JOHN SCHULZ and REPATRIATION COMMISSION - [2012] AATA 561

[2012] AATA 561

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/0749

Re

JOHN SCHULZ

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Senior Member Dr K S Levy RFD

Date 27 August 2012

Place Brisbane
The decision under review is affirmed.
....................[Sgd]......................................
Senior Member Dr K S Levy RFD
CATCHWORDS
VETERANS’ AFFAIRS – Pensions – Application for recognition of war-caused diseases – Statements of Principle – Section 180A Veterans Entitlement Act 1986 – Determination can be made by Repatriation Commission by Legislative Instrument – Words denoting obligatory or discretionary power to make a determination – Delegation of power – Power not delegated to the Administrative Appeals Tribunal to make a determination – Failure to make determination not a reviewable decision – Decision under review affirmed
LEGISLATION
Legislative Instruments Act 2003 (Cth) ss 5, 8, 42, 50, 58,
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 9, 120A, 175, 180A,
CASES
Australian Capital Television Pty Ltd v Minister for Transport and Communication (1989)
86 ALR 119
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Repatriation Commission v Deledio (1998) 83 FCR 82
Tasker v Fullwood [1978] 1 NSWLR 20
Victoria v Commonwealth and Connor (1975) 134 CLR 81
Ward v Williams (1955) 92 CLR 496
SECONDARY MATERIALS
Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007
Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Bill 1994 (Cth)
REASONS FOR DECISION
Senior Member Dr K S Levy RFD
27 August 2012

The applicant, John Schulz, has applied for recognition of a number of conditions, which he contends are war-caused, under s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). These conditions are peritoneal adhesions, hypertension and ischaemic heart disease (IHD).
The Repatriation Commission, by decision dated 11 April 2011, rejected the applicant’s claim that his peritoneal adhesions, hypertension and IHD were war-caused conditions. Dr Schulz appealed that decision to the Veterans’ Review Board. On 7 February 2012, the Veterans’ Review Board affirmed the Repatriation Commission decision in regard to the his claim for hypertension and IHD, but set aside the decision in regard to his peritoneal adhesions and decided that the condition was war-caused as defined in s 9 of the Act. Dr Schulz now applies to this Tribunal for review of the decision to reject his claim for Hypertension and IHD.
ISSUES
The respondent set out the issues arising from the decisions against which the applicant has appealed; that is, the clinical onset of the conditions and the application of the Statement of Principles issued by the Repatriation Medical Authority (RMA).
The applicant stated in his opening remarks to the Tribunal that he now frames his appeal based on two grounds:
(1)That he was denied natural justice; and
(2)That the Veterans’ Review Board failed to apply all relevant sections of the Act in reaching its decision.
Specifically, Dr Schulz argues that taking account of material which lead to an amendment to the Act in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JOHN SCHULZ and REPATRIATION COMMISSION

Details

AGLC: JOHN SCHULZ and REPATRIATION COMMISSION [2012] AATA 561
Case: [2012] AATA 561
Decision Date

CaseChat Overview and Summary

Dr John Schulz, a former military serviceman, sought a review of decisions by the Repatriation Commission and the Veterans’ Review Board which denied his claim for a pension related to hypertension and ischaemic heart disease (IHD). These conditions were alleged to have resulted from exposure to Agent Orange during his service in South Vietnam. The dispute was adjudicated by a tribunal, which was required to determine whether the Repatriation Commission had failed to apply relevant sections of the Act and whether the denial of the claim constituted a procedurally unfair decision. The central legal issues included whether the Commission was obliged to invoke section 180A of the Act, whether the Commission’s failure to make a determination under section 180A was a reviewable decision, and whether the Tribunal had the power to make such a determination.

The tribunal considered the statutory framework and the relevant provisions of the Act, particularly section 180A, which allows the Commission to make a determination by legislative instrument if it is of the opinion that such action is required. The tribunal noted that while the word “may” in section 180A(1) suggests discretion, it does not impose an obligation on the Commission to make a determination. Additionally, the tribunal examined the requirement for sufficient information to justify a determination and the need to specify the class of veterans and the basis of the claim. The tribunal concluded that no submission justifying a determination under section 180A had been made to the Commission. The tribunal also addressed the respondent's argument that the power to make such a determination had not been delegated and that the Tribunal lacked the authority to make such a decision.

The tribunal found that the Repatriation Commission and the Veterans’ Review Board had not acted unfairly in denying Dr Schulz’s claim. The tribunal held that the Commission was not obliged to invoke section 180A unless a proper submission was made, and that the Commission's failure to do so did not constitute a reviewable decision under section 175 of the Act. Furthermore, the tribunal confirmed that it did not have the power to make a determination under section 180A as the power had not been delegated to it. Therefore, the tribunal dismissed Dr Schulz's application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Specifically, Dr Schulz argues that taking account of material which lead to an amendment to the Act in 1994, the Repatriation Commission (and the Veterans’ Review Board) was obliged to apply s 180A of the Act and to draft a legislative instrument making him eligible for a pension for the conditions of hypertension and IHD which, on his submissions, resulted from exposure to Agent Orange in South Vietnam.EVIDENCE The background facts can be briefly stated:(1)Dr Schulz is a qualified medical practitioner, now aged almost 77 years.(2)He served in South Vietnam with the Royal New Zealand Army Medical Corps from 9 February 1971 to 26 August 1971 a total of 178 days. He served in South Vietnam in an area proximate to 173 Airborne Brigade, a United States military formation. He says he had a 25 week exposure to Agent Orange. He has given evidence previously that he travelled through defoliated areas there and he also contends the groundwater was contaminated by chemicals as a result of spraying Agent Orange by the American Forces.(3)He subsequently joined the Australian Army as a medical officer and initially served with Army Reserve Units. (4)The previous determinations by the Repatriation Commission and the Veterans’ Review Board considered the relevant Statement of Principles (SoPs). Under the SoP for Hypertension (Instrument Numbers 11 of 2008 and No. 35 of 2003), it was not apparent that any factors specified there were satisfied by Dr Schulz. With respect to the SoP for IHD (Instrument No. 89 of 2007; No. 43 of 2009; and No. 96 of 2010), Factor 6(va) refers to the chemicals 2, 4-D and 2, 4, 5-T, which are known to be components of Agent Orange. It was not accepted that he satisfied the relevant factors for IHD. Therefore, he failed to demonstrate a connection between those conditions and his military service in Vietnam. The major submissions to this Tribunal include, inter alia:(1)Dr Schulz now submits the Repatriation Commission and the VRB were wrong in not pursuing his claim under s 180A of the Act. He says:a. He has never claimed that he satisfied the SoP.b. In relation to step 4 of Repatriation Commission v Deledio (1998) 83 FCR 82 (the fact determination stage), extracts of the Parliamentary debate and second reading speech pertaining to the Veterans’ Affairs (1994–1995 Budget Measures) Legislation Amendment Bill 1994 (it became Act No. 98 of 1994) reveal a need to accept medical evidence other than the RMA determinations.c. The then Minister for Veterans’ Affairs regarded that the power to further recognise conditions of veterans outside an SoP as pronounced by the RMA under s 196B of the Act, is available under s 180A of the Act.(2)The respondent said there is no dispute about Dr Schulz satisfying the requirements of having served on operational service (s 6C(2) of the Act). Likewise, there is no dispute that Dr Schulz has hypertension and IHD. Hypertension was diagnosed in 1988; and evidence of IHD was presented to the Veterans’ Review Board. While there is some indication that he previously claimed some symptoms of that latter condition at an earlier date, the medical evidence shows he did not satisfy Factor 6 of the relevant SoP.(3)The respondent also said such a power to strike a legislative instrument under s 180A of the Act has not been delegated. It further said that the answer to the applicant’s case rests on considering three other issues:a. Is the Commission required to invoke s 180A to further assess an applicant’s claim;b. If it does not make a determination pursuant to s 180A, is that a “reviewable decision” under s 175 of the Act; andc. If the claim is refused and the respondent does not make a determination under s 180A, can the Tribunal make a determination under that section?(4)The respondent further argued that there is no power for the Tribunal to make such a decision as the power in that section has not been delegated to the Administrative Appeals Tribunal (see Instrument No. R05/11 dated 17 October 2011). In addition, the Secretary says to invoke such a power, the Commission will first need to have a submission to enable it to assess the need for a determination and any terms relevant to its issue.CONSIDERATION

Decision

Reasons for decision

While a determination has been made in the Repatriation Commission and the Veterans’ Review Board, those decisions were decisions made on the basis of the law as set down by statute and its subordinate instruments (SoPs). The opportunity to be heard and to obtain a decision which the applicant seeks depends on an application being made to the Repatriation Commission under s 180A and providing all the information necessary for the Commission to make such a determination. While the applicant’s case has been submitted to the Veterans’ Review Board and now to this Tribunal, a determination under s 180A can, however, only be made by the Commission as the law presently stands. The procedural fairness in issue is subject to certain procedural requirements under s180A but these have not been undertaken by Dr Schulz to date. I deal with the substantive requirements of s180A under Issue 2 below but, subject to what is said there, I cannot find any absence of procedural fairness. Issue 2: Have the decision makers of the decisions under review failed to apply all relevant sections of the Act? As stated earlier, this question is to be answered by the 3 subsidiary questions as set out in paragraph 7(3) above. I deal with the interacting provisions in a composite way below. In relation to the applicant’s submissions about the Explanatory Memorandum to the Amendment Bill and the references to the various views about the legislation as espoused by Members of Parliament in connection with the veterans’ entitlements under the Act, I have concluded that while they are relevant, ultimately, the proper approach is to determine the meaning of those provisions by the usual rules of statutory interpretation. The Explanatory Memorandum and any other secondary legislative materials are legitimate sources of information to help in the interpretation process, but the words of the Act must be the primary influence. A determination made under s 180A of the Act must be by legislative instrument (subs 180A(2) and/or (3)) and that instrument must be in writing (s 5 of the Legislative Instruments Act2003 (Cth)). Subsection 180A(1) provides that the Commission may make a determination (by legislative instrument) if it is of the opinion that such action is required. To satisfy subs 180A(2),(3) and (7), it is clear that a case must first be put to the Commission for it to consider whether such a determination should be made. If a case is put to the Commission, then, the Commissioner “may, in its discretion, make a determination under sub 180A(1). Does the use of the word “may” place an obligation on the Commission to make a determination as submitted by the applicant? Ultimately, if a determination is made, the Commission must have sufficient information to justify making a determination by legislative instrument, and it must specify the class of veterans or members to whom it would be relevant (see subs 180A(2)(a) and 180A(3)(a)) and an acceptable basis of claim (e.g. because of operational service – see sub 180A(2)(b)(i); or because of eligible war service – see sub 180A(3)(b)(i)). If any determination is made, it must be able to set out the factors which must exist as a minimum to be relevant to the defence service rendered by a veteran (see sub 180A(7)). As I understand it, no submission which would justify making a determination under s 180A has been put to the Secretary of the Department or the Commission.

Ratio Decidendi

Legal Principle Established

The major submissions to this Tribunal include, inter alia:(1)Dr Schulz now submits the Repatriation Commission and the VRB were wrong in not pursuing his claim under s 180A of the Act. He says:a. He has never claimed that he satisfied the SoP.b. In relation to step 4 of Repatriation Commission v Deledio (1998) 83 FCR 82 (the fact determination stage), extracts of the Parliamentary debate and second reading speech pertaining to the Veterans’ Affairs (1994–1995 Budget Measures) Legislation Amendment Bill 1994 (it became Act No. 98 of 1994) reveal a need to accept medical evidence other than the RMA determinations.c. The then Minister for Veterans’ Affairs regarded that the power to further recognise conditions of veterans outside an SoP as pronounced by the RMA under s 196B of the Act, is available under s 180A of the Act.(2)The respondent said there is no dispute about Dr Schulz satisfying the requirements of having served on operational service (s 6C(2) of the Act). Likewise, there is no dispute that Dr Schulz has hypertension and IHD. Hypertension was diagnosed in 1988; and evidence of IHD was presented to the Veterans’ Review Board. While there is some indication that he previously claimed some symptoms of that latter condition at an earlier date, the medical evidence shows he did not satisfy Factor 6 of the relevant SoP.(3)The respondent also said such a power to strike a legislative instrument under s 180A of the Act has not been delegated. It further said that the answer to the applicant’s case rests on considering three other issues:a. Is the Commission required to invoke s 180A to further assess an applicant’s claim;b. If it does not make a determination pursuant to s 180A, is that a “reviewable decision” under s 175 of the Act; andc. If the claim is refused and the respondent does not make a determination under s 180A, can the Tribunal make a determination under that section?(4)The respondent further argued that there is no power for the Tribunal to make such a decision as the power in that section has not been delegated to the Administrative Appeals Tribunal (see Instrument No. R05/11 dated 17 October 2011). In addition, the Secretary says to invoke such a power, the Commission will first need to have a submission to enable it to assess the need for a determination and any terms relevant to its issue.CONSIDERATION I have considered all of the evidence submitted by the parties. I note the merits of the applicant’s case in respect of hypertension and IHD as set out by the relevant SoP, and that those claims were not made out under s 120A(3) of the Act in the determinations of the Repatriation Commission and the Veterans’ Review Board. The applicant has not put in issue a determination based on the statutory law and the SOPs but submits alternative bases for acceptance of his submissions. Accepting that Dr Schulz has the two conditions which have been rejected by the Repatriation Commission and the Veterans’ Review Board, the substantive questions here are those set out in the Issues section as amplified by the respondent’s submissions outlined in paragraph 7(3) above. The Relevant Law

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0749
Re	JOHN SCHULZ
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Senior Member Dr K S Levy RFD
Date	27 August 2012
Place	Brisbane