Brinkworth and Repatriation Commission
[2008] AATA 174
•29 February 2008
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/1480
Veterans' Appeals Division )
Re: Donald Brinkworth
Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM TO DECISION NO. [2008] AATA 174
Tribunal: Deputy President D G Jarvis
Date of Decision: 29 February 2008
Date of Corrigendum: 25 June 2008
Place: Adelaide
Corrigendum
Pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, the TRIBUNAL DIRECTS the Registrar to alter the text of the decision so that the reference to [23] following the citation of Fenner v Repatriation Commission appearing in paragraph 43 of the Tribunal’s reasons for decision is amended to [27].
D G Jarvis
(Signed)
Deputy President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1480
VETERANS' APPEALS DIVISION ) Re DONALD CHARLES BRINKWORTH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Mr S Ellis AM, Member Date29 February 2008
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and in place of that decision, decides that the applicant was a “nuclear test participant” and a person eligible to be provided with treatment under the Australian participants in British Nuclear Tests (Treatment) Act 2006 (Cth).
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS - Australian participants in British nuclear tests - Maralinga area - applicant served with RAAF at Edinburgh Base - meaning of "nuclear test participant” - difficulties in obtaining evidence due to passage of time and secrecy of tests - shifting responsibility of parties to adduce evidence in hearings in AAT - inferences from circumstantial evidence - held that applicant involved in maintenance or cleaning of aircraft contaminated as a result of use in nuclear test area - decision under review set aside.
Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth), ss 5(2), 31
Bushell v Repatriation Commission (1992) 175 CLR 408
Fenner v Repatriation Commission (2005) 218 ALR 122
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228
Re Belhaven and Stenton Peerage (1875) 1 App Cas 278
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Seltsam Pty Ltd v McGuiness; James Hardie Coy Pty Ltd v McGuiness (2000) 49 NSW LR 262
REASONS FOR DECISION
29 February 2008 Deputy President D G Jarvis and Mr S Ellis AM, Member 1. Between 11 August 1958 and 16 March 1961 the applicant, Donald Charles Brinkworth, an Australian resident, served at the RAAF base at Edinburgh as a member of the 2 Air Trials Unit. He was an engine fitter with the RAAF, and his responsibilities included maintaining the engines of a Valiant bomber and Canberra bombers that belonged to the Royal Air Force.
2. These aircraft had flown to Maralinga in the south west of South Australia, being one of the areas where Britain had carried out atomic testing in Australia during the 1950’s and 1960’s. In 2001 the Department of Veterans’ Affairs produced a book entitled Preliminary Nominal Roll of Australian Participants in the British Atomic Tests in Australia (the “Roll”) (exhibit A10). Mr Brinkworth’s name and service number were included in that Roll in the section relating to the RAAF.
3. On 6 October 2006, Mr Brinkworth lodged a claim to be registered for non-liability health care treatment for all malignant neoplasms, on the ground that he had participated in the British nuclear test program in Australia. The claim was lodged pursuant to the Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth) (the “Act”). This provides for testing for, and treating of, malignant neoplasia in Australian participants in British nuclear tests.
4. A delegate of the Repatriation Commission refused Mr Brinkworth’s application. Mr Brinkworth then requested the Commission to review this decision, and another delegate affirmed the refusal of the application. Mr Brinkworth has applied to this tribunal for review of the decision on review made by the second delegate.
Issue for Determination
5. The only issue before this tribunal is whether Mr Brinkworth is a “nuclear test participant” within the meaning of s 5(2) of the Act, on the grounds that he was involved in the maintenance or cleaning of aircraft that were contaminated as a result of use in the Maralinga nuclear test area.
Legislative Scheme
6. Under s 7(1) of the Act, a person is eligible to be provided with treatment under the Act if the person is a “nuclear test participant” and an Australian resident.
7. Section 5(2) provides for persons who qualify as nuclear test participants. It provides relevantly as follows:
“(2) A person is a “nuclear test participant” if the person:
(a)was involved in the … maintenance or cleaning of a vessel, vehicle, air craft or equipment that was contaminated as a result of its use in a nuclear test area, being involvement that occurred at any time during:
…
(iii)if the area was the Maralinga area – the period from the beginning of 27 September 1956 to the end of 30 May 1963 …”
8. The expression “nuclear test area” is defined in s 5(4) to include, in the case of the Maralinga area, the area within forty kilometres of any of the Buffalo or Antler test sites (they being sites where Great Britain exploded nuclear bombs in 1956 and 1957).
Factual Background
9. We base the following background findings partly on the evidence of Mr Brinkworth and partly on the documentary material before us. We found Mr Brinkworth to be a patently careful and honest witness, and we accept his evidence. In the course of his evidence he adopted the information contained in an affidavit he swore on 9 June 2007 (exhibit A11) and the information in a letter to the Department of Veterans’ Affairs dated 15 June 2007 (exhibit A12) (subject to qualifying that information insofar as it referred to “blue steel” bombs being fitted with nuclear warheads).
10. Mr Brinkworth was one of a small group of RAAF personnel who were assigned to maintain and service various aircraft based at 2 Air Trials Unit, including the RAF Valiant bomber and Canberra bombers.
11. An area had been prepared on a remote part of the Edinburgh Airfield for the servicing and cleaning of the Canberra aircraft. Mr Brinkworth described certain special procedures that were used in relation to the RAF Valiant and Canberra aircraft that did not apply to other aircraft at Edinburgh. After the aircraft returned from each flight to Maralinga he and the other ground crew involved in servicing the aircraft were issued with different overalls, namely white overalls instead of blue overalls. The aircraft were then hosed down with high pressure hoses, and the water was channelled into a pit especially dug to receive that waste water. After servicing and cleaning the aircraft the ground crew involved had to deposit their white overalls in a special bin, and then have a shower. The air crew were also required to shower before leaving the area.
12. Mr Brinkworth said that he worked in Hanger 594. This was used to service the RAF aircraft, and to house various items brought back from Maralinga. The concrete floor of this hanger was painted with a white coloured latex material, which made the floor easy to clean. The cleaning was done with a high pressure hose after servicing the aircraft, unlike other hangers at the base, which were cleaned with a mechanical sweeper once a week.
13. It was not possible to use the high pressure hose to clean parts of the aircraft which incorporated electrical wiring. Nor was it possible to clean the cockpits of the aircraft. Mr Brinkworth said that on occasions, he entered the aircraft in order to carry out ground testing after servicing, and he also flew in aircraft after engine replacements. He also flew in the Valiant bomber on occasions, when regular members of the aircrew were unavailable, since he enjoyed flying. He also did this on the Canberra aircraft, but only very occasionally.
14. Mr Brinkworth said that he was aware of the destination of the flights by the RAF aircraft, because he would refer to the logs of the aircraft after they returned to Edinburgh, and this recorded the details of the flights they had made. He said that the aircraft had air monitoring devices fitted to their wings before flights to Maralinga, and those devices were fitted and removed by civilian personnel. He was not at any time informed of the outcome of the measurements conducted by the devices, and it appears likely that any records of those measurements were kept by the Royal Air Force, and not the Australian government.
15. In exhibits A11 and A12 (being an affidavit and letter he provided to the Commission containing information in relation to his claim) Mr Brinkworth refers to flights by the Valiant bomber to drop a blue steel bomb. He said that on occasions a Vulcan bomber would arrive at the Edinburgh base from the United Kingdom, and he observed unloading operations involving the Vulcan bomber and loading operations involving the Valiant bomber at the base, but tarpaulins were used and he was unable to say what had been unloaded and then loaded into the Valiant. In particular, he acknowledged that contrary to what is in exhibits A11 and A12, he was unable to say that the blue steel bombs had been fitted with nuclear warheads. However, he thought that the bombs must have had some radio active components. He said that he had a fairly good idea of when the Valiant was used on a bombing run to Maralinga, because on those occasions the aircraft had two pilots and five other crew members, and no RAAF ground or aircrew were ever permitted to fly on those occasions.
16. The Valiant aircraft could not land at Maralinga, apparently because the airfield was not large enough. However, Mr Brinkworth said that the Canberra aircraft had the capacity to land and take off at Maralinga, and it appears likely that this occurred on occasions. This was because cartridges were used to start the engines, and on some occasions, after the aircraft returned to Edinburgh, the cartridges had to be replaced. This indicated that the aircraft had landed somewhere. From the aircraft logbooks Mr Brinkworth knew the aircraft had gone to Maralinga, although he acknowledged that they might have landed at Woomera and not at Maralinga.
British nuclear test program in Australia
17. The introduction to the Roll gives a brief outline of the British atomic testing program in Australia, and records that it involved the detonation of a total of twelve nuclear devices over the period from 3 October 1952 to 9 October 1957. The last seven of those explosions occurred at Maralinga. Four bombs were exploded as part of Operation Buffalo on 27 September 1956, and on 4, 11 and 22 October 1956. Three bombs were exploded as part of Operation Antler on 14 and 25 September 1957 and on 9 October 1957. The Roll also records that a series of “minor” nuclear trials were then conducted at Maralinga and these continued until 1963. The explosion on 11 October 1956 involved dropping a British “blue danube” atomic bomb from a height of 30,000 feet from an RAF Valiant aircraft, at a site that was agreed to be approximately thirty kilometres from the Maralinga village and the Maralinga airfield (see exhibit R2, being a report by Dr David Wilson of Writeway Research Service Pty Ltd dated 10 August 2007, paragraph 4).
18. In addition to Operation Buffalo and Operation Antler, Dr Wilson also refers in his report to four series of “minor trials” being conducted at Maralinga between June 1955 and May 1963. He reports that three of these trials were undertaken to assist with the design of a nuclear weapon, and two trials were “attempts to study the effect of nuclear weapons being involved in an accidental fire, and the effect of a nuclear weapon to the detonation of high explosives” (sic; exhibit R2, paragraph 4). The parties agreed that the sites of the minor trials were also within thirty kilometres of Maralinga village and the Maralinga airfield.
19. Further information regarding the Maralinga tests is included in exhibit R3, being Chapter 1 of Australian Participants in British Nuclear Tests in Australia, by Michael Carter and others. The following paragraphs appear under the heading “List of Minor Trials”.
“In addition to the major tests, approximately 600 minor trials, in several series, were carried out between 1953 and 1963. Five different types of trials were conducted (see Table 1.2).
Primarily, these minor trials aimed to examine aspects of weapon design and safety, and generally did not involve significant levels of nuclear fission. However, some series, in particular some of the Kittens and especially the Vixen B experiments, did generate relatively large quantities of radioactive contamination. The early trials (Kittens, Tims and Rats) tested individual components of the nuclear weapon, while Vixen A investigated the dispersal of radioactive material and Vixen B assessed the effect of various types of potential accidents on the weapons.”
The text then deals in greater detail with each of the experiments, and includes the number of trials (see exhibit R3, pages 6 – 7).
20. Further reference is made to the minor trials in exhibit A13, being an article published by the Australian Institute of Criminology as part of the Australian Studies in Law, Crime and Justice series. This article describes the British nuclear weapons testing program in Australia, and refers not only to the detonation of atomic bombs, but also to the minor trials at Maralinga. This article includes the following paragraph:
“While less spectacular than the major detonations, the minor trials were more numerous. They also contributed to the lasting contamination of the Maralinga area. As a result of the nearly 600 minor trials, some 830 tons of debris contaminated by about 20 kg of plutonium were deposited in pits which graced the South Australian landscape. An additional 2 kg of plutonium was dispersed over the area. Such an outcome was unfortunate indeed, as plutonium is one of the most toxic substances known; it dissipates more slowly than most radioactive elements. The half-life of plutonium is 24,000 years. At this rate of decay, the Maralinga lands would be contaminated for the next half-million years.”
Documentary evidence referring to Decontamination Facility at Edinburgh Airbase
21. Mr Brinkworth tendered various documents that he obtained from the National Archives in Adelaide, Canberra and Melbourne. These documents refer to the servicing of contaminated aircraft at the RAAF base at Edinburgh. Some of the documents have little relevance to Mr Brinkworth’s service at Edinburgh, but it is appropriate to refer to the following aspects of some of the documents.
22. Exhibit A1 is a minute dated 11 April 1960 from a Squadron Leader at the Government aircraft factories at Fishermen’s Bend. It contains a request for information as to RAAF experience at Amberley and Edinburgh on the level of radioactivity discovered – both external and internal – and its incidence. Mr Brinkworth said that he was unable to obtain copies of any other documents that might have been generated as a result of that minute.
23. Exhibit A2 relates to possible concerns about the drainage of liquid from Hanger 594. This memo is dated 17 March 1958, so that it post-dates the last of the nuclear bomb explosions at Maralinga by some five months. This exhibit also includes a letter dated 21 October 1959 relating to a proposed alteration to an evaporator outlet. The letter is headed “Evaporator, DC Area, Edinburgh Airfield”. Presumably “DC Area” is a reference to the decontamination area.
24. Exhibit A4 is entitled “Handling Facilities for Radioactive Aircraft at RAAF Edinburgh”. This is a very detailed paper, and relates not only to the decontamination facilities at Edinburgh, but also the procedure adopted in dealing with decontaminated aircraft. Mr Brinkworth said that the document is consistent with his recollection of the procedures adopted at the Edinburgh base while he served there. The document is also consistent with Mr Brinkworth’s description of the various facilities in the decontamination area at Edinburgh. It is significant that the document appears to relate to a period that included the minor testing program at Maralinga. This can be deduced from the Foreword, which reads:
“The information contained in this paper was gained by experience during the period November, 1957 – March 1960 …”
Contentions of Respondent
25. In her reviewable decision, the delegate of the Commission said that after a decontamination unit was operational at the RAAF Amberley base in November 1954, all aircraft contaminated as a result of use in a nuclear test were sent to that location for decontamination. She further decided that during the period of Mr Brinkworth’s service, at Edinburgh from 1958 and at Woomera from 1961, personnel were involved in the maintenance or cleaning of aircraft that had already been decontaminated after use in a nuclear test. She further found that Mr Brinkworth was not at risk of any contamination from exposure to the nuclear tests (exhibit R1, T2, page 4).
26. After the Commission had received the report from Dr Wilson (exhibit R2), the Commission advised that its position had changed. The Commission then asserted that it was unclear whether the aircraft that Mr Brinkworth had maintained or cleaned had entered the Maralinga nuclear test area, being the area within forty kilometres of any of the Buffalo or Antler test sites. However, in the course of the proceedings before us, and presumably in the light of Mr Brinkworth’s evidence as to the aircraft log books (see paragraph 14 above), the Commission’s advocate, Mr Crowe, advised us that he was instructed to concede that the aircraft in question had gone to Maralinga.
27. The Commission further argued that in any event, there were no nuclear detonations in the Maralinga area after 9 October 1957, and there was no other evidence of any source of nuclear contamination in that area during Mr Brinkworth’s service, so that even if any of the aircraft he cleaned or maintained had entered the area it was not possible, or alternatively there was no evidence, that they could have been contaminated by such exposure: see exhibit R3. These matters were repeated in the respondent’s Statements of Facts, Issues and Contentions.
28. At the hearing Mr Brinkworth said that it was unlikely that the Valiant aircraft would have flown over the Maralinga test site area at an altitude of less than about 2-3,000 feet. This led Mr Crowe to contend that by the time of Mr Brinkworth’s service at Edinburgh, any airborne radioactive material would have been dispersed, and so the aircraft would not have been contaminated at any time during Mr Brinkworth’s service at Edinburgh.
29. Finally, Mr Crowe contended that the measures taken at Edinburgh in relation to servicing and cleaning the RAF aircraft, as described by Mr Brinkworth, constituted a fail-safe procedure, and did not of themselves constitute proof that any aircraft were contaminated.
30. The Commission relied in support of its contentions on the report of Dr Wilson (exhibit R2). Dr Wilson commented that it was not known whether a warhead was fitted to “blue steel” bombs during trials at Maralinga, but no atomic warhead was detonated during the time of Mr Brinkworth’s service at Edinburgh, and from this he concluded that it was unlikely that the Valiant aircraft was contaminated by radioactive material. He further reported that due to the tasks being undertaken at Maralinga there was no need during this period for the aircraft to be decontaminated, and there was no indication in the historical records to which he referred that any RAF or RAAF aircraft were decontaminated at Edinburgh during this period.
31. Dr Wilson also acknowledged that he did not have access to the service logs of the Valiant aircraft. He reported that during July 1958 the aircraft was recorded as participating in “bomb ballistic trials” and as having participated in “unspecified trials” during March, May, June and July 1959 (exhibit R2, paragraph 6). He also found reference to the aircraft having successfully completed the last trial of the year on 18 December 1959, and having been flown again in February 1960, but said that no details were available of the nature of the trial or subsequent flight. Dr Wilson said in evidence that he obtained this information from the Unit History Record of 2 Air Trials Unit.
32. It appears that the delegate’s reference in his decision to the aircraft having been decontaminated related to the period immediately after the nuclear bombs had been detonated. We find on Mr Brinkworth’s evidence that during his service at Edinburgh, which commenced some ten months after the last nuclear bomb had been detonated at Maralinga, when aircraft left the base for flights to Maralinga they returned to the Edinburgh base within a time frame that meant that there would have been insufficient time for them to have flown on to Amberley and then been decontaminated there, before returning to Edinburgh.
Consideration
33. This tribunal stands in the shoes of the Commission when reviewing the delegate’s decision. Section 31 of the Act provides for the manner in which the Commission (and so this tribunal) should determine applications. It provides as follows.
“31. In making a decision under this Act, the Commission:
(a)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; and
(b)may act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(c)without limiting paragraph (a) and (b), must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records.”
34. Proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell v Repatriation Commission (1992) 175 CLR 408, at 425, per Brennan J. However, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exists: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 358, per Woodward J. This proposition was clearly explained by SM Todd in Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, at [18], as follows:
“I think that this is an instance in which, while no general responsibility of proof rests upon an applicant in an application to the Tribunal for review … yet, when either party to such an application raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.”
35. Mr Brinkworth acknowledged in cross-examination that he could not prove that any of the aircraft that he cleaned or maintained during his service at Edinburgh were in fact contaminated. Further, he said that he was not aware of the results of the air monitoring tests that had apparently been conducted when aircraft flew to Maralinga. He also acknowledged that if the aircraft were contaminated, he had no evidence as to the level of their contamination. However, he maintained that he believed that the aircraft were contaminated, because of the special measures taken in connection with the servicing and cleaning of the aircraft. He said that he and the ground crew with whom he worked had been instructed to treat the aircraft as if they were contaminated.
36. It is clear from Mr Brinkworth’s evidence and from the documentary material before us that decontamination facilities existed at Edinburgh during the relevant period, and that the decontamination procedures formulated for use at Edinburgh were regularly adopted. We accept that there is no evidence before us that the aircraft were in fact contaminated, or if so, of the level of that contamination. However, there is evidence before us that steps were taken on a regular basis to decontaminate the aircraft that had returned to the Edinburgh base from flights to Maralinga, and s 5(2) of the Act does not require a vessel, vehicle, aircraft or equipment to be contaminated to any particular level of contamination.
37. We do not accept the comment by Dr Wilson in exhibit R2 to the effect that there was no need for aircraft to be decontaminated on their return to Edinburgh during the period of Mr Brinkworth’s service at that base. We have referred above to the evidence before us as to the minor trials being conducted at Maralinga throughout the relevant period. There is other evidence before us, not referred to by Dr Wilson, that indicates that the minor trials entailed radioactive contamination. The practice of using the air monitoring equipment on flights to Maralinga also suggests that there must have been a level of contamination to be measured, although there is no evidence before us of the results of the monitoring tests conducted.
38. Further, it appears likely from Mr Brinkworth’s evidence as to the use of cartridges on the Canberra aircraft that they landed at Maralinga at least on some occasions. It was common ground that the airfield was within thirty miles of the locations where the atomic bombs were exploded. Even though (as Mr Crowe contended) the radioactive clouds following the nuclear explosions are likely to have dispersed a long while before Mr Brinkworth served at the Edinburgh airbase, there is evidence before us that suggests that the contamination on the ground at Maralinga will continue for a very long period, so that it would still have existed during the relevant period. We think it likely that the Canberra aircraft would have been subjected to dust on occasions when they landed, and this of itself, quite apart from any effects of the minor trials, would have caused contamination.
39. In our view s 31(c) of the Act, which we set out in paragraph 33 above, has particular relevance to the present proceedings. Mr Brinkworth has experienced difficulties in obtaining evidence in support of his claim, and this has been in part due to the passage of time. He appears to have gone to some lengths to provide relevant material in support of his application to this tribunal. He was able to obtain some documents from the National Archives in Adelaide, Canberra and Melbourne. He said that he had endeavoured to contact the other members of the ground crew with whom he was working at the time, but found that they had either died or could not be located. Further, the tests in question were highly secret, and were being conducted by the British Government, and it was not possible for Mr Brinkworth to obtain evidence from that government. He has given evidence as to his own experience, and has produced some other documentary evidence, but we take into account, as required by s 31 of the Act, the difficulties that Mr Brinkworth has had in endeavouring to establish that the aircraft were in fact contaminated.
40. In Seltsam Pty Ltd v McGuiness, James Hardie Coy Pty Ltd v McGuiness (2000) 49 NSW LR 262, Spigelman CJ considered whether epidemiological evidence before a trial judge was such that an inference could be drawn that exposure to asbestos had caused renal cell carcinoma. His Honour reviewed a number of authorities dealing with the circumstances where an inference (in that case, of causation) could be drawn from other primary facts that had been established on the evidence adduced. His Honour made it clear that the proper approach was to look at whether the whole of the evidence rose above the level of a possibility, either alone or cumulatively. This approach was explained, eloquently and perhaps with a touch of the theatrical, by the Lord Chancellor, Lord Cairns, in one of the authorities referred to by Spigelman CJ, namely ReBelhaven and Stenton Peerage (1875) 1 App Cas 278. This case involved competing claims to the Scottish peerages of Belhaven and Stenton, and turned on circumstantial evidence as to the pedigree of the two claimants. Lord Cairns said (at page 279):
“My Lords, in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.”
41. We infer from the whole of the evidence before us, including the evidence as to the decontamination procedures adopted at Edinburgh, in conjunction with the evidence before us as to the conduct and consequences of the minor trails during the relevant period and the use of air monitoring equipment, that the aircraft were contaminated. Further, as we have said above, it was not possible to clean the cockpits of the aircraft because of the electrical wiring within the cockpits. This would have been the position at all times during and after the dropping of the nuclear bombs, and even if decontamination steps were taken at Amberley airbase immediately after the dropping of the nuclear bombs, it is likely that the cockpits continued to be contaminated for some time and until Mr Brinkworth commenced service at Edinburgh, either as a result of contamination following the dropping of the bombs or the subsequent flights of aircraft to or over Maralinga.
42. We now turn to the Commission’s last contention, namely that the measures adopted at Edinburgh in relation to servicing and clearing RAF aircraft constituted a fail-safe procedure.
43. There was no direct evidence of this. Of course, s 31(c) of the Act, to which we have referred above, applies to the Commission as well as to Mr Brinkworth. However, this subsection does not permit a decision-maker to ignore clear inferences arising from the circumstances of the particular case, or to provide either party with an “easy route” to a favourable decision, or to disregard the relevant statutory criteria: see the comments of Mansfield J in Fenner v Repatriation Commission (2005) 218 ALR 122, at [27], and the authorities to which his Honour there refers, when dealing with s 119(1) of the Veterans’ Entitlements Act 1986 (Cth). That section is almost identical to s 31 of the Act.
44. Reference is made in some authorities to a shifting of the evidential burden of proof, so that where a party adduces evidence of particular facts that give rise to an inference in favour of that party, and the opponent does not adduce any evidence, the evidential burden of proof shifts to the opponent; if the opponent adduces no evidence, the opponent runs the risk of losing the issue: see J.D. Heydon, Cross on Evidence, (7th Edition, 2004) at [7210].
45. We are mindful that under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) this tribunal is not bound by the rules of evidence. Similarly, under s 31(a) of the Act, this tribunal, standing in the shoes of the Commission, is not bound by the rules of evidence. However, the High Court of Australia has said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 628, that provisions of this kind are
“intended to be facultive, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.”
46. We also bear in mind the often cited passage from the judgment of Evatt J in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228, at 256, where after referring to a provision that the tribunal in that case was not bound by the rules of evidence, his Honour said:
“But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, throughout many generations, to evolve a method of inquiry best calculated to prevent error and innocent truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice”.”
47. We are also mindful that in McDonald (supra) Woodward J, in the context of matters in this tribunal, said (after referring to circumstances where facts were peculiarly within the knowledge of a party, and a failure by that party to produce evidence as to those facts might lead to an unfavourable inference being drawn) that it was not helpful to categorise what he called a “common-sense approach to evidence” as an example of an evidential onus of proof. Nevertheless, his Honour added (at page 358):
“The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go.”
48. In the proceedings before us the Commission has not adduced any evidence that the decontamination procedures adopted at Edinburgh during Mr Brinkworth’s service were merely “fail-safe” procedures. In these circumstances, the inference we have drawn from the evidence adduced by Mr Brinkworth from which we have inferred that the aircraft were contaminated has not been displaced, and we do not accept the Commission’s final contention.
49. For the sake of completeness, we add that the fact that Mr Brinkworth’s name was registered in the Roll does not establish that he was a “nuclear test participant” within the meaning of the Act. The criteria for inclusion in the Roll are quite different from the criteria referred to in the definition of “nuclear test participant” in the Act.
Decision
50. The tribunal sets aside the decision under review, and in place of that decision, decides that the applicant was a “nuclear test participant” and a person eligible to be provided with treatment under the Australian participants in British Nuclear Tests (Treatment) Act 2006 (Cth).
I certify that the 50 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis and Mr S Ellis AM, MemberSigned: ........................................................................... L. Wunderer Associate
Date/s of Hearing 17 December 2007
Date of Decision 29 February 2008
Applicant In Person
Lay Advocate for Applicant Mr A Hook
Advocate for the Respondent Mr A Crowe
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