macquarie dictionary defines 'continuous' as “1. Having the parts in immediate connection, unbroken.  2. Uninterrupted in time; without cessation.”  It would appear that '3 years continuous full-time service' would in the case of an ADF reserve be a 3 year unbroken period of employment for FTS.  Any additional employment would not constitute a continuous period.

8.This is supported by section 69(3) of the VEA that provides that continuous full-time service that has not been continuous will not satisfy the requirements for eligibility under Part IV.

9.There is very little case law in this area.  One case of note is the Federal Court decision in Boots v Repatriation Commission (1993) 29 ALD 702.  In this case, Boots served in the Dutch underground resistance during WWII.  While technically serving part-time the Federal Court viewed the service as continuous full-time service for the purposes of the VEA.  This decision was based on the threat of danger to Mr Boots, which the court considered was not a part-time risk.  This case has relevance to the deeming of service as full-time, however it does not offer any assistance in respect of the requisite continuous nature of that service.

10.It should be noted that it would be very difficult for an ADF Reserves member to satisfy Part IV of the VEA.  Under Defence Instructions (Army) pursuant to section 9A of the Defence Act 1903 employment of Members of the Army Reserve on full-time service should not be for a period exceeding two years.  In such circumstances a transfer to the Australian Regular Army will be the preferred option.

PART TIME SERVICE

11.Part time service is not full time service and no periods of part time service can be added together to count as full time service.

CONCLUSIONS

12.Continuous full-time service is a single continuous period of service where the person is specifically employed for a period of full-time service.  Any subsequent full-time service is a separate period of service for the purposes of both the Defence Act 1903 and the VEA.  Separate periods of service added together cannot constitute a “continuous” period.

John R Douglas

Director

Policy Eligibility and Research

30 March 2001