Baker and Repatriation Commission (Veterans' entitlements)

[2023] AATA 2709

Baker and Repatriation Commission (Veterans' entitlements) [2023] AATA 2709 (24 August 2023)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/10113

Re:Anne-Maree Baker

APPLICANT

AndRepatriation Commission

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Brigadier A G Warner, AM LVO (Retd), Member

Date:24 August 2023

Place:Perth

The Tribunal does not have jurisdiction to review the Declaration of the Repatriation Medical Authority’s dated 18 August 2017.

...............[Sgd].........................................................

Brigadier A G Warner, AM LVO (Retd), Member

CATCHWORDS

VETERANS’ AFFAIRS – interlocutory hearing – Applicant applied for review of Veterans’ Review Board decision – jurisdictional question – to be decided as preliminary issue – whether Tribunal has power to review Repatriation Medical Authority declaration not to make Statement of Principles – Tribunal has no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 33(1)(a)

Veterans Entitlements Act 1986 (Cth) – ss 9, 180A, 180A(3), 196B(6), 196E(1)(b), 196E(1)(e), 196Y(e)

CASES

Frugtniet v Australian Securities and Investments Commission [2019] HCA; 266 CLR 250

REASONS FOR DECISION

Brigadier A G Warner, AM LVO (Retd), Member

24 August 2023

INTRODUCTION

1. The Applicant has applied to the Tribunal for review of a decision made by the Veterans’ Review Board (VRB) dated 22 November 2022 (the VRB decision) that affirmed a determination dated 18 May 2021, which found the claimed condition, described by the Applicant in her claim as ‘mefloquine neural toxicity’, was not related to the Applicant’s war service for the purposes of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (VEA).

2. The Applicant has raised a jurisdictional question. The parties have agreed that the Tribunal should decide that question as a separate preliminary issue.  Accordingly, an interlocutory hearing was conducted by telephone on 19 July 2023.  The Applicant attended and was represented by Mr Arthur Ventham, RSLWA advocate.  Ms Lindsay Cooper, of the Australian Government Solicitor, represented the Respondent.

   ISSUE

3. The Tribunal has a procedural discretion pursuant to s 33(1)(a) of the Administrative Tribunals Act 1975 (Cth) (AAT Act) that empowers it to determine a preliminary issue separate from a final hearing.  In this matter, the Tribunal must determine whether it has jurisdiction to review the Repatriation Medical Authority’s (RMA) declaration dated 18 August 2017 (T17) as part of its review of the VRB decision.

   BACKGROUND

4. The Applicant was born in 1971 and served in the Australian Army from 12 April 1988 to 26 August 2004 (T2/7), including service in East Timor.

5. On 18 August 2017, the RMA made a declaration under s 196B(6) of the VEA that it did not intend to make a Statement of Principles (SoP) for chemically-acquired brain injury caused by mefloquine, tafenoquine or primaquine (T16/67, T17/68-91).  This reflects the RMA conclusion following an investigation, that there is insufficient sound medical-scientific evidence that exposure to mefloquine, tafenoquine or primaquine causes chronic brain injury.

6. On 22 December 2020, the Applicant made a claim with respect to mefloquine neural toxicity (T18), and on 18 May 2021 the Respondent declined the claim (T21).

7. The Applicant applied to the VRB for review of the Respondent’s decision, and on 22 November 2022, the VRB decided to substitute a diagnosis of ‘acquired brain injury secondary to mefloquine toxicity’ instead of ‘reversible leukoencephalopathy’, and to affirm the decision under review by finding that the substituted condition is not related to service (T38/784).

8. On 11 December 2022, the Applicant applied to this Tribunal for review of the VRB decision dated 22 November 2022 (T1/1-5).

9. The Applicant receives the special rate of pension pursuant to s 24 of the VEA and holds a Veteran Gold Card (Exhibit A1 para 3.6; Exhibit R3, para 4)

   RELEVANT LEGISLATION

10. The legislation relevant to this jurisdictional question is contained in the AAT Act and the VEA.

11. The Respondent submits that the Tribunal addressing the Applicant's jurisdictional question will decide a preliminary issue relevant to the Tribunal discharging its function to review the merits of the VRB decision (Exhibit R1, para 5). As stated at [3] above, the Tribunal has a procedural discretion arising from s 33(1)(a) of the AAT Act that empowers it to determine a preliminary issue separate from a final hearing. The VEA does not relevantly confer a limitation on the Tribunal's procedural discretion to deal with preliminary issues in this manner for the purposes of altering the operation of s 33(1)(a) of the AAT Act.

    THE HEARING AND EVIDENCE

12. The Tribunal admitted the following documents into evidence at the hearing:

    ·The “T Documents” (T1-T38, pp 1-790);

    ·Applicant's Statement of Facts Issues and Contentions filed on 14 April 2023 along with the Medical Journal Articles and information sheets (Exhibit A1);

    ·Applicant's email dated 14 April 2023 (Exhibit A2);

    ·Declaration of Professor Nicholas Saunders dated 18 August 2017 (Exhibit A3);

    ·Statement of Issues, Facts and Contentions of the Respondent filed on 8 March 2023 – Jurisdiction to Review the RMA Declaration dated 18 August 2017 (Exhibit R1);

    ·Respondent's Submissions in Reply dated 5 May 2023 (Exhibit R2); and

    ·Statement of Issues of the Respondent dated 7 February 2023 (Exhibit R3).

    CONSIDERATION

13. The Respondent contends (Exhibit R1, para 13) “that the Tribunal is not empowered to review the RMA declaration in this proceeding” and “is bound to take the RMA declaration into account in its current terms when making its decision in this proceeding”.

14. In oral submissions during the hearing Mr Ventham:

    ·cited several authorities in support of his contention that the Tribunal could make a decision on jurisdiction, and accepted that the issue was whether there was jurisdiction or not (transcript/9);

    ·stated that there was no dispute with the diagnosis of acquired brain injury, as substituted by the VRB (transcript/10-11);

    ·thought that at the time of the RMA decision there may have been insufficient evidence to suggest that mefloquine poisoning existed, but that “since 2017 there had been a plethora of reviews done” and “legislation changes through the world on mefloquine…” (transcript/14);

    ·stated that there were more than 1500 scientific and medical journal articles on the dangers of mefloquine and that there were hundreds of veterans like the Applicant who are suffering injuries and illnesses, and some suicides, as a result of mefloquine (transcript/16);

    ·suggested that there was an analogy between the mefloquine trial in East Timor and the use of agent orange in South Vietnam, however accepted that this was not relevant to the current jurisdictional question (transcript/16-17); and

    ·submitted that although the RMA has made declaration that it is not going to make the relevant SoP, the Respondent has the discretion under s 180A of the VEA to make a determination and that would allow the VRB or the Tribunal to do exactly the same (transcript/13-14; see also Exhibit R2, para 2).

    Tribunal’s powers pursuant to s 180A of the VEA

15. The Applicant contends that the Tribunal has the power to make a determination in respect of a type of injury, disease or death under s 180A of the VEA. Section 180A(3) of the VEA provides that: “A determination under this subsection in respect of a particular kind of injury, disease or death must be by legislative instrument and must…”

16. In Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 the High Court stated at [51]:

    … except where altered by some other statute… The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints.  The primary decision, and the statutory questions it answers, marks the boundaries of the AAT’s review.

17. The Respondent submits that in this matter, the primary decision-maker had no power to make a legislative instrument under s 180A of the VEA, and that as the Tribunal is subject to the same constraints, it cannot make a declaration pursuant to s 180A of the VEA. The Tribunal agrees.

    Review of RMA Declaration

18. Section 196Y(1)(e) of the VEA provides for review of the RMA Declaration to be undertaken by the Specialist Medical Review Council (SMRC). The Tribunal has no general review power and the VEA does not empower it to review RMA declarations.

19. The Respondent notes that the Applicant would have had standing to seek this kind of review, however the period allowed for doing so expired three months after the RMA Declaration was made (Exhibit R1, para 21).  Mr Ventham acknowledged this during the hearing (transcript/14-15).

20. The Respondent also notes (Exhibit R1, para 22) that the Quinoline Veterans and Families Association in 2018 requested a review of the RMA Declaration dated 18 August 2017, and the SMRC decision dated 17 September 2018 concluded that there was insufficient evidence to justify making a SoP.

21. In concluding remarks, the Respondent invited Mr Ventham to have a close look at paragraph 23 of Exhibit R1 (transcript/14), which states:

    The applicant appears to contend there have been relevant developments in medical science in the intervening years. If the applicant wishes to seek further consideration of the substantive merits of the RMA declaration, the applicant can request a review by the RMA of that declaration in accordance with s 196E(1)(e) of the VEA. The applicant appears to have standing to do so: s 196E(1)(b).

    CONCLUSION

22. For completeness, the Tribunal asked the Respondent whether there were any precedents similar to this jurisdictional question, and the Respondent advised that she was not aware of any.  The Respondent also advised that she was unaware of any movement on the RMA position related to its declaration dated 18 August 2017 (transcript/7).

23. Having regard to the above, the Tribunal is satisfied that it does not have jurisdiction to review the RMA Declaration dated 18 August 2017. This matter should now be returned to conference to determine the parties’ intentions as to the progress of the substantive application.

24. The Tribunal records its appreciation of the Applicant’s service in the Australian Army and the valuable support provided to veterans by advocates such as Mr Ventham.  

    DECISION

25. The Tribunal does not have jurisdiction to review the Declaration of the Repatriation Medical Authority dated 18 August 2017.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member.

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Associate

Dated: 24 August 2023

Date(s) of hearing:	19 July 2023
Representative for the Applicant:	Arthur Ventham
Representative for the Respondent:	Lindsay Cooper, Australian Government Solicitor